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This is a Bill, not an Act. For current law, see the Acts databases.
Queensland
WORKPLACE RELATIONS
BILL 1996
Queensland
WORKPLACE RELATIONS BILL 1996
TABLE OF PROVISIONS
Section Page
CHAPTER 1--PRELIMINARY
1 Short title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
2 Commencement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
3 Principal object of this Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
4 Definitions--the dictionary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
5 References to making false or misleading statements . . . . . . . . . . . . . . . . . 28
6 References to engaging in conduct . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
7 Who is an employee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
8 Who is an employer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
9 What is an industrial matter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
CHAPTER 2--AGREEMENTS
PART 1--CERTIFIED AGREEMENTS
Division 1--Preliminary
10 Object of pt 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
11 Commission's functions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
12 Single business and employers taken to be 1 employer . . . . . . . . . . . . . . . . 33
13 Additional operation of part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
14 Nominal expiry date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
15 Valid majority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
16 Working day . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Division 2--Making agreements
17 What this division covers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
18 Nature of agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
19 Agreement with employee organisations . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
2
Workplace Relations
20 Agreement with employees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
21 Certificate as to requested representation . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
22 Greenfields agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
23 Time for applying for certification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Division 3--Certifying agreements
24 Certain employee organisations not to be heard . . . . . . . . . . . . . . . . . . . . . . 40
25 Certifying an agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
26 When commission to refuse to certify an agreement . . . . . . . . . . . . . . . . . . 42
27 Other options open to commission instead of refusing to certify an
agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
28 Procedures for preventing and settling disputes . . . . . . . . . . . . . . . . . . . . . . 44
Division 4--Effect of certified agreements
29 When a certified agreement is in operation . . . . . . . . . . . . . . . . . . . . . . . . . 45
30 Effect of a certified agreement in relation to awards and other
agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Division 5--Persons bound by certified agreements
31 Persons bound . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
32 Successor employers bound . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Division 6--Extending, amending or terminating certified
agreements
33 Extending the nominal expiry date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
34 Amending a certified agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
35 Amendment if discrimination between unionists and non-unionists . . . . . . 49
36 Other options open to commission instead of refusing to approve
amendment of an agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
37 Terminating a certified agreement on or before its nominal expiry date . . 50
38 Terminating a certified agreement after its nominal expiry date . . . . . . . . 51
39 Terminating an agreement in a way provided under agreement
after nominal expiry date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Division 7--Negotiations for certified agreements etc.
40 Initiation of bargaining period . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
41 Particulars to accompany notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
42 When bargaining period begins . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
43 Protected action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
3
Workplace Relations
44 Industrial action must not involve secondary boycott . . . . . . . . . . . . . . . . . . 55
45 Industrial action etc. must not be taken until after nominal expiry
date of certain agreements and awards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
46 Notice of action to be given . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
47 Negotiation must precede industrial action . . . . . . . . . . . . . . . . . . . . . . . . . . 58
48 Secret ballot for bargaining period . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
49 Industrial action must be properly authorised . . . . . . . . . . . . . . . . . . . . . . . . 60
50 What happens if application to certify agreement is not made
within 21 days . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
51 Immunity provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
52 Employer not to dismiss employee etc. for engaging in protected action . . 62
53 When bargaining period ends . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
54 Power of commission to suspend or terminate bargaining period . . . . . . . . 63
55 What happens if commission terminates a bargaining period
under s 54(3) or (7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
56 Powers of commission and full bench when s 55 applies . . . . . . . . . . . . . . . 67
57 Awards under s 55 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
58 Commission not to arbitrate during bargaining period . . . . . . . . . . . . . . . . . 69
59 Conciliation for agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
60 Employers not to discriminate between unionist and non-unionist . . . . . . . 69
Division 8--Prohibition of coercion in relation to agreements
61 Coercion of persons to make, amend or terminate certified
agreements etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
Division 9--Enforcement and remedies
62 Penalty provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
63 Penalties for contravening penalty provisions . . . . . . . . . . . . . . . . . . . . . . . . 71
64 Reinstatement and compensation if employer contravenes s 52 . . . . . . . . . 73
Division 10--General
65 Secret ballot on valid majority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
66 Complementary laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
PART 2--QUEENSLAND WORKPLACE AGREEMENTS
Division 1--Preliminary
67 Object of pt 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
68 Definitions for pt 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
4
Workplace Relations
69 Proposed QWAs and ancillary documents--interpretation . . . . . . . . . . . . . 76
70 Functions and powers of enterprise commissioner . . . . . . . . . . . . . . . . . . . . 77
71 Protocol regarding employment advocate's functions . . . . . . . . . . . . . . . . . 77
Division 2--General rules about QWAs and ancillary documents
72 QWAs and ancillary documents only have effect as provided by
this part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
73 Collective QWAs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
Division 3--Making, amending or terminating a QWA
74 Employer and employee may make a QWA . . . . . . . . . . . . . . . . . . . . . . . . . 78
75 Matters to be included in QWA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
76 Nominal expiry date of QWA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
77 Period of operation of QWA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
78 Bargaining agents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
79 Amending a QWA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
80 Terminating a QWA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
Division 4--Filing and approving QWAs and ancillary documents
81 Filing QWAs and ancillary documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
82 Filing requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
83 Employer's declaration must be accurate . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
Division 5--Approving QWAs and ancillary documents
84 Additional approval requirements for QWA and ancillary documents . . . . 84
85 Approving QWA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
86 Approving amendment agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
87 Approving other ancillary documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
88 Enterprise commissioner must issue approval or refusal notice . . . . . . . . . . 87
89 Undertakings taken to be included in QWAs . . . . . . . . . . . . . . . . . . . . . . . . 88
90 Enterprise commissioner to issue copies of approved QWAs and
ancillary documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
Division 6--Effect of a QWA
91 Effect of QWA on awards and agreements . . . . . . . . . . . . . . . . . . . . . . . . . . 88
92 QWA binds employer's successor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
93 Parties must not contravene QWA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
94 Conciliation for agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
5
Workplace Relations
95 Industrial action by party to QWA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
Division 7--Enforcement and remedies
96 Penalties for contravening this part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
97 Damages for contravention of QWA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
98 Compensation to new employee for shortfall in entitlements . . . . . . . . . . . 90
99 Injunctions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
Division 8--Limited immunity for industrial action
100 Meaning of expressions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
101 Limited immunity conferred . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
102 Immunity conditional on giving notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
103 Employer not to dismiss etc. an employee for taking QWA
industrial action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
Division 9--General
104 Hindering QWA negotiations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
105 Persons must not apply duress or make false statements in
connection with QWA etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
106 Employer must give copy of documents to employee . . . . . . . . . . . . . . . . . 94
107 Intervention not permitted . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95
108 Hearings to be in private . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95
109 Identity of QWA parties not to be disclosed . . . . . . . . . . . . . . . . . . . . . . . . . 95
110 Enterprise commissioner not to publish QWA decision or interpretation . . 96
111 Reports and advice about development in making QWAs . . . . . . . . . . . . . . 96
112 Interpretation of a QWA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
113 Evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
114 Signature for corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97
PART 3--NO-DISADVANTAGE TEST
115 Definitions for pt 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97
116 When does an agreement pass the no-disadvantage test . . . . . . . . . . . . . . . 99
117 Special case--employee eligible for supported wage system . . . . . . . . . . . 100
118 Special case--employee undertaking approved traineeship . . . . . . . . . . . . 100
119 Special case--employee undertaking approved apprenticeship . . . . . . . . . 101
120 Determination of designated awards for certified agreement . . . . . . . . . . . . 102
121 Determination of designated awards for QWA . . . . . . . . . . . . . . . . . . . . . . . 102
6
Workplace Relations
CHAPTER 3--AWARDS
PART 1--OBJECTS
122 Objects of ch 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103
PART 2--COMMISSION'S FUNCTIONS GENERALLY
123 Performance of commission's functions under this chapter . . . . . . . . . . . . . 103
124 No automatic flow-on of certain agreements . . . . . . . . . . . . . . . . . . . . . . . . . 104
PART 3--FORM AND APPLICATION
125 Form, effect and term of award . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105
126 Persons bound by award . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105
PART 4--COMMISSION'S POWERS
127 Making, amending and repealing awards . . . . . . . . . . . . . . . . . . . . . . . . . . . 106
128 Allowable award matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107
129 Limitation on commission's powers for awards . . . . . . . . . . . . . . . . . . . . . . . 109
130 Exceptional matters orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110
131 Allowable award matters to be dealt with by full bench . . . . . . . . . . . . . . . 111
132 General rulings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111
PART 5--OTHER REQUIREMENTS
133 Inclusion of enterprise flexibility provisions in awards . . . . . . . . . . . . . . . . . 112
134 Some requirements about structure and content etc. of awards and
orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113
135 Dispute resolution procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114
PART 6--EXEMPTIONS
136 Exemptions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115
PART 7--GENERAL
137 Enforceability of awards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116
138 Effect of appeals on awards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116
139 Inconsistency between awards and contracts . . . . . . . . . . . . . . . . . . . . . . . . 116
CHAPTER 4--GENERAL EMPLOYMENT CONDITIONS
PART 1--MINIMUM WAGES
140 Object of pt 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117
141 Meaning of expressions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117
142 Orders setting minimum wages . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117
7
Workplace Relations
143 Orders only on application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117
144 When commission may make order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117
145 Matters to be considered when setting minimum wages . . . . . . . . . . . . . . . 119
146 Part does not limit other rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119
147 Orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119
148 Inconsistent industrial instruments or orders . . . . . . . . . . . . . . . . . . . . . . . . . 120
PART 2--EQUAL REMUNERATION FOR WORK OF EQUAL
VALUE
149 Object of part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120
150 Meaning of expressions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120
151 Orders requiring equal remuneration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120
152 Orders only on application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121
153 When commission must and may only make order . . . . . . . . . . . . . . . . . . . 121
154 Immediate or progressive introduction of equal remuneration . . . . . . . . . . . 121
155 Employer not to reduce remuneration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121
156 Part does not limit other rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122
157 Applications under this part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122
PART 3--PARENTAL LEAVE
Division 1--Preliminary
158 Object of pt 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123
159 Basic principles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123
160 Definitions for pt 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 124
Division 2--Maternity leave
161 Entitlement to maternity leave . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126
162 Conditions of entitlement to maternity leave . . . . . . . . . . . . . . . . . . . . . . . . 126
163 Period of maternity leave . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 128
164 Entitlement reduced by other maternity leave available to employee . . . . 129
165 Taking annual or long service leave instead of, or in conjunction
with, maternity leave . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 130
166 Extending maternity leave . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131
167 Shortening maternity leave . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131
168 Effect on maternity leave of failure to complete 1 year of
continuous service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 132
8
Workplace Relations
169 Effect on maternity leave if pregnancy terminates or child dies . . . . . . . . . 132
170 Effect on maternity leave of ceasing to be the primary care-giver . . . . . . . 133
171 Return to work after maternity leave . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133
172 Transfer to safe duties because of pregnancy . . . . . . . . . . . . . . . . . . . . . . . . 134
Division 3--Paternity leave
173 Entitlement to paternity leave . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 134
174 Conditions of entitlement to short paternity leave . . . . . . . . . . . . . . . . . . . . 134
175 Conditions of entitlement to long paternity leave . . . . . . . . . . . . . . . . . . . . . 136
176 Period of long paternity leave . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137
177 Entitlement reduced by other paternity leave available to employee . . . . . 138
178 Taking annual or long service leave instead of, or in conjunction
with, paternity leave . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 139
179 Extending long paternity leave . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 139
180 Shortening paternity leave . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 140
181 Effect on long paternity leave of failure to complete 1 year of
continuous service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 140
182 Effect on long paternity leave if pregnancy terminates or child dies . . . . . 140
183 Effect on paternity leave of ceasing to be the primary care-giver . . . . . . . . 141
184 Return to work after paternity leave . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141
Division 4--General
185 Employee's duty if excessive leave approved or if maternity
leave and paternity leave overlap . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142
186 Employer to warn replacement employee that employment is
only temporary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 143
187 Parental leave and continuity of service . . . . . . . . . . . . . . . . . . . . . . . . . . . . 144
188 Effect of part on other laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 144
189 Regulations for adoption leave . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 144
PART 4--LONG SERVICE LEAVE
190 Definitions for pt 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 144
191 Source of long service leave entitlement . . . . . . . . . . . . . . . . . . . . . . . . . . . 145
192 Approval of long service leave conditions . . . . . . . . . . . . . . . . . . . . . . . . . . . 146
193 Entitlement to long service leave . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 146
194 Long service leave in sugar industry and meat works . . . . . . . . . . . . . . . . . 147
195 Long service leave for other seasonal employees . . . . . . . . . . . . . . . . . . . . . 150
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196 Long service leave for employees not governed by awards etc. . . . . . . . . . 150
197 Continuity of service generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 151
198 Determining length of continuous service . . . . . . . . . . . . . . . . . . . . . . . . . . . 153
199 Service in Defence Force . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 154
200 Service of casual employees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 155
201 Taking long service leave . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 156
202 Taking long service leave--casual employees . . . . . . . . . . . . . . . . . . . . . . . 157
203 Payment for long service leave . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 157
204 Payment for long service leave--casual employees . . . . . . . . . . . . . . . . . . 158
205 Payment instead of long service leave . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 159
206 Inquiry on re-employment of employee during long service leave . . . . . . . 160
207 Recognition of certain exemptions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 161
208 Person may be "employer" and "employee" . . . . . . . . . . . . . . . . . . . . . . . . 161
209 Service in apprenticeship or traineeship . . . . . . . . . . . . . . . . . . . . . . . . . . . . 161
PART 5--OTHER LEAVE
210 Annual leave accrued during apprenticeship or traineeship . . . . . . . . . . . . . 162
211 Sick leave accrued during apprenticeship or traineeship . . . . . . . . . . . . . . . 162
212 Continuity of employment for sick leave . . . . . . . . . . . . . . . . . . . . . . . . . . . . 162
CHAPTER 5--DISMISSALS
PART 1--OBJECTS AND INTERPRETATION
213 Objects of ch 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 164
214 Meaning of expressions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 164
215 Complementary laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 165
216 Exclusion of employees from part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 165
PART 2--UNLAWFUL DISMISSALS
217 When dismissal is unlawful . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 166
218 Application to remedy unlawful dismissal . . . . . . . . . . . . . . . . . . . . . . . . . . . 167
219 Conciliation before application heard . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 167
220 What to consider in deciding if dismissal is harsh, unjust or
unreasonable . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 168
221 Onus of proof . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 169
222 Remedies and sanctions for unlawful dismissal . . . . . . . . . . . . . . . . . . . . . . 169
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Workplace Relations
223 Further orders if employer fails to reinstate . . . . . . . . . . . . . . . . . . . . . . . . . . 171
224 Effect of order on leave . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 171
225 Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 171
PART 3--REQUIREMENTS FOR DISMISSAL
226 Notice of dismissal or compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 172
227 Orders giving effect to articles 12 and 13 of Convention . . . . . . . . . . . . . . . 174
228 Orders if employer does not consult about proposed dismissals . . . . . . . . . 175
229 Employer must notify Commonwealth employment service of
proposed dismissals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 176
PART 4--OTHER DISMISSALS
230 Employee dismissed in December, re-employed in January . . . . . . . . . . . . 177
231 Permissible stand-down of employee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 178
PART 5--PROTECTION OF INJURED EMPLOYEES
232 Definitions for pt 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 178
233 Wages to be paid for the day employee injured . . . . . . . . . . . . . . . . . . . . . . 179
234 Reinstatement of injured employees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 179
235 Dismissal an offence in certain cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 180
236 Preservation of employee's rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 180
PART 6--GENERAL
237 Chapter does not limit other rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 180
238 Inconsistent instruments and orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 181
CHAPTER 6--INDUSTRIAL DISPUTES
PART 1--NOTICE OF INDUSTRIAL DISPUTE
239 Notice of industrial dispute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 181
PART 2--ACTION FOR SETTLING INDUSTRIAL DISPUTES
240 Action on industrial dispute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 182
241 Recommendation by consent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 184
242 Mediation by commissioner or magistrate . . . . . . . . . . . . . . . . . . . . . . . . . . . 184
243 Compulsory conference . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 185
PART 3--BALLOTS
244 Secret ballot on strike action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 185
245 Effect of ballot adverse to strike . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 186
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PART 4--INDUSTRIAL ACTION
246 Nonparticipation in industrial action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 187
247 Indemnity against agent's unauthorised actions . . . . . . . . . . . . . . . . . . . . . . 188
248 Payments for strikes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 188
249 Orders the commission may make . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 190
250 Commission not to deal with claims for payments for strikes . . . . . . . . . . . 190
251 Right to refuse to work if imminent health or safety risk . . . . . . . . . . . . . . . 191
CHAPTER 7--INDUSTRIAL TRIBUNALS AND REGISTRAR
PART 1--INDUSTRIAL COURT
Division 1--Industrial Court continued
252 Continuance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 191
Division 2--President
253 Appointment of president . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 191
254 When president holds office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 192
255 Acting president . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 192
Division 3--Jurisdiction and powers of the court
256 Constitution of court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 193
257 President's jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 193
258 Court's jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 193
259 Court's jurisdiction is exclusive . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 194
260 Binding nature of court's interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 195
261 Court may refuse to proceed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 195
262 Decision of full industrial court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 195
Division 4--President's annual report
263 President's annual report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 196
Division 5--President's advisory council
264 Establishment of advisory council . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 196
265 Term of office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 197
266 Remuneration of appointed members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 197
267 Functions of advisory council . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 197
268 Meetings of advisory council . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 197
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PART 2--INDUSTRIAL RELATIONS COMMISSION
Division 1--Continuance, composition and constitution
269 Continuance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 198
270 Composition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 198
271 Constitution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 198
Division 2--Members of the commission
272 Appointment of members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 198
273 When member holds office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 199
274 Acting chief commissioner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 200
275 Acting members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 200
276 Restrictions etc. on appointment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 200
277 Removal of members from office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 201
278 Administrative responsibilities of chief commissioner . . . . . . . . . . . . . . . . . 201
Division 3--The commission
279 Commission's jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 201
280 Commission to take account of Anti-Discrimination Act . . . . . . . . . . . . . . . 203
281 Commission's jurisdiction is exclusive . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 203
282 Commission may refuse to proceed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 203
283 Chief commissioner to consider efficiencies that may be
achieved by allocating matters to dual commissioners . . . . . . . . . . . . . . . . 204
284 Reallocation of commission's work . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 204
285 Commission may continue to hear reallocated work without
re-hearing evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 204
286 Decision of full bench . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 205
Division 4--Commission's functions
287 Commission's functions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 205
288 Performance of commission's functions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 206
Division 5--Powers of commission
289 General powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 206
290 Power to amend or void contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 207
291 Power to grant injunctions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 208
292 Power to direct or order in relation to industrial action . . . . . . . . . . . . . . . . 209
293 Orders about representation rights of employee organisations . . . . . . . . . . . 210
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294 Procedures for reopening . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 212
295 Reference to full bench . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 213
296 Case stated to court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 213
297 Remission to magistrate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 214
298 Power to enter and inspect . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 214
299 Interpretation of awards and certified agreements . . . . . . . . . . . . . . . . . . . . 215
300 Statement of policy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 216
301 Conducting a secret ballot . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 216
302 Other powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 218
Division 6--Member's conditions of appointment
303 Remuneration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 218
304 Pension benefits--Judges (Pensions and Long Leave) Act . . . . . . . . . . . . . 218
305 Pension benefits--Superannuation Acts . . . . . . . . . . . . . . . . . . . . . . . . . . . . 219
306 Leave of absence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 221
PART 3--INDUSTRIAL MAGISTRATES
Division 1--Industrial Magistrates Court
307 Industrial Magistrates Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 221
Division 2--Industrial magistrates
308 Office of Industrial Magistrate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 221
Division 3--Constitution and jurisdiction of Industrial Magistrates
Court
309 Constitution of Industrial Magistrates Court . . . . . . . . . . . . . . . . . . . . . . . . . 222
310 Magistrate's jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 222
311 Magistrates' jurisdiction is exclusive . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 223
Division 4--Powers of industrial magistrates
312 Magistrate's powers on remission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 224
PART 4--INDUSTRIAL REGISTRAR
Division 1--Industrial registrar's office continued
313 Continuance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 224
Division 2--Role of industrial registrar's office
314 Role of office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 224
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Division 3--Industrial registrar and staff
315 Industrial registrar and staff . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 225
316 Functions and powers of registrar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 225
317 Functions of assistant registrar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 225
318 Delegation by registrar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 226
PART 5--ARRANGEMENTS WITH OTHER AUTHORITIES
Division 1--Commissioner may also be member of Australian
commission
319 Commissioner may hold other appointment . . . . . . . . . . . . . . . . . . . . . . . . . 226
Division 2--Dual commissioners
320 Appointment of Commonwealth official as commissioner . . . . . . . . . . . . . . 226
321 Role of dual commissioner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 227
Division 3--References to Commonwealth official
322 Reference of matter to Commonwealth official . . . . . . . . . . . . . . . . . . . . . . 228
Division 4--Conferences and joint sessions with industrial
authorities
323 Conferences with industrial authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 228
324 Joint sessions with industrial authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . 229
325 Similar matters before full bench and industrial authority . . . . . . . . . . . . . . 229
326 Commissioner's powers in joint session . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 230
327 Chief commissioner may decide matter not to be dealt with in
joint session . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 230
328 Restriction on chief commissioner's authority . . . . . . . . . . . . . . . . . . . . . . . 230
Division 5--Other functions etc. and arrangements
329 Functions and powers vested in commission by other jurisdictions . . . . . . 230
330 Arrangements with Commonwealth public service . . . . . . . . . . . . . . . . . . . . 231
PART 6--PROCEEDINGS OF COURT, COMMISSION,
MAGISTRATES AND REGISTRAR
Division 1--Definitions
331 Definitions for pt 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 231
Division 2--Starting proceedings and service of process
332 Starting proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 232
333 Service of process . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 232
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Division 3--Conduct of proceedings
334 Representation of parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 233
335 Basis of procedures and decisions of the commission and magistrates . . . 235
336 Competence and compellability of witnesses . . . . . . . . . . . . . . . . . . . . . . . . 236
337 Intervention by State or Minister . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 236
338 Adjournment by registrar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 236
339 State employee to give information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 237
Division 4--Powers
340 Exercise of commission's powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 237
341 Interlocutory proceedings and chamber matters . . . . . . . . . . . . . . . . . . . . . . 237
342 Power to order inquiry or taking of evidence . . . . . . . . . . . . . . . . . . . . . . . . . 238
343 Power to administer oath . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 239
344 Powers incidental to exercise of jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . 239
345 Power to obtain data and expert evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . 240
Division 5--Decisions and enforcement
346 Decisions generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 241
347 Reserved decisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 241
348 Commission decisions to be in plain English . . . . . . . . . . . . . . . . . . . . . . . . 242
349 Extent of decisions and their execution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 242
350 Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 243
351 Enforcing commission's orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 243
352 Remedies on show cause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 245
353 Proceeding of commission or magistrate not to be questioned . . . . . . . . . . 246
354 Filing magistrate's decision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 246
355 Recovery of amounts under orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 247
Division 6--Protections and immunities
356 Protection and immunities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 247
Division 7--Rules of court and practice
357 Rules of court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 248
358 Directions about practice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 249
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PART 7--APPEALS
Division 1--Appeals to Court of Appeal
359 Appeal from court to Court of Appeal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 250
Division 2--Appeals to Industrial Court
360 Appeal from commission, magistrate or registrar to court . . . . . . . . . . . . . . 250
361 Court may vary penalty on appeal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 251
Division 3--Appeals to Industrial Relations Commission
362 Appeals from commissioner to full bench with leave . . . . . . . . . . . . . . . . . . 251
363 Appeal from magistrate to commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 252
364 Appeal from registrar to full bench . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 253
365 President may stay decisions when leave sought . . . . . . . . . . . . . . . . . . . . . 254
366 Decisions on appeal that are final . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 254
367 Appeal to commission against stand-downs . . . . . . . . . . . . . . . . . . . . . . . . . 254
Division 4--Appeals to both Industrial Court and Industrial
Relations Commission
368 Appeals from commissioner to both court and full bench . . . . . . . . . . . . . . 255
Division 5--General
369 Nature of appeal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 256
370 Time limited for appeal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 256
CHAPTER 8--ADMINISTRATION
PART 1--EMPLOYMENT ADVOCATE
371 Employment Advocate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 256
372 Functions and powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 257
373 Delegation by employment advocate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 258
374 Annual report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 259
375 Complementary laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 259
PART 2--INSPECTORS
Division 1--Appointment
376 Appointment of inspectors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 259
377 Limitation of inspector's powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 260
378 Inspector's appointment conditions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 260
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Division 2--Identity cards
379 Identity card . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 261
380 Production or display of identity card . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 261
Division 3--General powers
381 Entry to places . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 262
382 General powers after entering places . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 262
383 Power to require documents to be produced . . . . . . . . . . . . . . . . . . . . . . . . . 263
384 Power to require information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 264
385 Power to require name and address . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 264
Division 4--Powers to claim and deal with unpaid amounts
386 Paying employee's wages etc. to inspector . . . . . . . . . . . . . . . . . . . . . . . . . . 265
387 Inspector's obligation for amounts paid on demand . . . . . . . . . . . . . . . . . . . 266
Division 5--General
388 Obstructing inspectors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 267
389 Impersonating inspectors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 267
390 Validity of inspector's conduct despite administrative contravention . . . . . 268
CHAPTER 9--RECORDS AND WAGES
PART 1--EMPLOYERS RECORDS
Division 1--Definitions
391 Definitions for pt 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 268
Division 2--Authorised industrial officers
392 Authorising industrial officers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 269
393 Revocation and suspending industrial officer's authorisation . . . . . . . . . . . 270
Division 3--Employers to keep certain records
394 Time and wages record--industrial instrument employees . . . . . . . . . . . . . 270
395 Time and wages record--non-industrial instrument employees . . . . . . . . . . 272
396 Employee register . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 273
397 Records to be kept in English . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 274
398 Notation of wages details . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 274
Division 4--Power to inspect certain records
399 Inspection of time and wages record--inspector . . . . . . . . . . . . . . . . . . . . . . 275
400 Right of entry--authorised industrial officer . . . . . . . . . . . . . . . . . . . . . . . . . 276
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401 Inspection of time and wages record--authorised industrial officer . . . . . . 277
402 Inspection of employee register and index--registrar . . . . . . . . . . . . . . . . . . 279
403 Inspection of time and wages book--employees . . . . . . . . . . . . . . . . . . . . . 279
PART 2--WAGES AND OCCUPATIONAL SUPERANNUATION
Division 1--Interpretation
404 Definitions for pt 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 280
405 References to service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 281
Division 2--Protection for wages
406 Wages are first charge on amounts payable to employer . . . . . . . . . . . . . . . 281
407 Assignment of amount payable ineffectual against claims for wages . . . . . 282
408 Amounts paid or payable to employer to be applied in payment of
wages . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 282
409 Attachment notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 283
410 Effect of attachment notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 283
411 Orders for payment by prime contractor or clerk of the court . . . . . . . . . . . 284
412 Employees to be paid according to when attachment notices are served . . 285
413 Employee may sue prime contractor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 286
414 Cessation of attachment not to prejudice prime contractor . . . . . . . . . . . . . 287
415 Discharge by employee for payment received . . . . . . . . . . . . . . . . . . . . . . . 287
416 Remedy of subcontractor's employees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 287
417 Prime contractor's right to reimbursement . . . . . . . . . . . . . . . . . . . . . . . . . . . 288
418 Magistrate may hear claim for wages ex parte . . . . . . . . . . . . . . . . . . . . . . . 288
Division 3--Paying and recovering wages
419 Wages to be paid without deduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 288
420 Paying wages . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 289
421 Contract not to stipulate mode of spending wages . . . . . . . . . . . . . . . . . . . . 290
422 Payment of unpaid wages etc. if employee's whereabouts unknown . . . . . 291
423 Recovery of wages etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 292
424 Enforcement of magistrate's order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 292
425 Recovery from employee of amounts overpaid . . . . . . . . . . . . . . . . . . . . . . . 293
426 Deduction in default of notice of termination . . . . . . . . . . . . . . . . . . . . . . . . 293
427 Minor may sue . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 294
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Division 4--Wages in rural and mining industries
428 Wages recoverable against mortgagee if mortgagor defaults . . . . . . . . . . . 294
429 Distress warrant levied on property of mortgagor or mortgagee . . . . . . . . . . 295
430 Application of ss 428 and 429 to mines . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 296
431 Priority in payment of wages earned in mine . . . . . . . . . . . . . . . . . . . . . . . . 297
Division 5--Occupational superannuation
432 Agreement about superannuation fund . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 298
433 Contributing occupational superannuation . . . . . . . . . . . . . . . . . . . . . . . . . . . 298
434 Power to order superannuation contribution to particular fund . . . . . . . . . . . 299
435 Magistrate's power for unpaid superannuation contribution . . . . . . . . . . . . . 300
CHAPTER 10--OFFENCES
436 Contempt of court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 301
437 Disobeying penalty orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 302
438 Improper conduct towards member of the commission, magistrate
or registrar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 302
439 Disturbances near tribunals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 303
440 Contempt by witness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 303
441 False or misleading statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 304
442 False, misleading or incomplete documents . . . . . . . . . . . . . . . . . . . . . . . . . 304
443 Obstructing officers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 305
444 Avoiding Act's obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 306
445 Non-payment of wages . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 306
446 Accepting reduced wages . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 307
447 Publishing statement about employment on reduced wages . . . . . . . . . . . . 307
448 Offence to offer or accept premiums . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 309
449 Contraventions of awards, certified agreements or permits . . . . . . . . . . . . . 309
450 Injunction restraining contraventions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 310
451 Persons considered parties to offences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 311
452 Executive officers must ensure corporation complies with ss 396,
433 and 445 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 311
453 Attempt to commit offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 312
CHAPTER 11--LEGAL PROCEEDINGS
454 General application of jurisdictional provisions . . . . . . . . . . . . . . . . . . . . . . 312
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455 Evidentiary provisions affecting proceeding under industrial Act . . . . . . . . 313
456 Confidential material tendered in evidence . . . . . . . . . . . . . . . . . . . . . . . . . 313
457 Evidentiary value at large of official records . . . . . . . . . . . . . . . . . . . . . . . . 315
458 Proof of certain facts by statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 316
459 Evidentiary value of certificate of trustee of superannuation fund . . . . . . . 316
460 Offence proceedings generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 317
461 Organisations may start proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 318
462 Recovering amounts from organisations . . . . . . . . . . . . . . . . . . . . . . . . . . . . 318
CHAPTER 12--EMPLOYEES IN EMPLOYMENT OF STATE
463 Application of Act to State . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 319
464 Conflict between industrial instruments etc. and statutory determination . 319
465 Protection of public property and officers . . . . . . . . . . . . . . . . . . . . . . . . . . . 320
466 Ambit of reference to State . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 320
467 Representation of public sector units . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 321
468 Industrial cause affecting diverse employees . . . . . . . . . . . . . . . . . . . . . . . . 321
CHAPTER 13--GENERAL
469 Employees working in and outside State . . . . . . . . . . . . . . . . . . . . . . . . . . . . 322
470 Student's work permit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 322
471 Aged or infirm persons permits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 323
472 Right of entry provisions void . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 324
473 Preference provisions void . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 324
474 Copy of award and certified agreement to be displayed . . . . . . . . . . . . . . . 324
475 Incorporation of amendments in reprint of award or certified agreement . . 325
476 Obsolete award or certified agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 325
477 Certificate of employment on termination . . . . . . . . . . . . . . . . . . . . . . . . . . . 325
478 False pretences relating to employment . . . . . . . . . . . . . . . . . . . . . . . . . . . . 325
479 Protection from liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 327
480 Payments to financially distressed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 327
481 Notices and applications to be written . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 328
482 Inaccurate descriptions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 328
483 Confidentiality of information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 328
484 Application of Act generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 329
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485 Regulation-making power . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 329
CHAPTER 14--INDUSTRIAL RELATIONS ADVISORY
COUNCIL
486 Establishment of council . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 330
487 Term of office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 331
488 Deputies of members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 331
489 Remuneration of appointed members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 331
490 Functions of council . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 331
491 Conduct of council meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 332
CHAPTER 15--SAVINGS, REPEALS AND OTHER
AMENDMENTS
492 Savings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 333
493 Regulation and rules to continue . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 334
494 Repeals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 334
495 Amended Acts--sch 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 335
CHAPTER 16--TRANSITIONALS
PART 1--LIMITED CONTINUATION OF CERTAIN
CONDITIONS
496 Preservation of certain general conditions in existing instruments . . . . . . . 335
PART 2--EXISTING AWARDS
497 Definitions for pt 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 335
498 Exercise of commission's powers under this part . . . . . . . . . . . . . . . . . . . . . 336
499 Amendment of awards during the interim period . . . . . . . . . . . . . . . . . . . . . 336
500 Parts of awards stop having effect at the end of the interim period . . . . . . 338
501 Amendment of awards after the end of the interim period . . . . . . . . . . . . . . 338
502 Matters to be dealt with by full bench . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 340
PART 3--EXISTING INDUSTRIAL AGREEMENTS
503 Existing industrial agreement continues . . . . . . . . . . . . . . . . . . . . . . . . . . . . 340
504 Industrial agreement displaced by QWA . . . . . . . . . . . . . . . . . . . . . . . . . . . . 341
PART 4--EXISTING CERTIFIED AGREEMENTS
505 New termination provisions for existing certified agreements . . . . . . . . . . . 341
506 EFAs that prevail over certified agreements . . . . . . . . . . . . . . . . . . . . . . . . . 342
507 Certified agreements that prevail over EFAs . . . . . . . . . . . . . . . . . . . . . . . . 342
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508 Section 55(4) awards and exceptional matters orders prevail over
pre and post commencement certified agreements . . . . . . . . . . . . . . . . . . . . 343
PART 5--EXISTING EFAS
509 Existing EFA continues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 343
510 EFA displaced by QWA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 343
511 EFA displaced by certain awards or orders . . . . . . . . . . . . . . . . . . . . . . . . . . 343
PART 6--UNFAIR DISMISSALS
512 Dismissals before commencement of this section . . . . . . . . . . . . . . . . . . . . 344
PART 7--REPRESENTATION RIGHTS OF EMPLOYEE
ORGANISATIONS
513 Applications under the repealed Act, s 45 . . . . . . . . . . . . . . . . . . . . . . . . . . . 344
PART 8--REFERENCES AND APPOINTMENTS
514 References to Industrial Relations Act 1990 . . . . . . . . . . . . . . . . . . . . . . . . . 344
515 Appointments continue . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 344
SCHEDULE 1 . . . . . . . . . . . . . . . . . . . . . . . . 345
INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND
CULTURAL RIGHTS
PART II
PART III
SCHEDULE 2 . . . . . . . . . . . . . . . . . . . . . . . . 355
FAMILY RESPONSIBILITIES CONVENTION
SCHEDULE 3 . . . . . . . . . . . . . . . . . . . . . . . . 364
TERMINATION OF EMPLOYMENT CONVENTION
PART I--METHODS OF IMPLEMENTATION, SCOPE AND
DEFINITIONS
PART II--STANDARDS OF GENERAL APPLICATION
Division A--Justification for termination
Division B--Procedure prior to or at the time of termination
Division C--Procedure of appeal against termination
Division D--Period of notice
Division E--Severance allowance and other income protection
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PART III--SUPPLEMENTARY PROVISIONS CONCERNING
TERMINATIONS OF EMPLOYMENT FOR ECONOMIC,
TECHNOLOGICAL, STRUCTURAL OR SIMILAR REASONS
Division A--Consultation of workers' representatives
Division B--Notification to the competent authority
PART IV--FINAL PROVISIONS
SCHEDULE 4 . . . . . . . . . . . . . . . . . . . . . . . . 377
AMENDED ACTS
ACTS INTERPRETATION ACT 1954 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 377
ANZAC DAY ACT 1995 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 377
PUBLIC SERVICE ACT 1996 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 377
TRADING (ALLOWABLE HOURS) ACT 1990 . . . . . . . . . . . . . . . . . . . . . 378
VOCATIONAL EDUCATION, TRAINING AND EMPLOYMENT
ACT 1991 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 379
WORKPLACE HEALTH AND SAFETY ACT 1995 . . . . . . . . . . . . . . . . . . 386
SCHEDULE 5 . . . . . . . . . . . . . . . . . . . . . . . . 388
DICTIONARY
1996
A BILL
FOR
An Act to provide for workplace relations in Queensland, and for
other purposes
s1 26 s3
Workplace Relations
The Parliament of Queensland enacts-- 1
CHAPTER 1--PRELIMINARY 2
title 3
Short
1. This Act may be cited as the Workplace Relations Act 1996. 4
5
Commencement
2.(1) This Act commences on a day to be fixed by proclamation. 6
(2) However, the amendment of the Anzac Day Act 1995 is taken to have 7
commenced on 3 March 1995. 8
object of this Act 9
Principal
3. The principal object of this Act is to provide a framework for 10
cooperative workplace relations that supports economic prosperity and 11
welfare by-- 12
(a) encouraging, through higher productivity and a flexible and fair 13
labour market, the pursuit of high employment, improved living 14
standards, low inflation, and national and international 15
competitiveness; and 16
(b) ensuring the primary responsibility for determining matters 17
affecting the relationship between employers and employees rests 18
with the employer and employees at the workplace or enterprise 19
level; and 20
(c) enabling employers and employees to choose the most 21
appropriate form of agreement for their particular circumstances, 22
whether or not that form is provided for by this Act; and 23
(d) providing the means-- 24
(i) for wages and employment conditions to be determined as 25
far as possible by the agreement of employers and 26
s3 27 s3
Workplace Relations
employees at the workplace or enterprise level; and 1
(ii) to ensure the maintenance of an effective safety net of fair 2
and enforceable minimum wages and employment 3
conditions; and 4
(e) providing for rights and responsibilities for employers and 5
employees, and their organisations, that-- 6
(i) supports fair and effective agreement-making; and 7
(ii) ensures they abide by awards and agreements applying to 8
them; and 9
(f) enabling the commission-- 10
(i) to establish an award safety net based on simplified awards 11
to increase flexibility at the workplace or enterprise level; and 12
(ii) to assist in the making of collective and individual 13
agreements that are relevant to the needs of individual 14
workplaces and enterprises; and 15
(iii) to prevent and settle industrial disputes as far as possible by 16
conciliation and, if appropriate and within specified limits, by 17
arbitration; and 18
(g) helping employees balance their work and family responsibilities 19
effectively through the development of mutually beneficial work 20
practices with employers; and 21
(h) respecting and valuing the diversity of the work force by helping 22
to prevent and eliminate discrimination; and 23
(i) assisting in giving effect to Australia's international obligations in 24
relation to labour standards. 25
s4 28 s7
Workplace Relations
dictionary 1
Definitions--the
4. The dictionary in schedule 5 defines particular words used in this Act.1 2
to making false or misleading statements 3
References
5. A reference to a person making a statement knowing that it is false or 4
misleading in a material particular includes a reference to the person making 5
the statement being reckless about whether the statement is false or 6
misleading in a material particular. 7
to engaging in conduct 8
References
6. A reference to engaging in conduct includes a reference to being, 9
directly or indirectly, a party to or concerned in the conduct. 10
is an employee 11
Who
7.(1) An "employee" is a person employed in a calling on wages or 12
piecework rates. 13
(2) The following persons are also employees-- 14
(a) a person whose usual occupation is that of an employee in a 15
calling; 16
(b) a person employed in a calling, even though-- 17
(i) the person is working under a contract for labour only, or 18
substantially for labour only; or 19
(ii) the person is a lessee of tools or other implements of 20
production, or of a vehicle used to deliver goods; or 21
1 In some Acts, definitions are contained in a dictionary that appears as the last
schedule and forms part of the Act--Acts Interpretation Act 1954, section 14(4).
Words defined elsewhere in the Act are generally signposted by entries in the
dictionary. However, if a section has a definition applying only to the section, or
a part of the section, it is generally not signposted by an entry in the dictionary
and is generally set out in the last subsection of the section.
Signpost definitions in the dictionary alert the reader to the terms defined in the
Act and tell the reader where the definitions can be found.
s8 29 s8
Workplace Relations
(iii) the person owns, wholly or partly, a vehicle used to transport 1
goods or passengers; 2
if that is the only reason for holding the person not to be an 3
employee; 4
(c) each person, being 1 of 4 or more persons who are, or claim to 5
be, partners working in association in a calling or business; 6
(d) for a proceeding for payment or recovery of amounts--a former 7
employee; 8
(e) an apprentice or trainee. 9
(3) A person who is undertaking an industry placement within the 10
meaning of the Vocational Education and Training (Industry Placement) 11
Act 1992 is not an employee. 12
is an employer 13
Who
8.(1) An "employer" is-- 14
(a) a person employing, or who usually employs, 1 or more 15
employees, for the person or someone else; or 16
(b) for employees employed in a department of government--the 17
chief executive of that department. 18
(2) The following persons are also employers-- 19
(a) a person carrying on a calling in which employees are usually 20
employed, even though for the time being employees are not 21
employed in it; 22
(b) a person who is managing director, manager, secretary or 23
member of the managing body (however called) of a corporation, 24
partnership, firm or association of persons; 25
(c) if 4 or more persons are, or claim to be, partners working in 26
association in a calling or business--the partnership firm 27
constituted, or claimed to be constituted, by the persons; 28
(d) for a proceeding for payment or recovery of amounts--a former 29
employer. 30
s9 30 s9
Workplace Relations
is an industrial matter 1
What
9.(1) An "industrial matter" is a matter that affects or relates to-- 2
(a) work done or to be done; or 3
(b) the privileges, rights or functions of-- 4
(i) employers or employees; or 5
(ii) persons who have been, or propose to be, or who may 6
become, employers or employees; or 7
(c) a matter (whether or not an industrial matter as defined in this 8
section) that the court or commission considers has been, is, or 9
may be a cause or contributory cause of an industrial action or 10
industrial dispute. 11
(2) However, a matter is not an industrial matter if it is the subject of a 12
proceeding for an indictable offence. 13
(3) Without limiting subsection (1) or affecting subsection (2), a matter is 14
an industrial matter if it relates to-- 15
(a) wages, allowances or remuneration of persons employed, or to be 16
employed, during ordinary hours, on overtime, on special work 17
or on public holidays; or 18
(b) whether piecework will be allowed; or 19
(c) whether employees are to be given particular leave on full pay; or 20
(d) whether and on what conditions employees may board and lodge 21
with their employers; or 22
(e) whether monetary allowances will be paid by employers to 23
employees for standing back or waiting time caused-- 24
(i) by the conditions of the employer's calling; or 25
(ii) by the intermittency of industrial operations; or 26
(iii) otherwise; or 27
(f) the length of notice to be given by an employer or employee to the 28
other before terminating employment, and wages to be paid or 29
deducted instead of notice; or 30
(g) occupational superannuation; or 31
s9 31 s9
Workplace Relations
(h) the hours of work, the time to be worked to entitle employees to a 1
particular wage, allowance, remuneration or price, or what time 2
will be taken to be overtime; or 3
(i) claims to restrict work before or after particular hours; or 4
(j) the age, qualification or status of employees, or the mode and 5
conditions of employment or non-employment, including 6
whether a person should be disqualified for employment; or 7
(k) claims to have protective clothing or appliances, hot or cold water, 8
or sanitary or bathing accommodation provided for the use of 9
employees; or 10
(l) fixing standards of normal temperatures or atmospheric purity in 11
workplaces, above or below ground; or 12
(m) providing for shorter hours, higher wages, or other conditions for 13
persons employed under abnormal conditions or in abnormal 14
workplaces, and determining what are abnormal conditions or 15
workplaces; or 16
(n) employment of young employees or of a person or class of 17
person, or the disqualification of a person for employment 18
because of age or impairment; or 19
(o) the number or proportion of aged, impaired or infirm persons or 20
other employees that may be employed by an employer, or the 21
lowest prices or rates payable to them; or 22
(p) a claim to dismiss or to refuse to employ a particular person or 23
class of person, or whether a particular person or class of person, 24
ought to be continued or reinstated in the employment of a 25
particular employer, considering the public interest, despite 26
common law rights of employers or employees; or 27
(q) the right to dismiss, or to refuse to employ or reinstate a particular 28
person, or class of person, in a particular calling; or 29
(r) custom or usage about employment conditions, either generally or 30
in a particular calling or locality; or 31
(s) the interpretation or enforcement of an industrial instrument or a 32
permit, unless this Act otherwise prescribes; or 33
(t) the subject matter of an industrial dispute, and a matter that has 34
s 10 32 s 10
Workplace Relations
caused or, the court or commission considers is likely to cause, 1
disagreement or friction between employers and employees; or 2
(u) what is fair and just (considering the interests of the persons 3
immediately concerned and the community) according to the 4
standard of the average good employer and the average competent 5
and honest employee in all matters relating to the relations of 6
employers and employees, whether or not the relationship of 7
employer and employee exists or existed-- 8
(i) at or before the making of a relevant application to the court 9
or commission; or 10
(ii) at the making or enforcement of a decision of the court or 11
commission; or 12
(v) the regulation of relations between employer and employee, or 13
between employees, and to that end the imposition of conditions 14
on-- 15
(i) the conduct of a calling; and 16
(ii) the provision of benefits to persons engaged in a calling; or 17
(w) a demarcation dispute. 18
CHAPTER 2--AGREEMENTS 19
ART 1--CERTIFIED AGREEMENTS 20
P
Division 1--Preliminary 21
of pt 1 22
Object
10. The object of this part is to facilitate the making, certifying by the 23
commission, and operation, of certain agreements (particularly at the level 24
of a single business or part of a single business). 25
s 11 33 s 12
Workplace Relations
functions 1
Commission's
11.(1) The commission must, as far as practicable, perform its functions 2
under this part in a way that furthers the objects of this Act and, in 3
particular, the object of this part. 4
(2) Section 335(4) 2 does not apply to the performance of the 5
commission's functions under this part. 6
business and employers taken to be 1 employer 7
Single
12.(1) In this part, a "single business" is-- 8
(a) a business, project or undertaking that is carried on by an 9
employer; or 10
(b) the activities carried on by-- 11
(i) the State; or 12
(ii) an entity established for a public purpose under a law of the 13
State or Commonwealth; or 14
(iii) another entity in which the State has a controlling interest. 15
(2) In this part-- 16
(a) if 2 or more employers carry on a business, project or 17
undertaking as a joint venture or common enterprise, the 18
employers are taken to be 1 employer; and 19
(b) if 2 or more corporations that are related to each other for the 20
purposes of the Corporations Law each carry on a single 21
business-- 22
(i) the corporations may be treated as 1 employer; and 23
(ii) the single businesses may be treated as 1 single business. 24
(3) In this part, a part of a single business includes, for example-- 25
(a) a geographically distinct part of the single business; and 26
2 Section 335 (Basis of procedures and decisions of the commission and
magistrates)
s 13 34 s 13
Workplace Relations
(b) a distinct operational or organisational unit within the single 1
business. 2
operation of part 3
Additional
13.(1) In addition to its operation apart from this section to a single 4
business, or part of a single business, of an employer, this part applies, 5
subject to this section, in the same way to any of the following, or any 6
combination of the following-- 7
(a) 1 or more single businesses carried on by 1 or more employers; 8
(b) 1 or more parts of single businesses carried on by 1 or more 9
employers. 10
(2) If an application for certification of an agreement by the commission 11
can only be made under this part because of subsection (1), the agreement is 12
a "multiple-business agreement". 13
(3) Only a full bench may certify a multiple-business agreement under 14
division 3. 15
(4) A full bench, under division 3, must not certify a multiple-business 16
agreement unless satisfied it is in the public interest to certify the agreement, 17
having regard to-- 18
(a) whether the matters dealt with by the agreement could be more 19
appropriately dealt with by an agreement, other than a 20
multiple-business agreement, under this part; and 21
(b) any other matter that the full bench considers relevant. 22
(5) Despite section 30,3 a multiple-business agreement has no effect as 23
far as it is inconsistent with another agreement certified under division 34 24
that is not a multiple-business agreement. 25
3 Section 30 (Effect of a certified agreement in relation to awards and other
agreements)
4 Division 3 (Certifying agreements)
s 14 35 s 15
Workplace Relations
(6) Division 7 (other than sections 59 and 60)5 does not apply to a 1
proposed multiple-business agreement. 2
expiry date 3
Nominal
14. In this part, the "nominal expiry date" of a certified agreement is the 4
date specified in the agreement as its nominal expiry date, or that date as 5
extended or further extended under section 33.6 6
majority 7
Valid
15. For this part, a valid majority of the persons employed at a particular 8
time whose employment is or will be subject to an agreement-- 9
(a) make or genuinely make the agreement; or 10
(b) approve or genuinely approve-- 11
(i) the agreement; or 12
(ii) the extension of the nominal expiry date of the agreement; or 13
(iii) the amendment or termination of the agreement; 14
if-- 15
(c) the employer gives all of the persons employed a reasonable 16
opportunity to decide whether they want to make the agreement, 17
or give the approval; and 18
(d) either-- 19
(i) if the decision is made by a vote--a majority of the persons 20
who cast a valid vote; or 21
(ii) otherwise--a majority of the persons; 22
decide, or genuinely decide, that they want to make the agreement, 23
or give the approval. 24
5 Division 7 (Negotiations for certified agreements etc.), sections 59 (Conciliation
for agreements) and 60 (Employers not to discriminate between unionist and
non-unionist)
6 Section 33 (Extending the nominal expiry date)
s 16 36 s 19
Workplace Relations
day 1
Working
16. In this part, a "working day", for a single business or a part of a 2
single business, is a day on which employees normally perform work in the 3
business or part. 4
2--Making agreements 5
Division
this division covers 6
What
17. This division sets out requirements that must be satisfied for 7
applications to be made to the commission to certify certain agreements 8
between employers and-- 9
(a) employee organisations; or 10
(b) employees. 11
of agreement 12
Nature
18.(1) For an application to be made to the commission under this 13
division, there must be a written agreement about matters pertaining to the 14
relationship between-- 15
(a) an employer; and 16
(b) all persons-- 17
(i) who, while the agreement operates, are employed in a single 18
business, or a part of a single business, of the employer; and 19
(ii) whose employment is subject to the agreement. 20
(2) The agreement must be made in accordance with section 19, 20 21
or 22.7 22
with employee organisations 23
Agreement
19.(1) The employer may make the agreement with 1 or more employee 24
organisations if, when the agreement is made, each organisation-- 25
7 Section 20 (Agreement with employees) or 22 (Greenfields agreement)
s 20 37 s 20
Workplace Relations
(a) has at least 1 member employed in the single business, or a part 1
of a single business, whose employment will be subject to the 2
agreement; and 3
(b) is entitled to represent the industrial interests of the member in 4
relation to work that will be subject to the agreement. 5
(2) The agreement must be approved by a valid majority of the persons 6
employed at the time whose employment will be subject to the agreement. 7
(3) The employer must take reasonable steps to ensure-- 8
(a) at least 14 days before approval is given, all the persons either 9
have, or have ready access to, the proposed written agreement; 10
and 11
(b) before approval is given, the terms of the agreement are explained 12
to all the persons. 13
(4) An agreement must not be made under this section if it may be made 14
under section 22.8 15
with employees 16
Agreement
20.(1) The employer may make the agreement with a valid majority of 17
the relevant employees employed when the agreement is made. 18
(2) The employer must take reasonable steps to ensure every relevant 19
employee has at least 14 days' notice of intention to make the agreement. 20
(3) The agreement must not be made before the 14 days have passed. 21
(4) At or before the time when the notice is given, the employer must 22
take reasonable steps to ensure every relevant employee either has, or has 23
ready access to, the proposed written agreement. 24
(5) The notice must also state that if-- 25
(a) a relevant employee is a member of an employee organisation; 26
and 27
(b) the organisation is entitled to represent the employee's industrial 28
interests in relation to work that will be subject to the agreement; 29
8 Section 22 (Greenfields agreement)
s 21 38 s 21
Workplace Relations
the employee may ask the organisation to represent the employee in meeting 1
and conferring with the employer about the agreement. 2
(6) If an organisation is asked to represent a relevant employee, the 3
employer must give the organisation a reasonable opportunity to meet and 4
confer with the employer about the agreement before it is made. 5
(7) The requirement in subsection (6) stops applying to the employer if 6
after the request is made-- 7
(a) the relevant employee withdraws the request; or 8
(b) the conditions in subsection (5)(a) and (b) cease to be met. 9
(8) Before the agreement is made, the employer must take reasonable 10
steps to ensure the terms of the agreement are explained to all the relevant 11
employees employed at the time. 12
(9) If a proposed agreement is amended for any reason after the notice is 13
given, the steps in subsections (2), (3), (4), (6) and (8) must again be taken 14
in relation to the proposed agreement as amended. 15
(10) However, subsection (9) does not apply if the proposed agreement 16
is to be amended only-- 17
(a) for a formal or clerical reason; or 18
(b) in another way that does not adversely affect a relevant 19
employee's interests. 20
(11) In this section-- 21
"relevant employee" means an employee whose employment will be 22
subject to the agreement. 23
as to requested representation 24
Certificate
21.(1) If the registrar is satisfied-- 25
(a) for an application by an employee organisation--an employee has 26
made a request under section 20(5) for the organisation to 27
represent the employee in meeting and conferring with an 28
employer about a proposed agreement; or 29
(b) for an application by an employer--after making a request under 30
section 20(5), the requirement in section 20(6) for the employer to 31
s 22 39 s 23
Workplace Relations
give a reasonable opportunity to the organisation to meet and 1
confer about the proposed agreement, has, because of 2
section 20(7), ceased to apply to the employer; 3
the registrar may issue a certificate to that effect. 4
(2) The certificate-- 5
(a) must not identify any of the employees concerned; but 6
(b) must identify the organisation, the employer and the proposed 7
agreement. 8
(3) The certificate is, for all purposes of this Act, evidence that-- 9
(a) an employee made the request; or 10
(b) the requirement ceased to apply. 11
agreement 12
Greenfields
22.(1) This section applies if-- 13
(a) the single business is a new business that the employer proposes 14
to establish, or is establishing, when the agreement is to be made; 15
and 16
(b) the agreement is to be made before the employment of any of the 17
persons-- 18
(i) who will be necessary for the normal operation of the 19
business, or a part of a single business; and 20
(ii) whose employment will be subject to the agreement. 21
(2) The employer may make the agreement with 1 or more employee 22
organisations meeting the requirements of subsection (3). 23
(3) When the agreement is made, each organisation must be entitled to 24
represent the industrial interests of 1 or more of the persons, whose 25
employment is likely to be subject to the agreement, in relation to work that 26
will be subject to the agreement. 27
for applying for certification 28
Time
23. An application for the commission to certify the agreement must be 29
s 24 40 s 25
Workplace Relations
made within 21 days after-- 1
(a) for an agreement made under section 199--the day on which the 2
agreement is approved; or 3
(b) for an agreement made under section 2010 or 22--the day on 4
which the agreement is made. 5
3--Certifying agreements 6
Division
employee organisations not to be heard 7
Certain
24. In an application for certification of an agreement, the commission-- 8
(a) must, on application, give leave to hear from an employee 9
organisation that was requested to represent a person under 10
section 2011 in relation to the agreement, if-- 11
(i) the request has not been withdrawn; or 12
(ii) the conditions in section 20(5)(a) and (b) continue to be met; 13
and 14
(b) except as mentioned in paragraph (a), must not hear from an 15
employee organisation, other than an organisation proposed to be 16
bound by the agreement. 17
an agreement 18
Certifying
25.(1) If an application is made to the commission to certify an 19
agreement, the commission must certify the agreement if, and must not 20
certify the agreement unless, satisfied the requirements of this section are 21
met. 22
(2) The agreement must pass the no-disadvantage test. 23
(3) If-- 24
9 Section 19 (Agreement with employee organisations)
10 Section 20 (Agreement with employees)
11 Section 20 (Agreement with employees)
s 25 41 s 25
Workplace Relations
(a) the only reason why the commission must not certify an 1
agreement is that the agreement does not pass the no-disadvantage 2
test; and 3
(b) the commission is satisfied that certifying the agreement is not 4
contrary to the public interest; 5
the agreement is taken to pass the no-disadvantage test. 6
7
Example of subsection (3)(b)--
8
The making of the agreement is part of a reasonable strategy to deal with a
9
short-term crisis in, and to assist in the revival of, the single business or part.
(4) A valid majority of the relevant employees employed at the time must 10
have-- 11
(a) for an agreement made under section 1912--genuinely approved 12
the agreement; or 13
(b) for an agreement made under section 20 13--genuinely made the 14
agreement. 15
(5) The explanation of the terms of the agreement to persons mentioned 16
in section 19(3)(b) or 20(8) must have been done in a way that was 17
appropriate, having regard to the persons' particular circumstances and 18
needs. 19
20
Examples of persons with particular circumstances and needs--
21
1. Women
22
2. Persons from a non-English-speaking background
23
3. Young persons
(6) The agreement must include procedures for preventing and settling 24
disputes, about matters arising under the agreement, between-- 25
(a) the employer; and 26
(b) the relevant employees. 27
(7) If the agreement was made under section 20, the employer must not 28
have coerced, or attempted to coerce, an employee-- 29
12 Section 19 (Agreement with employee organisations)
13 Section 20 (Agreement with employees)
s 26 42 s 26
Workplace Relations
(a) not to make a request mentioned in section 20(5); or 1
(b) to withdraw the request. 2
(8) The agreement must specify a date, not more than 3 years after the 3
date on which the agreement will come into operation, as the nominal expiry 4
date of the agreement. 5
(9) The agreement must also contain, or be accompanied by, the 6
information prescribed under a regulation. 7
(10) In this section-- 8
"relevant employee" means an employee whose employment will be 9
subject to the agreement. 10
commission to refuse to certify an agreement 11
When
26.(1) The commission must refuse to certify an agreement if it 12
considers that a provision of the agreement is inconsistent with-- 13
(a) a provision of chapter 4, parts 1 and 2 and chapter 5;14 or 14
(b) an order by the commission under the provisions; or 15
(c) an injunction granted by the commission under the provisions; or 16
(d) the Industrial Organisations Act 1996, part 14.15 17
(2) The commission must refuse to certify an agreement if satisfied-- 18
(a) the employer has, in connection with negotiating the agreement, 19
contravened-- 20
(i) section 60; or 21
(ii) the Industrial Organisations Act 1996, part 14; or 22
(b) the employer has caused an entity to engage, in connection with 23
negotiations for an agreement, in conduct that, had the employer 24
engaged in the conduct, would be a contravention by the employer 25
of-- 26
14 Chapter 4, parts 1 (Minimum wages) and 2 (Equal remuneration for work of
equal value)
Chapter 5 (Dismissals)
15 Industrial Organisations Act 1996, part 14 (Freedom of association)
s 26 43 s 26
Workplace Relations
(i) section 60;16 or 1
(ii) the Industrial Organisations Act 1996, part 14; or 2
(c) an entity has, for the employer-- 3
(i) engaged in conduct mentioned in paragraph (b); or 4
(ii) caused another entity to engage in the conduct. 5
(3) Subsection (2) does not apply if the commission is satisfied the 6
contravention or conduct, and its effects, have been fully remedied. 7
(4) The commission must refuse to certify an agreement if it considers a 8
provision of the agreement is a discriminatory provision. 9
(5) The commission must refuse to certify an agreement if-- 10
(a) the agreement applies only to a part of a single business that is 11
neither of the following-- 12
(i) a geographically distinct part of the single business; 13
(ii) a distinct operational or organisational unit within the single 14
business; and 15
(b) the commission considers the agreement defines the part in a way 16
that results in the employment of employees not being subject to 17
the agreement if it would be reasonable for the employment to be, 18
having regard to-- 19
(i) the nature of the work performed by the employees whose 20
employment is not subject to the agreement; and 21
(ii) the organisational and operational relationships between the 22
part and the rest of the single business; and 23
(c) the commission considers it unfair that the employment of those 24
employees is not subject to the agreement. 25
(6) This section applies despite section 25. 26
16 Section 60 (Employers not to discriminate between unionist and non-unionist)
s 27 44 s 28
Workplace Relations
options open to commission instead of refusing to certify an 1
Other
agreement 2
27.(1) If, under section 2517 or 26, the commission has grounds to refuse 3
to certify an agreement-- 4
(a) the commission may accept an undertaking from 1 or more of the 5
persons who made the agreement in relation to the operation of 6
the agreement and, if satisfied the undertaking meets the 7
commission's concerns, certify the agreement; and 8
(b) before refusing to certify the agreement, the commission must 9
give the persons who made the agreement an opportunity to take 10
action that may be necessary to make the agreement certifiable. 11
(2) If an undertaking is not complied with, the commission, after giving 12
the persons who made the agreement an opportunity to be heard, may-- 13
(a) order the 1 or more persons who gave the undertaking to comply 14
with it; or 15
(b) terminate the agreement. 16
(3) If-- 17
(a) after doing the things required or allowed by subsection (1), the 18
commission is still required to refuse to certify the agreement; and 19
(b) it is so required only because it is not satisfied as mentioned in 20
section 26(1); 21
the commission may conciliate the industrial matter concerned with a view 22
to assisting the persons concerned to make the agreement certifiable. 23
for preventing and settling disputes 24
Procedures
28. Procedures in a certified agreement for preventing and settling 25
disputes between the employer and employees whose employment will be 26
subject to the agreement may, if the commission approves, authorise the 27
commission to settle disputes over the application of the agreement. 28
17 Section 25 (Certifying an agreement)
s 29 45 s 30
Workplace Relations
Division 4--Effect of certified agreements 1
a certified agreement is in operation 2
When
29.(1) A certified agreement starts operating when it is certified. 3
(2) The agreement stops operating if-- 4
(a) its nominal expiry date has passed; and 5
(b) it is replaced by another certified agreement. 6
(3) The agreement stops operating if it is terminated under section 27, 36, 7
37, 38 or 39.18 8
of a certified agreement in relation to awards and other 9
Effect
agreements 10
30.(1) While a certified agreement operates-- 11
(a) it prevails over an award or industrial agreement, to the extent of 12
any inconsistency with the award or agreement; and 13
(b) it has no effect to the extent of any inconsistency with another 14
agreement certified before it, whose nominal expiry date has not 15
passed. 16
(2) An exceptional matters order prevails, to the extent of any 17
inconsistency, over a certified agreement that was certified before the order 18
was made. 19
18 Section 27 (Other options open to commission instead of refusing to certify an
agreement), 36 (Other options open to commission instead of refusing to approve
amendment of an agreement), 37 (Terminating a certified agreement on or
before its nominal expiry date), 38 (Terminating a certified agreement after its
nominal expiry date) or 39 (Terminating an agreement in a way provided under
agreement after nominal expiry date)
s 31 46 s 32
Workplace Relations
Division 5--Persons bound by certified agreements 1
ersons bound 2
P
31.(1) A certified agreement binds-- 3
(a) the employer; and 4
(b) all persons whose employment is, while the agreement operates, 5
subject to the agreement; and 6
(c) if the agreement is made with 1 or more employee organisations 7
under section 19 or 2219--the 1 or more organisations. 8
(2) The commission must determine that a certified agreement binds an 9
employee organisation if-- 10
(a) a valid majority of employees made the agreement with the 11
employer under section 20;20 and 12
(b) before the agreement is certified, the organisation gives the 13
commission and employer notice that it wants to be bound by the 14
agreement; and 15
(c) the organisation satisfies the commission that it has at least 16
1 member-- 17
(i) whose employment will be subject to the agreement; and 18
(ii) whose industrial interests the organisation is entitled to 19
represent for work that will be subject to the agreement; and 20
(iii) who asked the organisation to give the notice. 21
employers bound 22
Successor
32.(1) This section applies if-- 23
(a) an employer is bound by a certified agreement; and 24
(b) at a later time a new employer becomes the successor (whether or 25
19 Section 19 (Agreement with employee organisations) or 22 (Greenfields
agreement)
20 Section 20 (Agreement with employees)
s 33 47 s 33
Workplace Relations
not immediate) of the whole or a part of the business concerned. 1
(2) From the later time-- 2
(a) the new employer is bound by the certified agreement, to the 3
extent it relates to the whole or part of the business; and 4
(b) the previous employer stops being bound by the certified 5
agreement, to the extent it relates to the whole or part of the 6
business; and 7
(c) a reference in this part to the employer includes a reference to the 8
new employer, and ceases to refer to the previous employer, to 9
the extent the context relates to the whole or part of the business. 10
(3) In this section-- 11
"successor" includes assignee and transmittee. 12
Division 6--Extending, amending or terminating certified agreements 13
the nominal expiry date 14
Extending
33.(1) On or before the nominal expiry date of a certified agreement, the 15
following persons may extend the nominal expiry date by application to the 16
commission-- 17
(a) if 1 or more organisations are bound by the agreement--the 18
employer and the 1 or more organisations; 19
(b) otherwise--the employer. 20
(2) The extended date can not be more than 3 years after the date on 21
which the agreement came into operation. 22
(3) The extension has no effect unless the commission approves it. 23
(4) The commission must approve the extension if, and must not 24
approve the extension unless, satisfied a valid majority of the employees 25
whose employment is subject to the agreement at the time genuinely 26
approve the extension. 27
(5) The extension takes effect when the commission's approval takes 28
effect. 29
s 34 48 s 34
Workplace Relations
(6) This section does not apply to an agreement-- 1
(a) to which section 2221 applied; or 2
(b) to which section 25(3)22 applied, in circumstances covered by the 3
example to that subsection. 4
a certified agreement 5
Amending
34.(1) The following persons may amend the agreement by application to 6
the commission-- 7
(a) if 1 or more organisations are bound by the agreement--the 8
employer and the 1 or more organisations; 9
(b) otherwise--the employer. 10
(2) The amendment has no effect unless the commission approves it. 11
(3) The commission must approve the amendment if, and must not 12
approve the amendment unless, satisfied-- 13
(a) a valid majority of the employees whose employment is subject 14
to the agreement at the time genuinely approve the amendment; 15
and 16
(b) the commission would be required to certify the agreement as 17
amended if it were a new agreement whose certification was 18
applied for under this part. 19
(4) In applying subsection (3)(b)-- 20
(a) a requirement about a majority of persons making or approving 21
the agreement is taken to be satisfied; and 22
(b) section 2723 is to be disregarded. 23
(5) The amendment takes effect when the commission's approval takes 24
effect. 25
(6) The commission may, on application by a person bound by a certified 26
21 Section 22 (Greenfields agreement)
22 Section 25 (Certifying an agreement)
23 Section 27 (Other options open to commission instead of refusing to certify an
agreement)
s 35 49 s 35
Workplace Relations
agreement, amend a certified agreement-- 1
(a) to remove ambiguity or uncertainty; or 2
(b) to include, omit or amend a term (however specified) that allows 3
an employer to stand-down an employee. 4
(7) A certified agreement can not be amended except under-- 5
(a) this section (including as it applies under section 35); or 6
(b) section 33; or 7
(c) section 36.24 8
if discrimination between unionists and non-unionists 9
Amendment
35.(1) If-- 10
(a) 1 or more employees whose employment is not subject to the 11
agreement ask the employer to-- 12
(i) amend the agreement so that their employment is subject to 13
the agreement; and 14
(ii) seek the approval of the commission for the amendment 15
under section 34; and 16
(b) their employment would be subject to the agreement if-- 17
(i) they were members of an employee organisation or of a 18
particular employee organisation; or 19
(ii) they were not members of an employee organisation or of a 20
particular employee organisation; and 21
(c) the amendment would not cause the agreement to become a 22
multiple-business agreement; 23
the employer must comply with the request. 24
(2) If, in accordance with the request, the employer seeks the 25
commission's approval to the amendment under section 34(3), the 26
24 Section 36 (Other options open to commission instead of refusing to approve
amendment of an agreement)
s 36 50 s 37
Workplace Relations
commission must disregard section 34(3)(a) in deciding whether to approve 1
the amendment. 2
options open to commission instead of refusing to approve 3
Other
amendment of an agreement 4
36.(1) If the commission has grounds to refuse to approve an 5
amendment of an agreement under section 34,25 it-- 6
(a) may accept an undertaking from 1 or more of the persons who 7
amended the agreement in relation to the operation of the 8
agreement as amended and, if satisfied the undertaking meets the 9
commission's concerns, approve the amendment; and 10
(b) before refusing to approve the amendment, must give the persons 11
who amended the agreement an opportunity to take any action that 12
may be necessary to allow the amendment to be approved. 13
(2) If an undertaking is not complied with, the commission, after giving 14
the persons who amended the agreement an opportunity to be heard, may-- 15
(a) order the 1 or more persons who gave the undertaking to comply 16
with it; or 17
(b) amend the agreement to undo the effect of the approved 18
amendment; or 19
(c) terminate the agreement. 20
a certified agreement on or before its nominal expiry date 21
Terminating
37.(1) On or before the nominal expiry date of a certified agreement the 22
following persons may terminate the agreement by notice-- 23
(a) if 1 or more organisations are bound by the agreement--the 24
employer and the 1 or more organisations; 25
(b) otherwise--the employer. 26
(2) The termination has no effect unless the commission approves it. 27
(3) The commission must approve the termination if, and must not 28
25 Section 34 (Amending a certified agreement)
s 38 51 s 39
Workplace Relations
approve the termination unless, satisfied a valid majority of the employees 1
whose employment is subject to the agreement at the time genuinely 2
approve its termination. 3
(4) The termination takes effect when the commission's approval takes 4
effect. 5
a certified agreement after its nominal expiry date 6
Terminating
38.(1) After the nominal expiry date of a certified agreement-- 7
(a) the employer; or 8
(b) a majority of the employees whose employment is subject to the 9
agreement; or 10
(c) an employee organisation that-- 11
(i) is bound by the agreement; and 12
(ii) has at least 1 member whose employment is subject to the 13
agreement; 14
may give notice to all of the employees, or other employees, whose 15
employment is subject to the agreement and persons, or other persons, who 16
are bound by the agreement, and to the commission, stating that the 17
agreement terminates with effect from a specified day. 18
(2) The specified day must be at least 28 days after-- 19
(a) the day on which the notice is given; or 20
(b) if it is given to different persons on different days--the day on 21
which it is last given. 22
(3) The agreement terminates on the specified day. 23
an agreement in a way provided under agreement after 24
Terminating
nominal expiry date 25
39.(1) If-- 26
(a) a certified agreement provides for it to be terminated if certain 27
conditions are met; and 28
(b) those conditions are met after the agreement's nominal expiry 29
s 40 52 s 40
Workplace Relations
date has passed; 1
any of the persons mentioned in subsection (2) may apply to the 2
commission to have the termination approved. 3
(2) The persons are-- 4
(a) the employer; or 5
(b) an employee whose employment is subject to the agreement; or 6
(c) an employee organisation that is bound by the agreement and that 7
has at least 1 member whose employment is subject to the 8
agreement. 9
(3) If the commission is satisfied that subsection (1)(a) and (b) has been 10
complied with, it must approve the termination. 11
(4) If the commission does so, the agreement terminates when the 12
commission's approval takes effect. 13
7--Negotiations for certified agreements etc. 14
Division
of bargaining period 15
Initiation
40.(1) If-- 16
(a) an employer; or 17
(b) an employee organisation; or 18
(c) an employee acting on his or her own behalf and for other 19
employees; 20
wants to negotiate a certified agreement in relation to employees who are 21
employed in a single business or a part of a single business, the employer, 22
organisation or employee (the "initiating party") may initiate a period (the 23
"bargaining period") for negotiating the proposed agreement. 24
(2) The bargaining period is initiated by the initiating party giving notice 25
to each other negotiating party and to the commission stating that the 26
initiating party intends to try-- 27
(a) to make an agreement with the other negotiating parties; and 28
(b) to have the agreement certified. 29
s 41 53 s 41
Workplace Relations
(3) In this division, a "negotiating party" to a proposed agreement 1
means-- 2
(a) the initiating party; or 3
(b) if the initiating party is an employer who intends to try to make an 4
agreement under section 19 or 2226--the organisation or 5
organisations who are proposed to be bound by the agreement; or 6
(c) if the initiating party is an employer who intends to try to make an 7
agreement under section 20 27--the employees at the time whose 8
employment will be subject to the agreement; or 9
(d) if the initiating party is an employee organisation--the employer 10
who is proposed to be bound by the agreement; or 11
(e) if the initiating party is an employee acting on his or her own 12
behalf and for other employees--the employer who is proposed 13
to be bound by the agreement and the employees whose 14
employment will be subject to the agreement. 15
to accompany notice 16
Particulars
41. The notice must be accompanied by particulars of-- 17
(a) the single business or part of the single business to be covered by 18
the proposed agreement; and 19
(b) the types of employees whose employment will be subject to the 20
agreement and the other persons who will be bound by the 21
agreement; and 22
(c) the matters that the initiating party proposes should be dealt with 23
by the agreement; and 24
(d) the proposed nominal expiry date of the agreement; and 25
(e) any other matters prescribed under a regulation. 26
26 Section 19 (Agreement with employee organisations) or 22 (Greenfields
agreement)
27 Section 20 (Agreement with employees)
s 42 54 s 43
Workplace Relations
bargaining period begins 1
When
42. The bargaining period begins at the end of 7 days after-- 2
(a) the day on which the notice was given; or 3
(b) if the notice was given to different persons on different days--the 4
day on which it was last given. 5
action 6
Protected
43.(1) This section identifies certain action ("protected action") to 7
which section 5128 applies. 8
(2) During the bargaining period, a protected person is entitled to 9
organise or engage in industrial action directly against the employer for the 10
purpose of-- 11
(a) supporting or advancing claims made in relation to the proposed 12
agreement; or 13
(b) responding to a lockout by the employer of employees whose 14
employment will be subject to the agreement. 15
(3) If the protected person does so, the organising of, or engaging in, the 16
industrial action is protected action. 17
(4) During the bargaining period, the employer is entitled to lock out 18
from their employment all or any of the employees whose employment will 19
be subject to the agreement for the purpose of-- 20
(a) supporting or advancing claims made by the employer in relation 21
to the proposed agreement; or 22
(b) responding to industrial action by any of the employees whose 23
employment will be subject to the agreement. 24
(5) If the employer does so, the lockout is protected action. 25
(6) If the employer locks out an employee, the employer may refuse to 26
pay remuneration to the employee for the period of the lockout. 27
(7) The employer can not lock out an employee unless the continuity of 28
the employee's employment, for the purposes prescribed under a regulation, 29
28 Section 51 (Immunity provisions)
s 44 55 s 44
Workplace Relations
is not affected by the lockout. 1
(8) This section has effect subject to the following provisions of this 2
division. 3
(9) In this section-- 4
"protected person" means-- 5
(a) an employee organisation that is a negotiating party; or 6
(b) a member of the employee organisation who is employed by the 7
employer; or 8
(c) an officer or employee of the employee organisation acting in that 9
capacity; or 10
(d) an employee who is a negotiating party. 11
action must not involve secondary boycott 12
Industrial
44.(1) Engaging in industrial action is not protected action if it is-- 13
(a) engaged in in concert with 1 or more persons or organisations 14
who are not protected persons; or 15
(b) organised other than solely by 1 or more protected persons. 16
(2) Organising industrial action is not protected action if it is-- 17
(a) organised in concert with 1 or more persons or organisations who 18
are not protected persons; or 19
(b) intended to be engaged in other than solely by 1 or more protected 20
persons. 21
(3) In this section-- 22
"protected person" means-- 23
(a) an employee organisation that is a negotiating party; or 24
(b) a member of the employee organisation who is employed by the 25
employer; or 26
(c) an officer or employee of the employee organisation acting in that 27
capacity; or 28
(d) an employee who is a negotiating party. 29
s 45 56 s 45
Workplace Relations
action etc. must not be taken until after nominal expiry 1
Industrial
date of certain agreements and awards 2
45.(1) From when-- 3
(a) a certified agreement; or 4
(b) an award under section 55(4);29 5
starts operating until its nominal expiry date has passed, an employee, 6
organisation or officer covered by subsection (2) must not, for the purpose 7
of supporting or advancing claims against the employer in relation to the 8
employment of employees whose employment is subject to the agreement 9
or award, engage in industrial action. 10
(2) The following persons are covered by subsection (1)-- 11
(a) an employee whose employment is subject to the agreement or 12
award; 13
(b) an employee organisation that is bound by the agreement or 14
award; 15
(c) an officer or employee of the employee organisation acting in that 16
capacity. 17
(3) If the employee, organisation or officer contravenes subsection (1), 18
the action is not protected action. 19
(4) From when-- 20
(a) a certified agreement; or 21
(b) an award under section 55(4); 22
comes into operation until its nominal expiry date has passed, the employer 23
must not, for the purpose of supporting or advancing the employer's claims 24
in relation to the employment of employees whose employment is subject 25
to the agreement, lock out an employee from his or her employment. 26
(5) If the employer does so, the lockout is not protected action. 27
29 Section 55 (What happens if commission terminates a bargaining period under
s 54(3) or (7))
s 46 57 s 46
Workplace Relations
(6) Engaging in industrial action in contravention of section 9530 is not 1
protected action. 2
of action to be given 3
Notice
46.(1) Action taken as mentioned in section 43(2)31 by the following 4
persons is not protected action unless the requirements in subsection (2) are 5
met-- 6
(a) an employee organisation; 7
(b) a member of the employee organisation; 8
(c) an officer or employee of the employee organisation acting in that 9
capacity; 10
(d) an employee who is a negotiating party. 11
(2) The requirements are that the employee organisation, or the employee 12
who is a negotiating party, has given the employer-- 13
(a) if the action is in response to, and is taken after the start of, a 14
lockout of employees by the employer in relation to the proposed 15
agreement--notice of the intention to take the action; or 16
(b) otherwise--at least 3 working days notice of the intention to take 17
the action. 18
(3) If 1 or more of the negotiating parties is an employee organisation, 19
any action taken as mentioned in section 43(4) by the employer to lock out 20
employees from their employment is not protected action unless-- 21
(a) the employer has given the other negotiating party or each of the 22
other negotiating parties-- 23
(i) if the lockout is in response to, and takes place after the start 24
of, industrial action organised or engaged in by an 25
organisation that is a negotiating party in relation to the 26
proposed agreement--notice of the intended lockout; or 27
(ii) otherwise--at least 3 working days notice of the intended 28
30 Section 95 (Industrial action by party to QWA)
31 Section 43 (Protected action)
s 47 58 s 47
Workplace Relations
lockout; and 1
(b) as far as it relates to a particular employee-- 2
(i) if paragraph (a)(i) applies--before the lockout begins; or 3
(ii) otherwise--at least 3 working days before the lockout 4
begins; 5
the employer has given notice to the particular employee, or has 6
taken other reasonable steps to notify the particular employee, of 7
the intended lockout. 8
(4) If 1 or more of the negotiating parties is an employee whose 9
employment will be subject to the proposed agreement, any action taken as 10
mentioned in section 43(4) by the employer to lock out employees from 11
their employment is not protected action as far as it relates to a particular 12
employee unless-- 13
(a) if the lockout is in response to, and takes place after the start of, 14
industrial action organised or engaged in by any of the employees 15
who are negotiating parties in relation to the proposed 16
agreement--before the lockout begins; or 17
(b) otherwise--at least 3 working days before the lockout begins; 18
the employer has given notice to the particular employee, or has taken other 19
reasonable steps to notify the particular employee, of the intended lockout. 20
(5) A notice under this section must state the nature of the intended action 21
and the day when it will begin. 22
(6) A notice under this section may be given before the start of the 23
bargaining period. 24
must precede industrial action 25
Negotiation
47.(1) Engaging in industrial action by a person who is a member of an 26
employee organisation that is a negotiating party is not protected action 27
unless the organisation has, before the person begins to engage in the 28
industrial action-- 29
(a) genuinely tried to reach agreement with the employer; and 30
(b) if the commission has made an order about the 31
negotiations--complied with the order as far as it applies to the 32
s 48 59 s 48
Workplace Relations
organisation. 1
(2) Engaging in industrial action by an employee who is a negotiating 2
party is not protected action unless, before the employee begins to engage in 3
the industrial action-- 4
(a) the employee, or another employee acting for the employee, has 5
genuinely tried to reach agreement with the employer; and 6
(b) if the commission has made an order in relation to the 7
negotiations--the employee has complied with the order as far as 8
it applies to the employee. 9
(3) A lockout of employees by an employer is not protected action unless 10
the employer has, before the employer begins the lockout-- 11
(a) if the employees are members of an organisation that is a 12
negotiating party--genuinely tried to reach agreement with the 13
organisation; and 14
(b) if the employees are negotiating parties--genuinely tried to reach 15
agreement with the employees; and 16
(c) if the commission has made an order about the 17
negotiations--complied with the order as far as it applies to the 18
employer. 19
ballot for bargaining period 20
Secret
48.(1) This section applies if the commission considers-- 21
(a) industrial action relating to a bargaining period is being taken or 22
the taking of industrial action is threatened, impending or 23
probable; and 24
(b) finding out, in relation to the matter, the attitudes of the employees 25
whose employment will be subject to the proposed agreement 26
might help-- 27
(i) to stop or prevent the industrial action; or 28
(ii) to settle the matters giving rise to the industrial action. 29
(2) The commission may order that a vote of employees be taken by 30
s 49 60 s 49
Workplace Relations
secret ballot32 (with or without a provision for absent voting), in accordance 1
with the commission's directions, to find out their attitudes about the matter. 2
(3) After an order is made, the organising of, or engaging in, industrial 3
action by the employee organisation or employees is not protected action 4
unless-- 5
(a) the ballot has been taken; and 6
(b) the industrial action has been approved by a majority of the valid 7
votes cast in the ballot. 8
(4) If after an order is made, but before the vote is taken, the commission 9
forms the view that the ballot should not be proceeded with because it has 10
satisfied itself that-- 11
(a) the matters giving rise to the industrial action have been, or are 12
about to be, settled; or 13
(b) the industrial action has stopped or been prevented, or is about to 14
stop or be prevented; 15
the commission must revoke the order. 16
(5) In subsection (3)-- 17
"organisation" includes-- 18
(a) a member of the organisation; and 19
(b) an officer or employee of the organisation acting in that capacity. 20
action must be properly authorised 21
Industrial
49.(1) Engaging in industrial action by members of an employee 22
organisation that is a negotiating party is not protected action unless, before 23
the industrial action begins-- 24
(a) the industrial action is properly authorised by the organisation's 25
management committee or someone authorised by the committee 26
to authorise the industrial action; and 27
(b) if the organisation's rules specify the way industrial action is to be 28
32 See section 301 (Conducting a secret ballot) for the way a secret ballot is
conducted.
s 50 61 s 50
Workplace Relations
authorised--the industrial action is properly authorised under the 1
rules; and 2
(c) notice of the giving of the authorisation is given to the registrar. 3
(2) Industrial action is taken to be properly authorised under an employee 4
organisation's rules even though a technical breach has happened in 5
authorising the industrial action, if the person who committed the breach 6
acted in good faith. 7
(3) Examples of a technical breach in authorising industrial action 8
include-- 9
(a) a contravention of the organisation's rules; and 10
(b) an error or omission in complying with this Act; and 11
(c) participation, by a person not eligible to do so, in the making of a 12
decision by a management committee, or by members, of the 13
organisation. 14
(4) Industrial action is taken to have been properly authorised under an 15
employee organisation's rules, and to have been authorised before the 16
industrial action began, unless-- 17
(a) the commission declares in a proceeding that the industrial action 18
was not properly authorised under the rules; and 19
(b) the proceeding was brought in the commission within 6 months 20
after the notice was given to the registrar under subsection (1)(c). 21
(5) As far as an employee organisation's rules specify the way in which 22
industrial action that section 43 entitles the organisation to organise or 23
engage in is to be authorised, the rules do not contravene the Industrial 24
Organisation Act 1996, section 2233 unless the way specified contravenes 25
that section. 26
happens if application to certify agreement is not made within 27
What
21 days 28
50. Unless an application to the commission to certify an agreement is 29
made within 21 days after the day when the agreement is made, nothing 30
33 Industrial Organisation Act 1996, section 22 (General requirements for rules)
s 51 62 s 52
Workplace Relations
done during the bargaining period by an employee whose employment is 1
subject to the agreement or by a person bound by the agreement is protected 2
action. 3
provisions 4
Immunity
51.(1) No action lies under a law for industrial action that is protected 5
action unless the action has involved or is likely to involve-- 6
(a) personal injury; or 7
(b) wilful or reckless destruction of, or damage to, property; or 8
(c) the unlawful taking, keeping or use of property. 9
(2) Subsection (1) does not prevent an action for defamation being 10
brought in relation to anything that happened during the industrial action. 11
(3) In this section-- 12
"law" means a written or unwritten law, but does not include the State 13
Transport Act 1938. 14
not to dismiss employee etc. for engaging in protected action 15
Employer
52.(1) An employer must not-- 16
(a) dismiss an employee, injure an employee in his or her 17
employment or change an employee's position to the employee's 18
prejudice; or 19
(b) threaten to dismiss an employee, injure an employee in his or her 20
employment or change an employee's position to the employee's 21
prejudice; 22
wholly or partly because the employee is proposing to engage, is engaging, 23
or has engaged, in protected action. 24
(2) Subsection (1) does not apply to any of the following actions taken by 25
the employer-- 26
(a) standing-down the employee; 27
(b) refusing to pay the employee if, under the common law, the 28
employer is permitted to do so because the employee has not 29
s 53 63 s 54
Workplace Relations
performed work as directed; 1
(c) action of the employer that is itself protected action. 2
(3) In a proceeding under section 6334 for an alleged contravention of 3
subsection (1), it is to be presumed, unless the employer proves otherwise, 4
that the alleged conduct of the employer was carried out wholly or partly 5
because the employee was proposing to engage, was engaging, or had 6
engaged, in protected action. 7
bargaining period ends 8
When
53. The bargaining period ends if any of the following events happen-- 9
(a) an agreement under division 235 is made by the employer and any 10
1 or more of the other negotiating parties; 11
(b) the initiating party gives each of the other negotiating parties 12
notice that the initiating party no longer wants to reach an 13
agreement under division 2 with the other parties; 14
(c) the commission terminates the bargaining period. 15
of commission to suspend or terminate bargaining period 16
Power
54.(1) The commission may suspend or terminate the bargaining period 17
if, after giving the negotiating parties an opportunity to be heard, it is 18
satisfied any of the circumstances in subsections (2) to (7) exists or existed. 19
(2) A circumstance for subsection (1) is that a negotiating party that, 20
before or during the bargaining period, has organised or taken, or is 21
organising or taking, industrial action to support or advance claims in 22
relation to the proposed agreement-- 23
(a) did not genuinely try to reach an agreement with the other 24
negotiating parties before organising or taking the industrial 25
action; or 26
(b) is not genuinely trying to reach an agreement with the other 27
negotiating parties; or 28
34 Section 63 (Penalties for contravening penalty provisions)
35 Division 2 (Making agreements)
s 54 64 s 54
Workplace Relations
(c) has not complied with the commission's directions relating to the 1
proposed agreement or to a matter that arose during the 2
negotiations for the proposed agreement; or 3
(d) has not complied with a recommendation of the commission 4
under section 24136 relating to-- 5
(i) the proposed agreement; or 6
(ii) a matter that arose during the negotiations for the proposed 7
agreement. 8
(3) A circumstance for subsection (1) is that industrial action, being taken 9
to support or advance claims in relation to the proposed agreement, is 10
threatening-- 11
(a) to endanger the life, the personal health or safety, or the welfare, 12
of the population or of part of it; or 13
(b) to cause significant damage to the economy or an important part 14
of it. 15
(4) A circumstance for subsection (1) is that industrial action is being 16
organised or taken by-- 17
(a) an organisation that is a negotiating party; or 18
(b) a member of the organisation who is employed by the employer; 19
or 20
(c) an officer or employee of the organisation acting in that capacity; 21
against an employer to support or advance claims in relation to 22
employees-- 23
(d) whose employment will be subject to the agreement; and 24
(e) who are neither members, nor eligible to become members, of the 25
organisation. 26
(5) A circumstance for subsection (1) is that industrial action that is being 27
organised or taken by an organisation that is a negotiating party-- 28
(a) relates, to a significant extent, to a demarcation dispute; or 29
(b) contravenes a commission order that relates, to a significant 30
36 Section 241 (Recommendation by consent)
s 54 65 s 54
Workplace Relations
extent, to a demarcation dispute. 1
(6) If the bargaining period relates to employees employed in a part of a 2
single business, a circumstance for subsection (1) is that the initiating party 3
is not complying with an award, an order, a direction of the commission, or 4
a certified agreement, in relation to another part of the single business. 5
(7) A circumstance for subsection (1) is that-- 6
(a) immediately before the commencement of this section, the wages 7
and conditions of the type of employees whose employment will 8
be subject to the agreement were determined by a paid rates 9
award, or would have been so determined if a certified agreement 10
or EFA had not prevailed over the award; and 11
(b) as far as the wages and conditions of the type of employees 12
whose employment will be subject to the agreement were, before 13
the commencement of this section, customarily determined by an 14
award, they were determined by a paid rates award; and 15
(c) there is no reasonable prospect of the negotiating parties reaching 16
an agreement under division 2 during the bargaining period. 17
(8) The commission-- 18
(a) must not suspend or terminate the bargaining period under 19
subsection (1), in a circumstance in subsection (2), (4), (5), (6) or 20
(7), except on application by a negotiating party; but 21
(b) may suspend or terminate the period under subsection (1), in a 22
circumstance in subsection (3)-- 23
(i) of its own initiative; or 24
(ii) on application by a negotiating party or the Minister. 25
(9) Anything done by a negotiating party or another person in relation to 26
the proposed agreement is not protected action if it is done while the 27
bargaining period is suspended. 28
(10) When terminating the bargaining period, if the commission 29
considers it to be in the public interest, it may declare that, during a specified 30
period beginning at the time of the termination, a specified negotiating party 31
or employee of the employer-- 32
(a) is not allowed to initiate a new bargaining period in relation to 33
s 55 66 s 55
Workplace Relations
specified matters that are dealt with by the proposed agreement; or 1
(b) may initiate the bargaining period only on specified conditions. 2
(11) In this section-- 3
"paid rates award" means an award that-- 4
(a) includes a statement to the effect that it is a paid rates award; or 5
(b) has been regarded by the commission as a paid rates award when 6
applying principles for determining wages and employment 7
conditions. 8
happens if commission terminates a bargaining period under 9
What
s 54(3) or (7) 10
55.(1) This section applies if a bargaining period is terminated for the 11
circumstance in section 54(3) or (7). 12
(2) As soon as practicable, the commission must begin to exercise the 13
conciliation powers under section 56-- 14
(a) to facilitate the making of an agreement under division 2;37 or 15
(b) otherwise to settle any matter or issue that could be covered by the 16
agreement. 17
(3) Subsection (2) applies even if the commission has already attempted 18
conciliation during the bargaining period. 19
(4) If, after conciliation powers under subsection (2) have been exercised, 20
a full bench is satisfied-- 21
(a) the negotiating parties have not settled the matters that were at 22
issue during the bargaining period (whether or not by making an 23
agreement); and 24
(b) it is not likely that further conciliation will result in the matters 25
being settled within a reasonable time; 26
the full bench may exercise the arbitration powers mentioned in section 56 27
to make an award that deals with the matters. 28
37 Division 2 (Making agreements)
s 56 67 s 57
Workplace Relations
(5) Despite any other provision of this Act, the arbitration powers may be 1
exercised only by a full bench. 2
(6) In exercising the arbitration powers, a full bench must consider the 3
following-- 4
(a) the matters that were at issue during the bargaining period; 5
(b) the merits of the case; 6
(c) the interests of the negotiating parties and the public interest; 7
(d) how productivity might be improved in the business or part of the 8
business concerned; 9
(e) the extent to which the conduct of the negotiating parties during 10
the bargaining period was reasonable; 11
(f) any relevant principles formulated by a full bench for this 12
subsection. 13
(7) Subsection (6) does not, by implication, limit the matters to which a 14
full bench may have regard. 15
of commission and full bench when s 55 applies 16
Powers
56.(1) The commission has the conciliation powers for the matters in 17
section 55(2) that it would have under section 24038 if that section applied to 18
conciliation of the matters instead of industrial disputes. 19
(2) A full bench has the arbitration powers for the matters in 20
section 55(4) that it would have under section 240 if that section applied to 21
arbitration of the matters, instead of industrial disputes, by a full bench. 22
under s 55 23
Awards
57.(1) An award under section 55(4)39 must specify a date as its nominal 24
expiry date. 25
(2) Subject to this section, the award operates at all times after it 26
38 Section 240 (Action on industrial dispute)
39 Section 55 (What happens if commission terminates a bargaining period under
s 54(3) or (7))
s 57 68 s 57
Workplace Relations
commences. 1
(3) The award has effect subject to any conditions specified in it. 2
(4) Before the award's nominal expiry date has passed, a full bench must 3
not revoke the award unless satisfied-- 4
(a) the employer and the 1 or more organisations, or a majority of the 5
employees, who are bound by the award have agreed to the 6
revocation (for example, because they propose to make an 7
agreement under division 240); and 8
(b) the revocation would not be against the public interest. 9
(5) After the award's nominal expiry date-- 10
(a) the employer, or an organisation, bound by the award; or 11
(b) a majority of the employees to whom the award applies; 12
may give notice to all of the employees, or other employees, to whom the 13
award applies and persons, or other persons, who are bound by the award 14
and to the commission, stating that the award is revoked with effect from a 15
specified day. 16
(6) The specified day must be at least 28 days after-- 17
(a) the day on which the notice is given; or 18
(b) if it is given to different persons on different days--the day on 19
which it is last given. 20
(7) The award is revoked on the specified day. 21
(8) The award may be amended only to-- 22
(a) remove ambiguity or uncertainty; or 23
(b) include, omit or amend a term (however specified) that authorises 24
an employer to stand-down an employee. 25
(9) Before the award's nominal expiry date has passed, no bargaining 26
period may be initiated under section 4041 for negotiating an agreement in 27
40 Division 2 (Making agreements)
41 Section 40 (Initiation of bargaining period)
s 58 69 s 60
Workplace Relations
relation to the employment of employees whose employment is dealt with 1
in the award. 2
not to arbitrate during bargaining period 3
Commission
58. During a bargaining period, the commission must not exercise its 4
arbitration powers under section 24042 for a matter that is at issue between 5
the negotiating parties. 6
for agreements 7
Conciliation
59.(1) The commission has the conciliation powers for a matter arising 8
under this part that it would have under section 240 if that section applied to 9
conciliation of the matters instead of industrial disputes. 10
(2) If 2 or more employee organisations are involved in the negotiations 11
or proposed negotiations, the commission may order that the organisations 12
be represented, for conciliating the matter, by a single person or group of 13
persons authorised by the organisations to represent them (whether 14
generally or for the particular negotiations). 15
(3) Subsection (2) does not, by implication, limit subsection (1). 16
not to discriminate between unionist and non-unionist 17
Employers
60. In negotiating an agreement under division 2,43 an employer must not 18
discriminate between the employer's employees because-- 19
(a) some of the employees are members of an employee 20
organisation, while others are not members of the organisation; or 21
(b) some of the employees are members of a particular employee 22
organisation, while others are not members of the organisation or 23
are members of a different employee organisation. 24
42 Section 240 (Action on industrial dispute)
43 Division 2 (Making agreements)
s 61 70 s 62
Workplace Relations
8--Prohibition of coercion in relation to agreements 1
Division
of persons to make, amend or terminate certified agreements 2
Coercion
etc. 3
61.(1) A person must not-- 4
(a) take or threaten to take industrial action or other action; or 5
(b) refrain or threaten to refrain from taking action; 6
with intent to coerce someone else to agree, or not to agree, to-- 7
(c) making, amending or terminating, or extending the nominal 8
expiry date of, an agreement under division 2;44 or 9
(d) approving anything mentioned in paragraph (c). 10
(2) Subsection (1) does not apply to action, or industrial action, that is 11
protected action (within the meaning of division 745). 12
(3) An employer must not coerce, or attempt to coerce, an employee of 13
the employer-- 14
(a) not to make a request mentioned in section 20(5)46 in relation to 15
an agreement the employer proposes to make; or 16
(b) to withdraw the request. 17
Division 9--Enforcement and remedies 18
provisions 19
Penalty
62. In this division, each of the following is a penalty provision-- 20
(a) section 35 (Amendment if discrimination between unionists and 21
non-unionists); 22
(b) section 45 (Industrial action etc. must not be taken until after 23
44 Division 2 (Making agreements)
45 Division 7 (Negotiations for certified agreements etc.)
46 Section 20 (Agreement with employees)
s 63 71 s 63
Workplace Relations
nominal expiry date of certain agreements and awards); 1
(c) section 52 (Employer not to dismiss employee etc. for engaging 2
in protected action); 3
(d) section 60 (Employers not to discriminate between unionist and 4
non-unionist); 5
(e) section 61 (Coercion of persons to make, amend or terminate 6
certified agreements etc.). 7
for contravening penalty provisions 8
Penalties
63.(1) A contravention of a penalty provision is not an offence. 9
(2) However, a magistrate may, by order, impose a penalty on a person 10
who contravenes a penalty provision. 11
(3) The penalty can not be more than-- 12
(a) for a corporation--135 penalty units; or 13
(b) otherwise--27 penalty units. 14
(4) An application for an order for a contravention of section 3547 may be 15
made by-- 16
(a) the employees making the request mentioned in section 35; or 17
(b) an employee organisation of which any of the employees making 18
the request is a member; or 19
(c) an inspector; or 20
(d) another person prescribed under a regulation. 21
(5) An application for an order for a contravention of section 4548 may be 22
made by-- 23
(a) an employee whose employment is subject to the certified 24
agreement concerned; or 25
(b) another person who is bound by the agreement; or 26
47 Section 35 (Amendment if discrimination between unionists and non-unionists)
48 Section 45 (Industrial action etc. must not be taken until after nominal expiry
date of certain agreements and awards)
s 63 72 s 63
Workplace Relations
(c) another person prescribed under a regulation. 1
(6) An application for an order for a contravention of section 5249 may be 2
made by-- 3
(a) the employee concerned; or 4
(b) an employee organisation of which the employee is a member; or 5
(c) an inspector; or 6
(d) another person prescribed under a regulation. 7
(7) An application for an order for a contravention of section 6050 may be 8
made by-- 9
(a) an employee who allegedly was disadvantaged because of the 10
discrimination mentioned in section 60; or 11
(b) an employee organisation of which the employee is a member; or 12
(c) an inspector; or 13
(d) another person prescribed under a regulation. 14
(8) An application for an order for a contravention of section 6151 may be 15
made by-- 16
(a) an employee whose employment is subject to the agreement, or 17
will be subject to the proposed agreement concerned; or 18
(b) another person bound by the agreement or who will be bound by 19
the proposed agreement; or 20
(c) the person who allegedly was intended to be coerced; or 21
(d) an employee organisation of which the person is a member; or 22
(e) an inspector; or 23
(f) another person prescribed under a regulation. 24
(9) The magistrate may order that a penalty, or part of a penalty, be paid 25
49 Section 52 (Employer not to dismiss employee etc. for engaging in protected
action)
50 Section 60 (Employers not to discriminate between unionist and non-unionist)
51 Section 61 (Coercion of persons to make, amend or terminate certified
agreements etc.)
s 64 73 s 65
Workplace Relations
to any person who may have made the application (other than an officer or 1
employee of the State or a public service officer). 2
(10) Any part of the penalty that is ordered to be paid to the person must 3
first be paid to the person. 4
(11) The remainder of the penalty must then be paid to the consolidated 5
fund. 6
and compensation if employer contravenes s 52 7
Reinstatement
64.(1) If an employer contravenes section 52,52 the commission may 8
order the employer-- 9
(a) if the contravention was constituted by dismissing an 10
employee--to reinstate the employee to the position the employee 11
occupied immediately before the dismissal or to a position at least 12
as favourable as that position; and 13
(b) to pay the employee dismissed, injured or prejudiced, 14
compensation for loss suffered because of the dismissal, injury or 15
prejudice. 16
(2) The rights of and relating to reinstatement that are conferred on an 17
employee by this section do not limit any other rights of the employee. 18
Division 10--General 19
ballot on valid majority 20
Secret
65.(1) If the commission-- 21
(a) is required under this part to be satisfied that a valid majority of 22
the persons employed at a particular time whose employment is 23
or will be subject to an agreement have genuinely made or 24
terminated the agreement, or given an approval; and 25
(b) is not so satisfied; 26
52 Section 52 (Employer not to dismiss employee etc. for engaging in protected
action)
s 66 74 s 66
Workplace Relations
the commission may order a vote be taken by secret ballot53 (with or 1
without a provision for absent voting), in accordance with the commission's 2
directions, of persons employed at the time of the ballot whose employment 3
is or will be subject to the agreement to decide whether they would make or 4
terminate the agreement, or give the approval. 5
(2) If a majority of the validly cast votes is in favour of making or 6
terminating the agreement, or giving the approval, the commission is taken 7
to be satisfied of the requirement. 8
(3) Before a vote is taken, the commission may revoke an order under 9
subsection (1) if it becomes satisfied that the requirement of 10
subsection (1)(a) has been met. 11
laws 12
Complementary
66.(1) To enable functions to be performed or powers to be exercised by 13
the Australian Commission, the Commonwealth provisions apply as a law 14
of the State with-- 15
(a) the amendments required under a regulation; and 16
(b) any other amendments allowed under a regulation. 17
(2) In this section-- 18
"Commonwealth provisions" means the Commonwealth Act, part VIB 19
and the other provisions of that Act as far as they relate to the part. 20
53 See section 301 (Conducting a secret ballot) for the way a secret ballot is
conducted.
s 67 75 s 68
Workplace Relations
ART 2--QUEENSLAND WORKPLACE 1
P
AGREEMENTS 2
Division 1--Preliminary 3
of pt 2 4
Object
67. The object of this part is to facilitate the making, approving by an 5
enterprise commissioner, and operation, of certain agreements ("QWAs") 6
between a single employer and a single employee. 7
for pt 2 8
Definitions
68. In this part-- 9
"additional approval requirements" means the additional approval 10
requirements in section 84.54 11
"amendment agreement" see section 79. 12
"ancillary document" means any of the following-- 13
(a) an amendment agreement; 14
(b) an extension agreement; 15
(c) a termination agreement; 16
(d) a termination notice. 17
"approval notice" means an approval notice issued by an enterprise 18
commissioner. 19
"bargaining agent" means a person appointed as a bargaining agent under 20
section 78. 21
"certified copy" of a document means a copy that is certified as being a 22
true copy of the document. 23
"employee" see section 69(2). 24
"employer" see section 69(2). 25
54 Section 84 (Additional approval requirements for QWA and ancillary documents)
s 69 76 s 69
Workplace Relations
"existing employee", in relation to a QWA, means an employee who 1
signed the QWA after commencing the employment to which the 2
QWA relates. 3
"extension agreement" means an agreement to extend the nominal expiry 4
date of a QWA. 5
"file" a QWA or ancillary document means file with the registrar or 6
employment advocate. 7
"filing receipt" means a receipt issued by the registrar or employment 8
advocate. 9
"filing requirements" means the filing requirements in section 82. 10
"new employee", in relation to a QWA, means an employee who signed 11
the QWA before, or at the time of, commencing the employment to 12
which the QWA relates. 13
"nominal expiry date" of a QWA, see section 76. 14
"party", for a QWA or ancillary document, means the employer or 15
employee. 16
"period of operation" of a QWA, see section 77. 17
"QWA" see sections 69 and 89. 18
"QWA date" means the date on which the employer and employee sign 19
the QWA or, if they sign on different dates, the later of the dates. 20
"refusal notice" means a refusal notice issued by an enterprise 21
commissioner under division 5.55 22
"relevant or designated award" means the relevant or designated award 23
that is used when applying the no-disadvantage test. 24
"termination agreement" see section 80. 25
"termination notice" see section 80. 26
QWAs and ancillary documents--interpretation 27
Proposed
69.(1) As far as the context permits, a reference in this part to a QWA or 28
55 Division 5 (Approving QWAs and ancillary documents)
s 70 77 s 71
Workplace Relations
ancillary document includes a reference to a proposed QWA or ancillary 1
document. 2
(2) In relation to a proposed QWA or ancillary document, a reference in 3
this part to the employer or employee is a reference to the person who will 4
be the employer or employee when the QWA or ancillary document starts 5
to operate. 6
and powers of enterprise commissioner 7
Functions
70.(1) An enterprise commissioner has the functions set out in this part. 8
(2) In performing the functions, the enterprise commissioner may 9
exercise the powers of a commissioner that are necessary to facilitate the 10
approval, or operation, of a QWA or ancillary document. 11
(3) In performing the functions, the enterprise commissioner may call on 12
the assistance of the employment advocate. 13
(4) The enterprise commissioner must, as far as practicable, perform the 14
functions-- 15
(a) in a way that furthers the objects of this Act and, in particular, the 16
object of this part; and 17
(b) without undue delay; and 18
(c) in an informal way. 19
(5) Section 335(4) 56 does not apply to the performance of the enterprise 20
commissioner's functions under this part. 21
regarding employment advocate's functions 22
Protocol
71.(1) As soon as practicable after the commencement of this part, the 23
president and chief executive must establish a protocol about the 24
employment advocate's functions under this part. 25
(2) In exercising functions under this part, the employment advocate 26
must apply the protocol. 27
56 Section 335 (Basis of procedures and decisions of the commission and
magistrates)
s 72 78 s 74
Workplace Relations
Division 2--General rules about QWAs and ancillary documents 1
and ancillary documents only have effect as provided by this 2
QWAs
part 3
72.(1) A QWA or ancillary document has effect as provided by this part, 4
and not otherwise. 5
(2) In particular-- 6
(a) a QWA for a new employee has no effect before a filing receipt is 7
issued for the QWA; and 8
(b) a QWA for an existing employee has no effect before an approval 9
notice is issued for the QWA. 10
QWAs 11
Collective
73.(1) In this part, 2 or more agreements that have been negotiated 12
collectively may be included in the same document if the same employer is 13
a party to all the agreements. 14
(2) The agreements need not be in the same terms. 15
(3) A QWA for a new employee can not be included in the same 16
document as a QWA for an existing employee. 17
Division 3--Making, amending or terminating a QWA 18
and employee may make a QWA 19
Employer
74.(1) A single employer and a single employee, other than an employer 20
and employee mentioned in subsection (3), may make a QWA that deals 21
with matters relating to the relationship between an employer and employee. 22
(2) A QWA may be made before commencement of the employment. 23
(3) The employer of an employee employed in 1 of the following may 24
not make a QWA with the employee-- 25
(a) a department of government or part of a department; 26
(b) a public service office or part of a public service office under the 27
s 75 79 s 75
Workplace Relations
Public Service Act 1996; 1
(c) an agency, authority, commission, corporation, instrumentality, 2
office, or other entity, established under an Act or under State 3
authorisation for a public or State purpose; 4
(d) a part of an entity mentioned in paragraph (c); 5
(e) a registry or other administrative office of a court of the State of 6
any jurisdiction; 7
(f) the parliamentary service; 8
(g) the Governor's official residence (known as `Government 9
House') and its associated administrative unit; 10
(h) a court of the State of any jurisdiction; 11
(i) the police service to the extent that it does not include staff 12
members mentioned in the Police Service Administration Act 13
1990, section 2.5(1)(a); 14
(j) another entity, or part of another entity, declared under a 15
regulation for this section. 16
to be included in QWA 17
Matters
75.(1) The employer must ensure the QWA includes the provisions 18
about discrimination prescribed under a regulation. 19
(2) If the QWA does not in fact include the prescribed provisions about 20
discrimination, the QWA is taken to include the provisions. 21
(3) The employer must ensure the QWA does not include provisions that 22
prohibit or restrict disclosure of details of the QWA by either party to 23
another person. 24
(4) The employer must ensure the QWA includes a dispute resolution 25
procedure. 26
(5) If the QWA does not include a dispute resolution procedure, the 27
QWA is taken to include the model dispute resolution procedure prescribed 28
under a regulation. 29
(6) If a dispute resolution procedure confers powers on an enterprise 30
commissioner to prevent or settle disputes between the parties to the QWA 31
s 76 80 s 77
Workplace Relations
about the application or interpretation of the QWA, the enterprise 1
commissioner may exercise the powers. 2
(7) To avoid doubt, unless power is conferred on an enterprise 3
commissioner to prevent or settle disputes, the enterprise commissioner 4
must not exercise arbitration powers to prevent or settle a dispute between 5
the parties to the QWA. 6
expiry date of QWA 7
Nominal
76.(1) A QWA may specify a date as its nominal expiry date. 8
(2) The date can not be more than 3 years after the QWA date. 9
(3) If no date is specified, the nominal expiry date is the third anniversary 10
of the QWA date. 11
(4) An employer and employee may make a written agreement (an 12
"extension agreement") that extends the nominal expiry date. 13
(5) The extended date can not be more than 3 years after the QWA date. 14
(6) The extension agreement has no effect unless a filing receipt is issued 15
for the extension agreement at least 21 days before the nominal expiry date 16
that is to be extended. 17
(7) The extension agreement takes effect on the day after an approval 18
notice is issued for the extension agreement. 19
of operation of QWA 20
Period
77.(1) A QWA for a new employee starts operating on the later of the 21
following days-- 22
(a) the day after a filing receipt is issued for the QWA; 23
(b) the day specified in the QWA as the starting day; 24
(c) the day the employment commences. 25
(2) A QWA for a new employee stops operating at the earlier of the 26
following times-- 27
(a) the end of the day when a refusal notice is issued in relation to the 28
QWA; 29
s 78 81 s 79
Workplace Relations
(b) the time when a termination under section 8057 takes effect; 1
(c) the time when another QWA between the employer and 2
employee starts to operate. 3
(3) A QWA for an existing employee starts operating on the later of the 4
following days-- 5
(a) the day after an approval notice is issued for the QWA; 6
(b) the day specified in the QWA as the starting day. 7
(4) A QWA for an existing employee stops operating at the earlier of the 8
following times-- 9
(a) the time when a termination under section 80 takes effect; 10
(b) the time when another QWA between the employer and 11
employee starts to operate. 12
agents 13
Bargaining
78.(1) An employer or employee may appoint a person to be his or her 14
bargaining agent for the making, approval, amendment or termination of a 15
QWA. 16
(2) The appointment must be written. 17
(3) An employer or employee must not refuse to recognise a bargaining 18
agent appointed by the other party if the employer or employee has been 19
given a copy of the bargaining agent's instrument of appointment. 20
(4) An employer or employee must not coerce, or attempt to coerce, the 21
other party-- 22
(a) to appoint, or not to appoint, a particular person as a bargaining 23
agent; or 24
(b) to terminate the appointment of a bargaining agent. 25
mending a QWA 26
A
79.(1) An employer and employee may make a written agreement 27
57 Section 80 (Terminating a QWA)
s 80 82 s 81
Workplace Relations
("amendment agreement") amending a QWA. 1
(2) The amendment agreement takes effect on the later of the following 2
days-- 3
(a) the day after an approval notice is issued for the amendment 4
agreement; 5
(b) the day specified in the amendment agreement as the date of 6
effect. 7
(3) Section 7558 applies to the QWA as amended in the same way as it 8
applied to the original QWA. 9
a QWA 10
Terminating
80.(1) The employer and employee may at any time make a written 11
agreement ("termination agreement") to terminate the QWA. 12
(2) The termination agreement takes effect on the later of the following 13
times-- 14
(a) the end of the day on which an approval notice is issued for the 15
termination agreement; 16
(b) the day specified in the termination agreement as the date of 17
effect. 18
(3) After the nominal expiry date of a QWA, either the employer or 19
employee may file a notice ("termination notice") to terminate the QWA. 20
(4) The termination notice takes effect at the end of the 28th day after the 21
party filing the termination notice gave notice to the other party of the 22
termination notice being filed. 23
Division 4--Filing and approving QWAs and ancillary documents 24
QWAs and ancillary documents 25
Filing
81.(1) A QWA or ancillary document ("document") may be filed with 26
the registrar or employment advocate. 27
58 Section 75 (Matters to be included in QWA)
s 82 83 s 82
Workplace Relations
(2) If the registrar or employment advocate is satisfied that the filing 1
requirements for the document have been met, the registrar or employment 2
advocate must issue a filing receipt to the person who filed it. 3
(3) For a QWA, the registrar or employment advocate may issue a filing 4
receipt only if it is filed within 14 days after the QWA date. 5
(4) If the document is filed with the employment advocate, the 6
employment advocate must immediately give it to the registrar. 7
(5) The registrar must keep a QWA or ancillary document in a way that 8
maintains the confidentiality of its contents. 9
requirements 10
Filing
82.(1) The filing requirements for a QWA are-- 11
(a) the QWA must be signed and dated by each of the parties, and the 12
signatures must be witnessed; and 13
(b) the QWA must be accompanied by a declaration by the employer, 14
declaring-- 15
(i) the QWA complies with section 75;59 and 16
(ii) before the employee signed the QWA, the employer gave 17
the employee a copy of an information statement prepared 18
by the employment advocate. 19
(2) The information statement prepared by the employment advocate for 20
subsection (1) must include information about the following matters, but 21
may include other information-- 22
(a) entitlements under this Act; 23
(b) occupational health and safety law; 24
(c) services provided by the employment advocate; 25
(d) bargaining agents. 26
(3) The filing requirements for an amendment agreement are-- 27
(a) the agreement must be signed and dated by each of the parties, 28
59 Section 75 (Matters to be included in QWA)
s 83 84 s 84
Workplace Relations
and the signatures must be witnessed; and 1
(b) the agreement must be accompanied by a declaration by the 2
employer, declaring the QWA, as amended, complies with 3
section 75. 4
(4) The filing requirement for an extension agreement is the agreement 5
must be signed and dated by each of the parties, and the signatures must be 6
witnessed. 7
(5) The filing requirement for a termination agreement is the agreement 8
must be signed and dated by each of the parties, and the signatures must be 9
witnessed. 10
(6) The filing requirement for a termination notice is the notice must be 11
signed and dated by the party filing the notice, and the signature must be 12
witnessed. 13
(7) The employer must provide any other information required under a 14
regulation. 15
declaration must be accurate 16
Employer's
83. An employer must not, in a declaration filed for this part, make a 17
statement that the employer knows, or ought reasonably to know, is false or 18
misleading. 19
5--Approving QWAs and ancillary documents 20
Division
approval requirements for QWA and ancillary documents 21
Additional
84.(1) The additional approval requirements for a QWA are-- 22
(a) the QWA complies with section 75;60 and 23
(b) the employee received a copy of the QWA at least the required 24
number of days before signing the QWA; and 25
(c) the employer explained the effect of the QWA to the employee as 26
soon as practicable after the employee first received a copy of it; 27
60 Section 75 (Matters to be included in QWA)
s 84 85 s 84
Workplace Relations
and 1
(d) the employee genuinely consented to making the QWA. 2
(2) The additional approval requirements for an amendment agreement 3
are-- 4
(a) the QWA, as amended, complies with section 75; and 5
(b) the employee received a copy of the amendment agreement at 6
least 14 days before signing the amendment agreement; and 7
(c) the employer explained the effect of the amendment agreement to 8
the employee as soon as practicable after the employee first 9
received a copy of it; and 10
(d) the employee genuinely consented to making the amendment 11
agreement. 12
(3) The explanation of the effect of the QWA or amendment agreement 13
mentioned in subsection (1) or (2) must have been done in a way that was 14
appropriate, having regard to the employee's particular circumstances and 15
needs. 16
17
Example of employees with particular circumstances and needs--
18
1. Women
19
2. Persons from a non-English-speaking background
20
3. Young persons
(4) The additional approval requirement for an extension agreement is 21
that the employee genuinely consented to making the extension agreement. 22
(5) The additional approval requirement for a termination agreement is 23
that the employee genuinely consented to making the termination 24
agreement. 25
(6) In subsection (1)-- 26
"required number of days" means-- 27
(a) for a new employee--5 days; or 28
(b) for an existing employee--14 days. 29
s 85 86 s 86
Workplace Relations
pproving QWA 1
A
85.(1) An enterprise commissioner must approve a QWA for which a 2
filing receipt has been issued if the enterprise commissioner is satisfied-- 3
(a) the QWA passes the no-disadvantage test; and 4
(b) the QWA meets the additional approval requirements. 5
(2) If the enterprise commissioner has concerns about whether the QWA 6
passes the no-disadvantage test, but the concerns are resolved by-- 7
(a) a written undertaking given by the employer and accepted by the 8
enterprise commissioner; or 9
(b) other action by the parties; 10
the enterprise commissioner must approve the QWA. 11
(3) If the enterprise commissioner-- 12
(a) is still not satisfied the QWA passes the no-disadvantage test; but 13
(b) is satisfied that approving the QWA is not contrary to the public 14
interest; 15
the enterprise commissioner must approve the QWA. 16
(4) If the enterprise commissioner is not satisfied the QWA meets the 17
additional approval requirements, the enterprise commissioner must refuse 18
to approve the QWA. 19
amendment agreement 20
Approving
86.(1) An enterprise commissioner must approve an amendment 21
agreement for which a filing receipt has been issued if the enterprise 22
commissioner is satisfied-- 23
(a) the QWA, as amended, passes the no-disadvantage test; and 24
(b) the agreement meets the additional approval requirements. 25
(2) If the enterprise commissioner has concerns about whether the 26
QWA, as amended, passes the no-disadvantage test, but the concerns are 27
resolved by-- 28
(a) a written undertaking given by the employer and accepted by the 29
enterprise commissioner; or 30
s 87 87 s 88
Workplace Relations
(b) other action by the parties; 1
the enterprise commissioner must approve the amendment agreement. 2
(3) If the enterprise commissioner-- 3
(a) is still not satisfied the QWA passes the no-disadvantage test; but 4
(b) is satisfied that approving the QWA is not contrary to the public 5
interest; 6
the enterprise commissioner must approve the QWA. 7
(4) If the enterprise commissioner is not satisfied the amendment 8
agreement meets the additional approval requirements, the enterprise 9
commissioner must refuse to approve the amendment agreement. 10
other ancillary documents 11
Approving
87.(1) This section applies to the following ancillary documents-- 12
(a) an extension agreement; 13
(b) a termination agreement; 14
(c) a termination notice. 15
(2) An enterprise commissioner may approve the ancillary document 16
only if satisfied the ancillary document meets the additional approval 17
requirements for the document. 18
commissioner must issue approval or refusal notice 19
Enterprise
88.(1) If an enterprise commissioner approves a QWA or ancillary 20
document, the enterprise commissioner must issue an approval notice to the 21
employer. 22
(2) If the enterprise commissioner refuses to approve a QWA or 23
ancillary document, the enterprise commissioner must issue a refusal notice 24
to the employer. 25
(3) In each approval or refusal notice, the enterprise commissioner must 26
identify the relevant or designated award that applies to the QWA. 27
s 89 88 s 92
Workplace Relations
taken to be included in QWAs 1
Undertakings
89. An undertaking accepted by an enterprise commissioner under this 2
division is taken to be included in the QWA. 3
commissioner to issue copies of approved QWAs and 4
Enterprise
ancillary documents 5
90. After a QWA or ancillary document is approved by an enterprise 6
commissioner, the enterprise commissioner must issue to the employer a 7
copy of the QWA or ancillary document, as approved. 8
Division 6--Effect of a QWA 9
of QWA on awards and agreements 10
Effect
91.(1) A QWA, during its period of operation, operates to the exclusion 11
of an award that would otherwise apply to the employee's employment. 12
(2) A QWA does not operate to the exclusion of an exceptional matters 13
order, but prevails over an exceptional matters order to the extent of any 14
inconsistency. 15
(3) The relationship between a QWA and a certified agreement is as 16
follows-- 17
(a) a certified agreement that starts to operate after the QWA's 18
nominal expiry date prevails over the QWA to the extent of any 19
inconsistency; 20
(b) otherwise--the QWA operates to the exclusion of a certified 21
agreement that would otherwise apply to the employee's 22
employment. 23
binds employer's successor 24
QWA
92.(1) This section applies if-- 25
(a) an employer is a party to a QWA; and 26
(b) at a later time a new employer becomes the successor of the 27
whole or part of the business concerned. 28
s 93 89 s 96
Workplace Relations
(2) From the later time-- 1
(a) the new employer replaces the employer as a party to the QWA; 2
and 3
(b) the previous employer stops being a party to the QWA, to the 4
extent it relates to the whole or part of the business; and 5
(c) a reference in this part to the employer is a reference to the new 6
employer, and ceases to refer to the previous employer, to the 7
extent the context relates to the whole or part of the business. 8
(3) In this section-- 9
"successor" includes assignee and transmittee. 10
must not contravene QWA 11
Parties
93. A party to a QWA must not contravene the QWA. 12
for agreements 13
Conciliation
94. An enterprise commissioner has the conciliation powers for a matter 14
arising under this part that a commissioner would have under chapter 6 61 if 15
that chapter applied to conciliation of the matters instead of industrial 16
disputes. 17
action by party to QWA 18
Industrial
95. During the period of operation of a QWA before its nominal expiry 19
date, a party to the QWA must not engage in industrial action in relation to 20
the employment to which the QWA relates. 21
Division 7--Enforcement and remedies 22
for contravening this part 23
Penalties
96.(1) A magistrate may make an order imposing a penalty on a person 24
61 Chapter 6 (Industrial disputes)
s 97 90 s 98
Workplace Relations
who contravenes a penalty provision. 1
(2) The penalty can not be more than-- 2
(a) for a corporation--135 penalty units; or 3
(b) otherwise--27 penalty units. 4
(3) An application for an order relating to a QWA or ancillary document 5
may be made by-- 6
(a) a party to the QWA or ancillary document; or 7
(b) the employment advocate. 8
(4) In this section-- 9
"penalty provision" means section 78(3) or (4), 83, 93, 95, 103(1), 10
104(1), 105(1) or (2) or 106(1) or (2).62 11
for contravention of QWA 12
Damages
97.(1) A party to a QWA who suffers loss or damage because of a 13
contravention of the QWA by the other party may recover the amount of the 14
loss or damage in an Industrial Magistrates Court. 15
(2) The action must be brought within 6 years after the date on which the 16
cause of action arose. 17
to new employee for shortfall in entitlements 18
Compensation
98.(1) If a QWA for a new employee stops operating because of the 19
issue of a refusal notice and the amount worked out under paragraph (a) is 20
less than the amount worked out under paragraph (b), the employee is 21
62 Section 78 (Bargaining agents)
Section 83 (Employer's declaration must be accurate)
Section 93 (Parties must not contravene QWA)
Section 95 (Industrial action by party to QWA)
Section 103 (Employer not to dismiss etc. an employee for taking QWA
industrial action)
Section 104 (Hindering QWA negotiations)
Section 105 (Persons must not apply duress or make false statements in
connection with QWA etc.)
Section 106 (Employer must give copy of documents to employee)
s 99 91 s 100
Workplace Relations
entitled to recover the shortfall from the employer in an Industrial 1
Magistrates Court-- 2
(a) the total value of the entitlements to which the employee became 3
entitled under the QWA for the period while it was in operation; 4
(b) the total value of the entitlements to which the employee would 5
have been entitled for that period under this Act, if the QWA had 6
not been made, in relation to the employment to which the QWA 7
relates. 8
(2) If a QWA that has been approved for a new employee includes an 9
undertaking by the employer under section 8563 and the amount worked out 10
under paragraph (a) is less than the amount worked out under paragraph (b), 11
the employee is entitled to recover the shortfall from the employer in an 12
Industrial Magistrates Court-- 13
(a) the total value of the entitlements to which the employee became 14
entitled under the QWA for the period before it was approved; 15
(b) the total value of the entitlements to which the employee would 16
have been entitled for that period if the QWA as filed, had 17
included the employer's undertaking. 18
njunctions 19
I
99. An enterprise commissioner, on application by a party to a QWA, 20
may grant an injunction requiring a person not to contravene, or to stop 21
contravening, this part. 22
8--Limited immunity for industrial action 23
Division
of expressions 24
Meaning
100.(1) In this division-- 25
"QWA industrial action" means-- 26
(a) a strike by an employee to compel or induce the employer-- 27
63 Section 85 (Approving QWA)
s 101 92 s 102
Workplace Relations
(i) to make a QWA, on particular terms, with the employee; or 1
(ii) to make QWAs, on particular terms, with the employee and 2
other employees; or 3
(b) an employer locking out an employee to compel or induce the 4
employee to make a QWA, on particular terms, with the 5
employer. 6
(2) In this division, a reference to taking action includes a reference to-- 7
(a) omitting to do something; or 8
(b) bringing about a circumstance. 9
immunity conferred 10
Limited
101.(1) No action lies under any law for QWA industrial action unless 11
the action has involved or is likely to involve-- 12
(a) personal injury; or 13
(b) wilful or reckless destruction of, or damage to, property; or 14
(c) the unlawful taking, keeping or use of property. 15
(2) Subsection (1) does not prevent an action for defamation being 16
brought in relation to anything that happened during the industrial action. 17
(3) If an employer locks out an employee, the employer may refuse to 18
pay remuneration to the employee for the period of the lockout. 19
(4) An employer can not lock out an employee unless the continuity of 20
the employee's employment, for the purposes prescribed under a regulation, 21
is not affected by the lockout. 22
(5) In this section-- 23
"law" means a written or unwritten law, but does not include the State 24
Transport Act 1938. 25
conditional on giving notice 26
Immunity
102. The immunity conferred by section 10164 for QWA industrial action 27
64 Section 101 (Limited immunity conferred)
s 103 93 s 103
Workplace Relations
does not apply unless at least 3 working days notice of the intention to take 1
the action was given to the other party. 2
not to dismiss etc. an employee for taking QWA industrial 3
Employer
action 4
103.(1) An employer must not-- 5
(a) dismiss an employee, injure an employee in his or her 6
employment or change an employee's position to the employee's 7
prejudice; or 8
(b) threaten to dismiss an employee, injure an employee in his or her 9
employment or change an employee's position to the employee's 10
prejudice; 11
wholly or partly because the employee is proposing to engage, is engaging 12
or has engaged, in QWA industrial action after giving notice under 13
section 102. 14
(2) Subsection (1) does not apply to any of the following actions taken by 15
the employer-- 16
(a) standing-down the employee; 17
(b) refusing to pay the employee if, under the common law, the 18
employer is permitted to do so because the employee has not 19
performed work as directed; 20
(c) action of the employer that is itself QWA industrial action to 21
which section 10165 applies. 22
(3) In a proceeding against an employer under section 9666 for an alleged 23
contravention of subsection (1), it is to be presumed, unless the employer 24
proves otherwise, that the alleged conduct of the employer was carried out 25
wholly or partly because the employee was proposing to engage, was 26
engaging or had engaged, in QWA industrial action. 27
65 Section 101 (Limited immunity conferred)
66 Section 96 (Penalties for contravening this part)
s 104 94 s 106
Workplace Relations
Division 9--General 1
QWA negotiations 2
Hindering
104.(1) A person who is not a party to negotiations for a QWA must not 3
use threats or intimidation with the intention of hindering the negotiations or 4
the making of the QWA. 5
(2) This section does not apply to conduct by or for an employee 6
organisation for the purpose of negotiating a certified agreement, if the 7
conduct is authorised by another provision of this Act. 8
(3) In this section-- 9
"party to negotiations" includes a bargaining agent. 10
must not apply duress or make false statements in connection 11
Persons
with QWA etc. 12
105.(1) A person must not apply duress to an employer or employee in 13
connection with a QWA or ancillary document. 14
(2) A person must not knowingly make a false or misleading statement 15
to someone else with the intention of persuading the other person to make, 16
or not to make, a QWA or ancillary document. 17
must give copy of documents to employee 18
Employer
106.(1) As soon as practicable after receiving any of the following 19
documents from an enterprise commissioner or the registrar or employment 20
advocate, the employer must give a copy of it to the employee-- 21
(a) a filing receipt; 22
(b) an approval notice or refusal notice; 23
(c) a QWA or ancillary document, as approved. 24
(2) The employer must give the employee any other document prescribed 25
under a regulation, within the period required under the regulation. 26
s 107 95 s 109
Workplace Relations
not permitted 1
Intervention
107. A person other than-- 2
(a) a party to a QWA; or 3
(b) a party's bargaining agent; or 4
(c) the Minister; 5
must not be allowed to make submissions, or be heard, in relation to the 6
filing, approval, amendment or termination of a QWA. 7
to be in private 8
Hearings
108. A hearing by an enterprise commissioner for this part must be held 9
in private. 10
of QWA parties not to be disclosed 11
Identity
109.(1) A person (the "entrusted person") must not disclose protected 12
information that the entrusted person knows, or has reasonable grounds to 13
believe, will identify another person (the "QWA party") as being, or 14
having been, a party to a QWA. 15
Maximum penalty--6 months imprisonment. 16
(2) Subsection (1) does not apply if the disclosure is-- 17
(a) made by the entrusted person in the course of performing official 18
duties as an officer of the court, commission or department; or 19
(b) authorised under a regulation; or 20
(c) required or permitted by another Act; or 21
(d) authorised in writing by the QWA party. 22
(3) For deciding the burden of proof in a proceeding for an offence 23
against subsection (1), the exceptions in subsection (2) are taken to be part 24
of the description of the offence. 25
(4) In this section-- 26
"protected information" means information that was acquired by the 27
entrusted person-- 28
s 110 96 s 113
Workplace Relations
(a) in the course of performing official duties as an officer of the 1
court, commission or department; or 2
(b) from an officer of the court, commission or department who 3
disclosed the information as authorised under a regulation. 4
commissioner not to publish QWA decision or 5
Enterprise
interpretation 6
110. An enterprise commissioner must not publish a decision or 7
interpretation about a QWA or ancillary document, in a way that discloses 8
the identity of either party to the QWA or document. 9
and advice about development in making QWAs 10
Reports
111.(1) The chief executive, on the Minister's request, must prepare and 11
give to the Minister a report about developments in the State in bargaining 12
for the making of QWAs. 13
(2) To enable the chief executive to prepare the report and generally to 14
advise the Minister, the registrar must allow access to approved QWAs and 15
ancillary documents to-- 16
(a) the chief executive; or 17
(b) the chief executive's agent. 18
(3) The report must not identify either of the parties to a QWA, except 19
with the consent of both parties. 20
of a QWA 21
Interpretation
112. An enterprise commissioner may give an interpretation of a QWA 22
on application by-- 23
(a) a party to it; or 24
(b) the employment advocate. 25
26
Evidence
113.(1) The registrar may give a certified copy of an approved QWA or 27
s 114 97 s 115
Workplace Relations
ancillary document to a person who is or was a party to the QWA or 1
ancillary document. 2
(2) The registrar may issue a certificate stating-- 3
(a) specified QWAs or ancillary documents are the only QWAs or 4
ancillary documents that were filed, before a specified date, in 5
relation to a specified employer and employee; or 6
(b) a copy of a specified approved QWA or ancillary document was 7
issued on a specified day; or 8
(c) a filing receipt, approval notice or refusal notice was issued for a 9
specified QWA or ancillary document on a specified day. 10
(3) The certificate may be given only to a person who is or was a party to 11
each of the documents to which the certificate relates. 12
(4) In all courts and a proceeding-- 13
(a) a certified copy of an approved QWA or ancillary document is 14
evidence of the QWA or ancillary document; and 15
(b) a certificate issued by the registrar under subsection (2) is 16
evidence of the matters stated in the certificate. 17
(5) A document that purports to be a certified copy, or certificate, 18
mentioned in subsection (4) is taken to be the copy or certificate, unless the 19
contrary is proved. 20
for corporation 21
Signature
114. A QWA or ancillary document may be signed for a corporation by 22
a properly authorised officer of the corporation and need not be made under 23
the corporation's seal. 24
ART 3--NO-DISADVANTAGE TEST 25
P
for pt 3 26
Definitions
115. In this part-- 27
s 115 98 s 115
Workplace Relations
"agreement" means-- 1
(a) a certified agreement; or 2
(b) a QWA. 3
"approved apprenticeship" means an apprenticeship approved by an 4
approving authority for section 119.67 5
"approved traineeship" means a traineeship approved by an approving 6
authority for section 118,68 other than-- 7
(a) a traineeship under the Training Wage Award--State; or 8
(b) a Career Start traineeship; or 9
(c) an Australian Traineeship System traineeship; or 10
(d) a National Training Wage traineeship. 11
"approving authority" means the Vocational Education, Training and 12
Employment Commission established under the Vocational 13
Education, Training and Employment Act 1991. 14
"award"-- 15
(a) includes an award under the Commonwealth Act, part VIE; but 16
(b) does not include an exceptional matters order. 17
"designated award", in relation to a person to whom an agreement will 18
apply, means an award that the commission under section 120,69 or an 19
enterprise commissioner under section 121,70 has decided is 20
appropriate for deciding whether a certified agreement or QWA passes 21
the no-disadvantage test. 22
"initial day" means-- 23
(a) for a QWA--the day on which it was approved; or 24
(b) for a certified agreement--the day on which it was certified. 25
"relevant award", in relation to a person to whom an agreement will 26
67 Section 119 (Special case--employee eligible for supported wage system)
68 Section 118 (Special case--employee undertaking approved traineeship)
69 Section 120 (Determination of designated awards for certified agreement)
70 Section 121 (Determination of designated awards for QWA)
s 116 99 s 116
Workplace Relations
apply, means an award-- 1
(a) regulating any employment condition of persons engaged in the 2
same kind of work as that of persons under the agreement; and 3
(b) that, immediately before the initial day of the agreement, binds the 4
person's employer. 5
does an agreement pass the no-disadvantage test 6
When
116.(1) An agreement passes the no-disadvantage test if it does not 7
disadvantage employees in relation to their employment conditions. 8
(2) Subject to sections 117 to 119,71 an agreement disadvantages 9
employees in relation to their employment conditions only if-- 10
(a) for a certified agreement--its certification would result, on 11
balance, in a reduction in the employees' overall employment 12
conditions-- 13
(i) under a relevant award or designated award; and 14
(ii) under any other law of the Commonwealth or a State that a 15
commissioner considers relevant; or 16
(b) for a QWA, when there is a certified agreement with a QWA 17
provision--its approval would result, on balance, in a reduction in 18
the employee's overall employment conditions-- 19
(i) under the relevant or designated award; and 20
(ii) under any other law of the Commonwealth or a State that an 21
enterprise commissioner considers relevant; or 22
(c) for a QWA, when there is a certified agreement without a QWA 23
provision--its approval would result, on balance, in a reduction in 24
the employee's overall employment conditions-- 25
(i) under the certified agreement; and 26
(ii) under any other law of the Commonwealth or a State that an 27
71 Section 117 (Special case--employee eligible for supported wage system)
Section 118 (Special case--employee undertaking approved traineeship)
Section 119 (Special case--employee undertaking approved apprenticeship)
s 117 100 s 118
Workplace Relations
enterprise commissioner considers relevant; or 1
(d) for a QWA, when there is no certified agreement--its approval 2
would result, on balance, in a reduction in the employee's overall 3
employment conditions-- 4
(i) under a relevant award or designated award; and 5
(ii) under any other law of the Commonwealth or a State that an 6
enterprise commissioner considers relevant. 7
(3) In this section-- 8
"certified agreement" means a certified agreement that, immediately 9
before the initial day of the QWA, binds the employer. 10
"QWA provision" of a certified agreement means a provision that 11
expressly allows a subsequent QWA-- 12
(a) to operate to the exclusion of the certified agreement; or 13
(b) to prevail over the certified agreement to the extent of any 14
inconsistency. 15
case--employee eligible for supported wage system 16
Special
117.(1) Subsection (2) applies if an agreement provides for the payment 17
of wages to an employee who is eligible for the supported wage system at a 18
rate not less than the rate set in accordance with that system for the 19
employee. 20
(2) The approval or certification of the agreement is not to be taken to 21
result in a reduction of the employee's wages. 22
case--employee undertaking approved traineeship 23
Special
118.(1) Subsection (2) applies if an agreement provides for the payment 24
of wages to an employee undertaking an approved traineeship at a rate that 25
is not less than the appropriate percentage of the rate (the "benchmark 26
rate") that would be applicable to the employee under the relevant award or 27
designated award if-- 28
(a) that award applied to the employee; and 29
(b) the employee were not undertaking the traineeship. 30
s 119 101 s 119
Workplace Relations
(2) The approval or certification of the agreement is not to be taken to 1
result in a reduction of the employee's wages. 2
(3) For subsection (1), the appropriate percentage of the benchmark rate 3
is the percentage of that rate determined in writing by the approving 4
authority having regard to the reduction in productive time of an employee 5
undertaking the training due to time spent in training. 6
(4) If the agreement adopts, as the qualification for a wage level, a 7
criterion determined by the approving authority ("determined criterion") 8
instead of the criterion applying under the relevant award or designated 9
award ("award criterion"), the award is taken, for this section, to have 10
effect as if the determined criterion were substituted for the award criterion. 11
case--employee undertaking approved apprenticeship 12
Special
119.(1) This section applies if-- 13
(a) an agreement provides for the payment of wages to an employee 14
undertaking an approved apprenticeship in a particular trade, 15
occupation or kind of work; and 16
(b) there is a relevant award, designated award or order regulating the 17
payment of wages to employees undertaking an apprenticeship (a 18
"benchmark apprenticeship") in the same or a similar trade, 19
occupation or kind of work. 20
(2) The approval or certification of the agreement is to be taken to result 21
in a reduction of the employee's wages only if the agreement provides for 22
the payment of wages to employees undertaking the approved 23
apprenticeship at a rate that is less than the rate applicable under the relevant 24
award, designated award or order to employees undertaking the benchmark 25
apprenticeship adjusted (if necessary) under subsection (3). 26
(3) For subsection (2), the rate applicable to an employee undertaking the 27
benchmark apprenticeship is to be adjusted to take into account the 28
proportionate difference, as determined by the approving authority, between 29
the productive time of an employee under the approved apprenticeship and 30
the productive time of an employee under the benchmark apprenticeship. 31
(4) If the agreement adopts, as the qualification for a wage level, a 32
criterion determined by the approving authority ("determined criterion") 33
instead of the criterion applying under the relevant award, designated award 34
s 120 102 s 121
Workplace Relations
or order ("award criterion"), the award is taken, for this section, to have 1
effect as if the determined criterion were substituted for the award criterion. 2
of designated awards for certified agreement 3
Determination
120.(1) This section applies if-- 4
(a) an employer or organisation of employees proposes to make a 5
certified agreement; and 6
(b) there is no relevant award in relation to some or all of the persons 7
to whom the agreement will apply. 8
(2) The employer or organisation may apply to the commission for a 9
determination under subsection (3). 10
(3) On application, the commission must determine that an award 11
(regulating employment conditions of employees engaged in a similar kind 12
of work as the person under the agreement) is appropriate for deciding 13
whether the agreement passes the no-disadvantage test. 14
(4) The commission must inform the employer or organisation in writing 15
of its determination. 16
of designated awards for QWA 17
Determination
121.(1) This section applies if-- 18
(a) an employer proposes to make a QWA with a person; and 19
(b) there is no relevant award for the person. 20
(2) The employer must apply to an enterprise commissioner for a 21
determination under subsection (3). 22
(3) On application, the enterprise commissioner must determine that an 23
award (regulating employment conditions of employees engaged in a 24
similar kind of work as the person under the QWA) is appropriate for 25
deciding whether the QWA passes the no-disadvantage test. 26
(4) The enterprise commissioner must inform the employer in writing of 27
the enterprise commissioner's determination. 28
s 122 103 s 123
Workplace Relations
HAPTER 3--AWARDS 1
C
PART 1--OBJECTS 2
of ch 3 3
Objects
122. The objects of this chapter are to ensure-- 4
(a) wages and employment conditions are protected by a system of 5
enforceable awards established and maintained by the 6
commission; and 7
(b) awards act as a safety net of fair minimum wages and 8
employment conditions; and 9
(c) awards are simplified and suited to the efficient performance of 10
work according to the needs of particular workplaces or 11
enterprises; and 12
(d) the commission's functions and powers in relation to making and 13
amending awards are performed and exercised in a way that 14
encourages the making of agreements between employers and 15
employees at the workplace or enterprise level. 16
ART 2--COMMISSION'S FUNCTIONS 17
P
GENERALLY 18
of commission's functions under this chapter 19
Performance
123.(1) The commission must perform its functions under this chapter in 20
a way that furthers the objects of the Act and, in particular, the objects of 21
this chapter. 22
(2) In performing the functions, the commission must ensure a safety net 23
of fair minimum wages and employment conditions is established, having 24
regard to-- 25
(a) the need to provide fair minimum standards for employees in the 26
s 124 104 s 124
Workplace Relations
context of living standards generally prevailing in the community; 1
and 2
(b) economic factors, including levels of productivity and inflation, 3
and the desirability of attaining a high level of employment; and 4
(c) when adjusting the safety net, the needs of the low paid. 5
(3) In performing the functions, the commission must have regard to-- 6
(a) the need for changes to wage relativities between awards to be 7
based on skill, responsibility and the conditions under which 8
work is performed; and 9
(b) the need to support training arrangements through appropriate 10
wage provisions for apprentices and trainees; and 11
(c) the need to provide a supported wage system for people with 12
disabilities; and 13
(d) the need to apply the principle of equal remuneration for work of 14
equal value without discrimination based on sex; and 15
(e) the need to prevent and eliminate discrimination. 16
(4) Changes necessary to keep wages and employment conditions at a 17
relevant level may be made on condition that relevant parties comply with 18
principles established by the commission. 19
automatic flow-on of certain agreements 20
No
124. The commission can not include terms in an award that are based on 21
a certified agreement, unless it is satisfied that including the terms would 22
not-- 23
(a) be inconsistent with principles established by a full bench that 24
apply for deciding wages and employment conditions; and 25
(b) be otherwise contrary to the public interest. 26
s 125 105 s 126
Workplace Relations
ART 3--FORM AND APPLICATION 1
P
effect and term of award 2
Form,
125.(1) An award-- 3
(a) must be in a form decided by the commission; and 4
(b) takes effect and has the force of law throughout the State and 5
without limit of time, except as otherwise prescribed by 6
subsection (2). 7
(2) An award may state that it is in force-- 8
(a) in a stated locality; or 9
(b) for a stated period; or 10
(c) in relation to 1 or more stated employers; or 11
(d) in relation to 1 or more named establishments or operations of 12
1 or more stated employers. 13
(3) An award stated to be limited in a way mentioned in subsection (2) 14
has effect only to the extent that it provides. 15
ersons bound by award 16
P
126.(1) An award binds-- 17
(a) all parties to the industrial cause in which the award is made who 18
appear or are represented before the commission; and 19
(b) all parties who have been called to appear before the commission 20
as parties to the industrial cause in which the award is made, 21
whether or not they appear or are represented, unless the 22
commission considers they were improperly called as parties; and 23
(c) all organisations concerned with the calling to which the award 24
applies; and 25
(d) all members of organisations bound by the award; and 26
(e) all employers and employees, in a locality where the award 27
applies, who are engaged in the calling to which the award 28
applies; and 29
s 127 106 s 127
Workplace Relations
(f) if the award purports to apply only to a particular employer or 1
employers, or named establishments or operations of a particular 2
employer or employers--all employees of the employer or the 3
employers or of the employer or employers in the named 4
establishments or operations. 5
(2) This section applies subject to-- 6
(a) all exemptions ordered by the commission under section 136;72 7
and 8
(b) section 352 and Industrial Organisations Act 1996, section 192.73 9
PART 4--COMMISSION'S POWERS 10
amending and repealing awards 11
Making,
127.(1) The commission may make, amend or repeal an award. 12
(2) However, in doing so the commission is subject to section 128. 13
(3) The commission may act under subsection (1) of its own initiative or 14
on application by-- 15
(a) the Minister; or 16
(b) an organisation; or 17
(c) an employer; or 18
(d) a person who satisfies the commission that the person is not an 19
officer of, or acting for, an eligible association. 20
(4) The commission may refrain from hearing, further hearing, or 21
deciding an application to amend an award while it-- 22
(a) considers that, in all the circumstances, the parties concerned 23
should try to negotiate a certified agreement or QWA to deal with 24
72 Section 136 (Exemptions)
73 Section 352 (Remedies on show cause) and Industrial Organisations Act 1996,
section 192 (Consequences of cancellation)
s 128 107 s 128
Workplace Relations
the subject matter of the proposed amendment; and 1
(b) is satisfied there is a reasonable prospect of the parties making 2
either of the agreements. 3
award matters 4
Allowable
128.(1) In making or amending an award, the commission may only deal 5
with the following matters ("allowable award matters")-- 6
(a) classifications of employees and skill-based career paths; 7
(b) ordinary time hours of work and the times within which they are 8
performed, rest breaks, notice periods and variations to working 9
hours; 10
(c) wage rates generally (including hourly rates and annual salaries), 11
wage rates for juniors, apprentices or trainees, and wage rates for 12
employees under the supported wage system; 13
(d) piece rates, tallies and bonuses; 14
(e) annual leave and leave loadings; 15
(f) long service leave; 16
(g) personal and carer's leave, including sick leave, family leave, 17
bereavement leave, compassionate leave, cultural leave and other 18
similar forms of leave; 19
(h) parental leave and adoption leave; 20
(i) compensation for public holidays; 21
(j) allowances; 22
(k) loadings for working overtime or for casual or shift work; 23
(l) penalty rates; 24
(m) redundancy pay; 25
(n) notice of termination; 26
(o) stand-down provisions; 27
(p) dispute resolution procedures; 28
(q) jury service; 29
s 128 108 s 128
Workplace Relations
(r) type of employment, including full-time employment, casual 1
employment, regular part-time employment and shift work; 2
(s) occupational superannuation; 3
(t) wages and conditions for outworkers, but only to the extent 4
necessary to ensure that their overall wages and employment 5
conditions are fair and reasonable in comparison with the wages 6
and employment conditions specified in a relevant award or 7
awards for employees who perform the same kind of work at an 8
employer's place of business. 9
(2) The commission may make an award for an allowable award matter 10
that-- 11
(a) revokes or amends a decision; or 12
(b) abrogates or amends labour contracts made before or after the 13
commencement of this Act, subject to the conditions and 14
exemptions the commission considers appropriate; or 15
(c) gives the retrospective effect the commission considers 16
appropriate, or that is consented to by the parties, to the whole or 17
part of an award, but so that, except with the parties' consent, the 18
retrospective effect is not made to operate before the day when the 19
commission first took cognisance of the matter; or 20
(d) directs a copy of any award be exhibited by the employer in a 21
conspicuous and convenient place on the premises of an employer 22
bound by the award. 23
(3) The commission may include in an award provisions that are-- 24
(a) incidental to the matters in subsection (1); and 25
(b) necessary for the effective operation of the award. 26
(4) This section does not prevent the commission from including a 27
model anti-discrimination clause in an award. 28
(5) In this section-- 29
"outworker" means an employee who, for the employer's business, 30
performs work at private residential premises or at other premises that 31
are not the employer's place of business. 32
s 129 109 s 129
Workplace Relations
on commission's powers for awards 1
Limitation
129.(1) The commission's power to make or amend an award, or to 2
prevent or settle by arbitration an industrial dispute, dealing with an 3
allowable award matter is limited to making a minimum rates award. 4
(2) The commission's power to make or amend an award in relation to 5
matters covered by section 128(1)(r) does not include power-- 6
(a) to limit the number or proportion of employees an employer may 7
employ in a particular kind of employment; or 8
(b) to set maximum or minimum hours of work for regular part-time 9
employees. 10
(3) Subsection (2)(b) does not prevent the commission from including in 11
an award provisions that-- 12
(a) set a minimum number of consecutive hours that an employer 13
may require a regular part-time employee to work; or 14
(b) facilitate a regular pattern in the hours worked by regular part-time 15
employees. 16
(4) The commission does not have power to include terms in an award 17
that require or permit, or have the effect of requiring or permitting, conduct 18
that would contravene the Industrial Organisations Act 1996, part 14.74 19
(5) In fixing wage rates payable to employees in a calling, the 20
commission must fix the rates on the basis that a man and a woman 21
employed by the same employer must receive equal remuneration for work 22
of equal value without any discrimination on the ground of sex. 23
(6) The exercise of the commission's jurisdiction for persons under 24
21 years is subject to the Vocational Education, Training and Employment 25
Act 1991, section 78.75 26
(7) Despite any other provision of this Act, wage rates fixed by the 27
commission for persons under 21 years in a calling who are not within the 28
application of the Vocational Education, Training and Employment Act 29
1991, may be fixed on a progressive scale based on the wage rates payable 30
74 Industrial Organisations Act 1996, part 14 (Freedom of association)
75 Vocational Education, Training and Employment Act 1991, section 78
(Restrictions on employing persons under 21 in an apprenticeship calling)
s 130 110 s 130
Workplace Relations
to employees 21 years or over in the same calling. 1
(8) In making an award that fixes the wage rates, the commission must 2
consider the age and experience of the persons under 21 years. 3
matters orders 4
Exceptional
130.(1) Despite section 128(1),76 the commission may make an order 5
about a matter (the "exceptional matter") if the commission is satisfied-- 6
(a) a party has made a genuine attempt to reach agreement on the 7
exceptional matter; and 8
(b) there is no reasonable prospect of agreement being reached on the 9
exceptional matter by conciliation, or further conciliation, by the 10
commission; and 11
(c) it is appropriate to settle the exceptional matter by arbitration; and 12
(d) the issues involved in the exceptional matter are exceptional 13
issues; and 14
(e) a harsh or unjust outcome may result if the order were not to 15
include the exceptional matter. 16
(2) The commission may make an exceptional matters order only if 17
satisfied that making the order-- 18
(a) is in the public interest; and 19
(b) consistent with the objects of this Act. 20
(3) The commission may make an exceptional matters order that would 21
apply to more than a single business only if satisfied the order is an 22
appropriate way of settling the matter in dispute. 23
(4) An exceptional matters order must be made by a full bench, unless 24
the order relates to a single business within the meaning of section 12.77 25
(5) An exceptional matters order must relate only to a single matter. 26
(6) An exceptional matters order may be enforced as if it were an award. 27
76 Section 128 (Allowable award matters)
77 Section 12 (Single business and single employer)
s 131 111 s 132
Workplace Relations
(7) An exceptional matters order stops being in force 2 years after it is 1
made and can not be extended. 2
(8) Section 12978 applies to the commission as if the order were an 3
award. 4
award matters to be dealt with by full bench 5
Allowable
131.(1) A full bench may establish principles about the making or 6
amending of awards for an allowable award matter. 7
(2) After the principles have been established, the commission's power 8
to make or amend an award is exercisable only by a full bench, unless the 9
award's contents-- 10
(a) give effect to decisions of a full bench made after the 11
commencement of this section; or 12
(b) are consistent with principles established by a full bench after the 13
commencement of this section. 14
rulings 15
General
132.(1) A full bench may make general rulings about an allowable award 16
matter to avoid a multiplication of inquiries into the same matter. 17
(2) Before entering on making the ruling, the full bench must give-- 18
(a) reasonable notice, in the way it considers appropriate, of its 19
intention to make the ruling; and 20
(b) an opportunity to all persons interested in the subject of the 21
proposed general ruling to be heard. 22
(3) A ruling-- 23
(a) must specify a date (the "specified date") on and from which it 24
is to have effect; and 25
(b) has effect as a decision of the full bench on and from the specified 26
date. 27
78 Section 129 (Limitation on commission's powers for awards)
s 133 112 s 133
Workplace Relations
(4) A ruling may exclude from the operation of any of its provisions-- 1
(a) a class of employer or employee; or 2
(b) an award or part of an award. 3
(5) As soon as practicable after making a ruling, the registrar must 4
publish notice of the ruling and the specified date in the industrial gazette. 5
(6) The notice, on and from the specified date, replaces a notice of a 6
ruling on the same subject matter previously published. 7
(7) The ruling notified continues in force until the date immediately 8
before the specified date included in the next ruling on the same subject 9
matter. 10
(8) On a ruling (other than under subsection (4)) taking effect while an 11
award is in force, on and from the specified date-- 12
(a) the award is taken to be amended to accord with the ruling; and 13
(b) the amendment has effect as an award. 14
(9) The registrar, on application under the rules of court, or of the 15
registrar's own initiative, may amend an award taken to be amended under 16
subsection (8) as the registrar considers appropriate, to accord with the 17
ruling. 18
(10) The registrar's action is subject to appeal to the full bench. 19
ART 5--OTHER REQUIREMENTS 20
P
of enterprise flexibility provisions in awards 21
Inclusion
133.(1) This section applies when the commission makes or amends an 22
award. 23
(2) If it considers it appropriate, the commission must include in the 24
award a provision establishing a process for negotiating agreements at the 25
workplace or enterprise level about how the award should be amended to 26
make the workplace or enterprise operate more efficiently according to its 27
particular needs. 28
s 134 113 s 134
Workplace Relations
(3) If an application is made to amend an award to give effect to an 1
agreement made under subsection (2), the commission can not amend the 2
award unless it is satisfied the amendment-- 3
(a) would deal only with allowable award matters; and 4
(b) would result in a minimum rates award; and 5
(c) if it included an amendment to wage rates specified in the 6
award--would provide for minimum wage rates consistent with 7
sections 122 and 123.79 8
(4) An employee organisation may be heard on the application if, and 9
only if, it-- 10
(a) is a party to the award; and 11
(b) has a member whose employment would be regulated by the 12
amendment. 13
(5) The commission must not refuse to amend the award merely because 14
an organisation refuses to agree to the amendment, if the commission is 15
satisfied the refusal is unreasonable. 16
requirements about structure and content etc. of awards and 17
Some
orders 18
134.(1) This section applies if the commission makes-- 19
(a) an award; or 20
(b) an order affecting an award. 21
(2) The commission, if it considers it appropriate, must ensure the award 22
or order does not-- 23
(a) include matters of detail or process that are more appropriately 24
dealt with by agreement at the workplace or enterprise level; or 25
(b) prescribe work practices or procedures that restrict or hinder the 26
efficient performance of work; or 27
(c) contain provisions that have the effect of restricting or hindering 28
79 Sections 122 (Objects of ch 3) and 123 (Performance of commission's functions
under this chapter)
s 135 114 s 135
Workplace Relations
productivity, having regard to fairness to employees. 1
(3) The commission must ensure the award or order-- 2
(a) whenever possible, contains facilitative provisions that allow 3
agreement at the workplace or enterprise level, between 4
employers and employees (including individual employees), on 5
how the award provisions are to apply; and 6
(b) whenever possible, contains provisions enabling the employment 7
of regular part-time employees; and 8
(c) is stated in plain English and is easy to understand in structure 9
and content; and 10
(d) does not contain provisions that are obsolete or need updating; 11
and 12
(e) whenever possible, provides support to training arrangements 13
through appropriate apprentice and trainee wages and a supported 14
wage system for people with disabilities; and 15
(f) does not contain discriminatory provisions. 16
resolution procedures 17
Dispute
135.(1) An award must provide for a dispute resolution procedure. 18
(2) The form of the procedure is to be agreed on by the parties to the 19
award. 20
(3) However, if the parties can not agree, the commission must insert an 21
appropriate procedure in the award. 22
(4) Without limiting subsection (1), in a procedure-- 23
(a) matters to be dealt with must include-- 24
(i) all industrial matters; and 25
(ii) other matters that the parties agree on; and 26
(b) a dispute must be dealt with initially as close to its source as 27
possible, with graduated steps provided for further discussions 28
and resolution at higher levels of authority; and 29
(c) reasonable time limits are to be allowed for discussion at each 30
s 136 115 s 136
Workplace Relations
level of authority; and 1
(d) while a procedure is being followed, normal work must continue, 2
unless there is a genuine health or safety issue; and 3
(e) the state or condition existing before the dispute emerged must 4
continue while a procedure is being followed; and 5
(f) a dispute may be referred, by consent of the parties, to an 6
independent person for resolution; and 7
(g) matters that can not be resolved by the parties to the dispute must 8
be referred to the commission or a magistrate as required by 9
section 239.80 10
(5) In this section-- 11
"dispute" includes grievance. 12
PART 6--EXEMPTIONS 13
14
Exemptions
136.(1) The commission may, of its own initiative or on application by 15
an organisation or employer, by the order by which it makes an award, or 16
by its later order, exempt from the application of the award-- 17
(a) an employer or class of employer, or employee or class of 18
employee, in a locality and in the calling to which the award 19
applies; and 20
(b) a person who is engaged, whether as employer or employee, in 21
the locality and calling, while the award remains in force. 22
(2) While an exemption exists, the award does not bind the employer, 23
employee, class, or person, according to the exemption. 24
80 Section 239 (Notice of industrial dispute)
s 137 116 s 139
Workplace Relations
ART 7--GENERAL 1
P
of awards 2
Enforceability
137. Action can not be commenced to enforce an award until 21 days 3
after the date it is published in the industrial gazette. 4
of appeals on awards 5
Effect
138. The commission must immediately amend an award to give effect 6
to a decision, affecting the award, of-- 7
(a) the court on appeal from a decision of the commission or on a 8
case stated by the commission; or 9
(b) a full bench on appeal from a single commissioner. 10
between awards and contracts 11
Inconsistency
139.(1) To the extent of any inconsistency, an award prevails over a 12
contract of service that is-- 13
(a) in force when the award becomes enforceable; or 14
(b) made while the award continues in force. 15
(2) The contract is to be interpreted, and takes effect, as if it were 16
amended to the extent necessary to make it conform to the award. 17
(3) However, no inconsistency arises merely because the contract 18
provides for employment conditions more favourable to the employee than 19
the award. 20
s 140 117 s 144
Workplace Relations
HAPTER 4--GENERAL EMPLOYMENT 1
C
CONDITIONS 2
PART 1--MINIMUM WAGES 3
of pt 1 4
Object
140. The object of this part is to give effect to the Minimum Wages 5
Convention. 6
of expressions 7
Meaning
141. If an expression used in this part is also used in the Minimum 8
Wages Convention, it has the same meaning as in the Convention. 9
setting minimum wages 10
Orders
142. The commission may make an order setting-- 11
(a) the same minimum wage for all employees in a stated group; or 12
(b) different minimum wages for different categories of employees in 13
a stated group. 14
only on application 15
Orders
143. The commission may make an order under this part only on an 16
application by-- 17
(a) an employee to be covered by the order; or 18
(b) an organisation whose rules entitle it to represent the industrial 19
interests of employees to be covered by the order. 20
commission may make order 21
When
144.(1) The commission must, and may only, make an order if 22
satisfied-- 23
s 144 118 s 144
Workplace Relations
(a) coverage by a system of minimum wages is appropriate, given 1
the employment conditions of the group of employees to be 2
covered by the order; and 3
(b) the order will operate for at least some of the employees in the 4
stated group, having regard to employees ineligible under 5
subsection (3). 6
(2) The order must state which of the group's employees are excluded 7
from its operation because they are ineligible. 8
(3) An employee is ineligible only if-- 9
(a) minimum wages for the employee are set by an industrial 10
instrument; or 11
(b) proceedings have been commenced under chapter 2, parts 1 to 381 12
and chapter 382 for the setting or adjustment of minimum wages 13
for the employee. 14
(4) Before deciding which group an order should cover, and whether it is 15
satisfied under subsection (1)(a), the commission must-- 16
(a) give the following organisations an opportunity to express their 17
views-- 18
(i) an organisation whose rules entitle it to represent the 19
industrial interests of any of the employees concerned; 20
(ii) an organisation whose rules entitle it to represent the 21
industrial interests of employers of the employees; 22
(iii) another organisation representing employers of the 23
employees; and 24
(b) take the views into account. 25
(5) Before making an order, the commission must give each employer of 26
employees in the group to be covered by the order an opportunity, as 27
prescribed under a regulation, to be heard about the making of the order. 28
81 Chapter 2 (Agreements), part 1 (Certified Agreements), part 2 (Queensland
workplace agreements), part 3 (No-disadvantage test)
82 Chapter 3 (Awards)
s 145 119 s 147
Workplace Relations
to be considered when setting minimum wages 1
Matters
145. When setting minimum wages under this part, the commission 2
must consider-- 3
(a) the principles it would apply when setting minimum wages under 4
chapter 3;83 and 5
(b) the needs of workers and their families, taking into account the 6
general level of wages, the cost of living, social security benefits 7
and the relative living standards of other social groups; and 8
(c) economic factors, including, for example, the requirements of 9
economic development, levels of productivity and the desirability 10
of reaching and keeping a high level of employment and a low 11
inflation rate. 12
does not limit other rights 13
Part
146. This part does not limit any right a person or organisation may 14
otherwise have to establish minimum wages. 15
16
Orders
147.(1) This section applies to an order of the commission under this 17
part. 18
(2) An order must be written. 19
(3) An order takes effect from the date of the order or a later stated date. 20
(4) An order is enforceable in the same way as an award. 21
(5) The commission may amend or revoke an order only on application 22
by any of the following persons (whether or not named or described in the 23
order)-- 24
(a) an employer, or representative of an employer, covered by the 25
order; 26
(b) an employee, or representative of an employee, covered by the 27
order. 28
83 Chapter 3 (Awards)
s 148 120 s 151
Workplace Relations
industrial instruments or orders 1
Inconsistent
148. An industrial instrument or commission order that is inconsistent 2
with an order under this part does not apply to the extent the inconsistency 3
detrimentally affects the rights of the employees concerned. 4
ART 2--EQUAL REMUNERATION FOR WORK OF 5
P
EQUAL VALUE 6
of part 7
Object
149. The object of this part is to give effect to-- 8
(a) the Anti-Discrimination Conventions; and 9
(b) the Equal Remuneration Recommendation; and 10
(c) the Discrimination (Employment and Occupation) 11
Recommendation. 12
of expressions 13
Meaning
150.(1) In this part-- 14
"equal remuneration for work of equal value" means equal 15
remuneration for men and women workers for work of equal value. 16
(2) If an expression used in this part is also used in the Equal 17
Remuneration Convention, it has the same meaning as in the Convention. 18
requiring equal remuneration 19
Orders
151.(1) The commission may make any order it considers appropriate to 20
ensure employees covered by the order will receive equal remuneration for 21
work of equal value. 22
(2) An order may provide for an increase in remuneration rates, including 23
minimum rates. 24
s 152 121 s 155
Workplace Relations
only on application 1
Orders
152. The commission may make an order under this part only on 2
application by-- 3
(a) an employee to be covered by the order; or 4
(b) an organisation whose rules entitle it to represent the industrial 5
interests of employees to be covered by the order; or 6
(c) the Anti-Discrimination Commissioner. 7
commission must and may only make order 8
When
153. The commission must, and may only, make an order if-- 9
(a) it is satisfied the employees to be covered by the order do not 10
receive equal remuneration for work of equal value; and 11
(b) the order can reasonably be regarded as appropriate and as giving 12
effect to-- 13
(i) 1 or more of the Anti-Discrimination Conventions; or 14
(ii) the Equal Remuneration Recommendation; or 15
(iii) the Discrimination (Employment and Occupation) 16
Recommendation. 17
or progressive introduction of equal remuneration 18
Immediate
154. The order may introduce equal remuneration for work of equal 19
value-- 20
(a) immediately; or 21
(b) progressively, in specified stages. 22
not to reduce remuneration 23
Employer
155.(1) An employer must not reduce an employee's remuneration 24
because an application or order has been made under this part. 25
(2) If an employer purports to do so, the reduction is of no effect. 26
s 156 122 s 157
Workplace Relations
does not limit other rights 1
Part
156. Subject to section 157, this part does not limit any right a person or 2
organisation may otherwise have to secure equal remuneration for work of 3
equal value. 4
under this part 5
Applications
157.(1) An application can not be made under this part for an order to 6
secure equal remuneration for work of equal value for an employee if a 7
proceeding for an alternative remedy-- 8
(a) to secure the remuneration for the employee; or 9
(b) against unequal remuneration for work of equal value for the 10
employee; 11
has begun under another provision of this Act or under another Act. 12
(2) Subsection (1) does not prevent an application under this part if the 13
proceeding for the alternative remedy has-- 14
(a) been discontinued by the party who started the proceeding; or 15
(b) failed for want of jurisdiction. 16
(3) If an application under this part has been made for an order to secure 17
equal remuneration for work of equal value for an employee, a person is not 18
entitled to take a proceeding for an alternative remedy under a provision or 19
Act mentioned in subsection (1)-- 20
(a) to secure the remuneration for the employee; or 21
(b) against unequal remuneration for work of equal value for the 22
employee. 23
(4) Subsection (3) does not prevent a proceeding being taken for an 24
alternative remedy if the proceeding under this part has-- 25
(a) been discontinued by the party who started the proceeding; or 26
(b) failed for want of jurisdiction. 27
(5) This section applies to an application under the corresponding 28
provisions of the repealed Act. 29
s 158 123 s 159
Workplace Relations
PART 3--PARENTAL LEAVE 1
Division 1--Preliminary 2
of pt 3 3
Object
158. The object of this part is to give effect to the Family Responsibilities 4
Convention. 5
principles 6
Basic
159.(1) Under this part, an employee who gives birth to a child, and her 7
spouse, are entitled to unpaid parental leave totalling 52 weeks to care for the 8
child. 9
(2) However, an employee's entitlement to leave under this part is 10
reduced by the employee's other entitlements to parental leave other than 11
under this part. 12
(3) To obtain parental leave under this part, an employee must satisfy 13
stated requirements about-- 14
(a) length of service; and 15
(b) notice periods; and 16
(c) information and documentation. 17
(4) Except for 1 week at the time of the birth, an employee and the 18
employee's spouse must take parental leave at different times. 19
(5) An employee may take other leave (annual leave for example) in 20
conjunction with parental leave, but this will reduce the amount of parental 21
leave the employee may take. 22
(6) Parental leave may be varied in certain circumstances. 23
(7) In general, if a variation is foreseeable, an employee must give notice 24
of it, but if a variation is not foreseeable notice is not required (for example, 25
when the birth is premature). 26
(8) Cancellation of parental leave by the employer is limited to situations 27
when-- 28
s 160 124 s 160
Workplace Relations
(a) the employee will not become, or ceases to be, the child's primary 1
care-giver; or 2
(b) there has been a mistake in calculating the amount of leave to 3
which the employee is entitled. 4
(9) An employee who takes parental leave is, in most circumstances, 5
entitled to return to the position the employee held before the leave was 6
taken. 7
(10) Parental leave does not break an employee's continuity of service. 8
for pt 3 9
Definitions
160. In this part-- 10
"continuous service"-- 11
(a) means service under an unbroken employment contract other than 12
as a casual or seasonal employee; and 13
(b) includes a period of leave or absence authorised by-- 14
(i) the employer; or 15
(ii) an industrial instrument or order; or 16
(iii) an employment contract; or 17
(iv) this part. 18
"employee" includes a part-time employee, but not a casual or seasonal 19
employee. 20
"law" includes an unwritten law. 21
"long paternity leave" means-- 22
(a) part 3 long paternity leave; or 23
(b) other leave that-- 24
(i) an employee is entitled to, or has been applied for or been 25
granted for the birth of his spouse's child, other than under 26
this part (for example, under an industrial instrument or 27
order); and 28
(ii) is analogous to part 3 long paternity leave, or would be 29
s 160 125 s 160
Workplace Relations
analogous except that-- 1
(A) it is paid leave; or 2
(B) different rules govern eligibility for it; or 3
(C) it can be taken for different periods. 4
"maternity leave" means-- 5
(a) part 3 maternity leave; or 6
(b) other leave that-- 7
(i) an employee is entitled to, or has been applied for or been 8
granted for her pregnancy or her child's birth, other than 9
under this part (for example, under an industrial instrument 10
or order); and 11
(ii) is analogous to part 3 maternity leave, or would be 12
analogous except that-- 13
(A) it is paid leave; or 14
(B) it can begin before the estimated date of birth; or 15
(C) different rules govern eligibility for it; or 16
(D) it can be taken for different periods. 17
"medical certificate" means a certificate signed by a doctor. 18
"parental leave" means maternity leave or paternity leave. 19
"part 3 long paternity leave" see section 173. 20
"part 3 maternity leave" see section 161. 21
"part 3 short paternity leave" see section 173. 22
"paternity leave" means short paternity leave or long paternity leave. 23
"short paternity leave" means-- 24
(a) part 3 short paternity leave; or 25
(b) other leave that-- 26
(i) an employee is entitled to, or has been applied for or been 27
granted for the birth of his spouse's child, other than under 28
this part (for example, under an industrial instrument or 29
s 161 126 s 162
Workplace Relations
order); and 1
(ii) is analogous to part 3 short paternity leave, or would be 2
analogous except that-- 3
(A) it is paid leave; or 4
(B) different rules govern eligibility for it; or 5
(C) it can be taken for different periods. 6
2--Maternity leave 7
Division
to maternity leave 8
Entitlement
161. A pregnant employee is entitled to 1 period of unpaid leave ("part 3 9
maternity leave") for the child's birth and to be the child's primary 10
care-giver. 11
of entitlement to maternity leave 12
Conditions
162.(1) An employer must grant part 3 maternity leave to an employee 13
if-- 14
(a) she notifies the employer of the estimated date of birth at least 15
70 days before the date; and 16
(b) she applies for the leave at least 28 days before the first day of the 17
leave; and 18
(c) the application states the first and last days of the leave; and 19
(d) the first day of the leave is the estimated date of birth or a later 20
day; and 21
(e) she gives with the application a medical certificate that states-- 22
(i) she is pregnant and the estimated date of birth; or 23
(ii) she has given birth to a living child and the date of birth; and 24
(f) she gives with the application a statutory declaration stating-- 25
(i) the first and last days of all the following-- 26
(A) short paternity leave for which her spouse intends to 27
s 162 127 s 162
Workplace Relations
apply, or has applied, for the child's birth; 1
(B) long paternity leave for which her spouse intends to 2
apply, or has applied, for the child's birth; 3
(C) annual or long service leave for which her spouse 4
intends to apply or has applied, instead of or in 5
conjunction with, the paternity leave; and 6
(ii) that she will-- 7
(A) be the child's primary care-giver throughout the 8
maternity leave; and 9
(B) not engage in conduct inconsistent with her 10
employment contract while on maternity leave; and 11
(g) it is reasonable to expect that she will complete, or she had 12
completed, at least 1 year of continuous service with the employer 13
on the day before the estimated date of birth. 14
(2) Subsections (1)(a) and (g) do not apply if-- 15
(a) because the child was premature, or for some other compelling 16
reason, it was not reasonably practicable for the employee to 17
comply with subsection (1)(a); and 18
(b) if it was not reasonably practicable for the employee to notify the 19
employer before the actual date of birth of the estimated date of 20
birth--she notified the employer as soon as reasonably 21
practicable; and 22
(c) otherwise--the medical certificate given under subsection (1)(e) 23
also states the date that, as at the 70th day before the actual date of 24
birth, was the estimated date of birth; and 25
(d) it is reasonable to expect the employee will complete, or the 26
employee had completed, 1 year of continuous service with the 27
employer on the day before the estimated date of birth. 28
(3) Subsection (1)(b) does not apply if-- 29
(a) it was not reasonably practicable for the employee to comply with 30
the paragraph because the child was premature, or for some other 31
compelling reason; and 32
(b) the employee gives the application as soon as reasonably 33
s 163 128 s 163
Workplace Relations
practicable before, on or after the first day of the leave; and 1
(c) if the child is born before the employee gives the application--the 2
first day of the leave is the day of the child's birth or a later day. 3
(4) If subsection (3)(c) applies, subsection (1)(d) does not apply. 4
(5) If, because the child was premature, the first day of the leave is earlier 5
than the estimated date of birth, a reference in this part to 1 year of 6
continuous service means a period of continuous service equal to 1 year less 7
the period-- 8
(a) beginning on the first day of the leave; and 9
(b) ending on the estimated date of birth. 10
(6) When an employee applies for maternity leave (the "substitute 11
leave") to be taken instead of maternity leave for which she has already 12
applied (the "original leave")-- 13
(a) if a document, given under subsection (1)(e) or (f) with the 14
application for the original leave, applies to the application for the 15
substitute leave--the document need not be given with the later 16
application; and 17
(b) if the employer approves the substitute leave--the employer-- 18
(i) must cancel the original leave if it has been approved; or 19
(ii) must not give the original leave if it has not been approved. 20
of maternity leave 21
Period
163.(1) The part 3 maternity leave-- 22
(a) if the child has not been born-- 23
(i) must begin on the later of-- 24
(A) the day stated in the application as the first day of the 25
leave; or 26
(B) the estimated date of birth; and 27
(ii) must not extend beyond the first anniversary of the estimated 28
date of birth; and 29
(b) if the child has been born-- 30
s 164 129 s 164
Workplace Relations
(i) must begin on the later of-- 1
(A) the day stated in the application as the first day of the 2
leave; or 3
(B) the child's date of birth; and 4
(ii) must not extend beyond the child's first birthday; and 5
(c) must not overlap with the spouse's leave (other than short 6
paternity leave) stated in the relevant statutory declaration; and 7
(d) must be for a continuous period equal to the shorter of-- 8
(i) the period applied for; or 9
(ii) the period of entitlement. 10
(2) The period of entitlement is 52 weeks less the total of all the 11
following-- 12
(a) unpaid leave (other than maternity leave) or paid sick leave that 13
the employer has already approved for the employee for the 14
pregnancy; 15
(b) annual or long service leave the employee has applied to take 16
instead of, or in conjunction with, maternity leave for the 17
pregnancy; 18
(c) the spouse's leave stated in the relevant statutory declaration. 19
reduced by other maternity leave available to employee 20
Entitlement
164.(1) This section applies if, had this part not been enacted-- 21
(a) an employee could have applied (for her pregnancy or her child's 22
birth) for maternity leave to which paragraphs (a) and (b) of the 23
definition "maternity leave" in section 160 applies, whether or not 24
she has in fact applied; and 25
(b) if she had applied as required by the rules governing the maternity 26
leave--she would have a legally enforceable right to the leave. 27
(2) If the period of alternative leave is at least as long as the unadjusted 28
period of maternity leave, the employer must not approve maternity leave to 29
the employee under a relevant section. 30
s 165 130 s 165
Workplace Relations
(3) Otherwise, the employer must approve to the employee, instead of 1
the unadjusted period of maternity leave, a period of maternity leave that-- 2
(a) equals the difference between the unadjusted period of maternity 3
leave and the period of alternative leave; and 4
(b) begins immediately after the period of alternative leave if the 5
employer grants it; and 6
(c) otherwise complies with section 163. 7
(4) In this section-- 8
"period of alternative leave" means the leave mentioned in 9
subsection (1)(b). 10
"relevant section" means section 16284 or 163. 11
"unadjusted period of maternity leave" means any part 3 maternity leave 12
that a relevant section would, apart from this section, require the 13
employer to grant to the employee for the child's birth. 14
annual or long service leave instead of, or in conjunction with, 15
Taking
maternity leave 16
165. If an employee applies to take annual or long service leave instead 17
of, or in conjunction with, part 3 maternity leave, the employer must 18
approve the annual or long service leave if-- 19
(a) had this part not been enacted, the employer would have been 20
obliged to grant it; or 21
(b) the total of all the following is not more than 52 weeks-- 22
(i) the annual or long service leave; 23
(ii) annual or long service leave that the employer has already 24
granted the employee instead of, or in conjunction with, the 25
maternity leave; 26
(iii) the maternity leave; 27
(iv) unpaid leave (other than maternity leave) or paid sick leave 28
that the employer has already approved for the employee for 29
84 Section 162 (Conditions of entitlement to maternity leave)
s 166 131 s 167
Workplace Relations
the pregnancy; 1
(v) the spouse's leave under section 162(1)(f)85 specified in the 2
relevant statutory declaration. 3
maternity leave 4
Extending
166.(1) An employee may apply to extend the part 3 maternity leave 5
approved for her. 6
(2) The employer must approve the application if-- 7
(a) the application is given to the employer at least 14 days before the 8
last day of the leave; and 9
(b) the application states the first and last day of the extended leave; 10
and 11
(c) unless the things mentioned in section 162(1)(f)(i)86 are still as 12
specified in the relevant statutory declaration--the employee gives 13
with the application a statutory declaration stating the things 14
mentioned; and 15
(d) the period of leave, if extended, would not be more than the 16
period of entitlement under section 163,87 worked out when 17
granting the application. 18
(3) The maternity leave may be extended again only by agreement 19
between the employer and the employee. 20
maternity leave 21
Shortening
167.(1) An employee may apply to shorten the part 3 maternity leave 22
granted to her. 23
(2) The employer may grant the application if it states the last day of the 24
shortened leave. 25
85 Section 162 (Conditions of entitlement to maternity leave)
86 Section 162 (Conditions of entitlement to maternity leave)
87 Section 163 (Period of maternity leave)
s 168 132 s 169
Workplace Relations
on maternity leave of failure to complete 1 year of continuous 1
Effect
service 2
168. The employer may cancel part 3 maternity leave if-- 3
(a) it has been granted on the basis that it is reasonable to expect the 4
employee will complete a period of at least 1 year of continuous 5
service with the employer on a particular day; and 6
(b) the employee does not complete the period on the day.88 7
on maternity leave if pregnancy terminates or child dies 8
Effect
169.(1) This section applies if an employer has approved part 3 maternity 9
leave to an employee and-- 10
(a) the pregnancy terminates other than by the birth of a living child; 11
or 12
(b) she gives birth to a living child, but the child later dies. 13
(2) If an event mentioned in subsection (1)(a) or (b) happens before the 14
leave begins, the employer may cancel the leave before it begins. 15
(3) If the leave has begun, the employee may notify the employer that she 16
wishes to return to work. 17
(4) If the employee does so, the employer must notify her of the day 18
when she must return to work. 19
(5) The day must be within 4 weeks after the employer received the 20
notice. 21
(6) Also, despite subsections (3) to (5), if the leave has begun, the 22
employer may notify the employee of the day when she must return to 23
work. 24
(7) The day must be at least 4 weeks after the employer gives the notice. 25
(8) If the employee returns to work, the employer must cancel the rest of 26
the leave. 27
88 If the period is not completed because the child is premature, see section 162(5).
s 170 133 s 171
Workplace Relations
on maternity leave of ceasing to be the primary care-giver 1
Effect
170.(1) This section applies if-- 2
(a) during a substantial period beginning on or after the beginning of 3
an employee's part 3 maternity leave, the employee is not the 4
child's primary care-giver; and 5
(b) considering the length of the period and any other relevant 6
circumstances, it is reasonable to expect the employee will not 7
again become the child's primary care-giver within a reasonable 8
period. 9
(2) The employer may notify the employee of the day when she must 10
return to work. 11
(3) The day must be at least 4 weeks after the employer gives the notice. 12
(4) If the employee returns to work, the employer must cancel the rest of 13
the leave. 14
to work after maternity leave 15
Return
171.(1) This section applies when an employee returns to work after 16
part 3 maternity leave. 17
(2) The employer must employ her in the position she held immediately 18
before-- 19
(a) if she was transferred to safe duties under section 17289--the 20
transfer; or 21
(b) if she began working part-time because of the pregnancy--she 22
began working part-time; or 23
(c) otherwise--she began maternity leave. 24
(3) If-- 25
(a) the position no longer exists; but 26
(b) she is qualified for, and can perform the duties of, other positions 27
in the employer's employment; 28
89 Section 172 (Transfer to safe duties because of pregnancy)
s 172 134 s 174
Workplace Relations
the employer must employ her in whichever of the other positions is nearest 1
in status and remuneration to the position. 2
to safe duties because of pregnancy 3
Transfer
172. If a doctor considers-- 4
(a) an illness or risk arising out of an employee's pregnancy; or 5
(b) hazards connected with an employee's work considering the 6
employee's pregnancy; 7
make it inadvisable for the employee to continue existing duties, the 8
employer may-- 9
(c) transfer the employee to other duties that-- 10
(i) the employee can efficiently perform; and 11
(ii) are nearest in status and remuneration to the existing duties; 12
or 13
(d) direct the employee to take leave for the period that the doctor 14
considers necessary. 15
Division 3--Paternity leave 16
to paternity leave 17
Entitlement
173. For the birth of his spouse's child, an employee is entitled to-- 18
(a) up to 1 week of unpaid paternity leave ("part 3 short paternity 19
leave") beginning on the child's date of birth; and 20
(b) unpaid paternity leave ("part 3 long paternity leave") to be the 21
child's primary care-giver. 22
of entitlement to short paternity leave 23
Conditions
174.(1) An employer must grant part 3 short paternity leave to an 24
employee if-- 25
(a) at least 70 days before the estimated date of birth, he gives to the 26
s 174 135 s 174
Workplace Relations
employer-- 1
(i) a notice stating his intention to apply for the leave and how 2
long (up to 1 week) the leave is to last; and 3
(ii) a medical certificate that names his spouse and states she is 4
pregnant and the estimated date of birth; and 5
(b) he applies for the leave as soon as reasonably practicable on or 6
after the first day of the leave; and 7
(c) the application states the first and last days of the leave; and 8
(d) the leave is for not more than 1 week; and 9
(e) unless the first day of the leave is the estimated date of birth-- 10
(i) he gives with the application a medical certificate that names 11
his spouse and states the actual date of birth; and 12
(ii) the first day of the leave is the actual date of birth; and 13
(f) it is reasonable to expect that he will complete, or he had 14
completed, at least 1 year of continuous service with the employer 15
on the day before the estimated date of birth. 16
(2) Subsection (1)(a) and (f) does not apply if-- 17
(a) because the child was premature, or for some other compelling 18
reason, it was not reasonably practicable for the employee to 19
comply with subsection (1)(a); and 20
(b) if it was not reasonably practicable for the employee to give the 21
employer (before the actual date of birth) the notice and certificate 22
mentioned in subsection (1)(a)--he gave them as soon as 23
reasonably practicable; and 24
(c) otherwise--the medical certificate given under subsection (1)(e)(i) 25
also states the date that, as at the 70th day before the actual date of 26
birth, was the estimated date of birth; and 27
(d) it is reasonable to expect the employee will complete, or the 28
employee had completed, 1 year of continuous service with the 29
employer on the day before the estimated date of birth. 30
s 175 136 s 175
Workplace Relations
of entitlement to long paternity leave 1
Conditions
175.(1) An employer must grant part 3 long paternity leave to an 2
employee if-- 3
(a) he applies for the leave at least 70 days before the first day of the 4
of leave; and 5
(b) the application states the first and last days of the leave; and 6
(c) he gives with the application a medical certificate that names his 7
spouse and states-- 8
(i) she is pregnant and the estimated date of birth; or 9
(ii) she has given birth to a living child and the date of birth; and 10
(d) he gives with the application a statutory declaration stating-- 11
(i) the first and last days of all the following-- 12
(A) unpaid leave (other than maternity leave) or paid sick 13
leave for which his spouse intends to apply, or has 14
applied, for the pregnancy; 15
(B) maternity leave for which his spouse intends to apply, 16
or has applied, for the child's birth; 17
(C) annual or long service leave, for which his spouse 18
intends to apply, or has applied, instead of, or in 19
conjunction with, maternity leave; and 20
(ii) that he will-- 21
(A) be the child's primary care-giver throughout the 22
paternity leave; and 23
(B) not engage in conduct inconsistent with his 24
employment contract while on paternity leave; and 25
(e) it is reasonable to expect that he will complete, or he had 26
completed, at least 1 year of continuous service with the employer 27
on the day before the first day of the leave. 28
(2) Subsection (1)(a) does not apply if-- 29
(a) it was not reasonably practicable for the employee to comply with 30
the subsection because the child was premature, or for some other 31
compelling reason; and 32
s 176 137 s 176
Workplace Relations
(b) the employee gives the application as soon as reasonably 1
practicable before, on or after the first day of the leave. 2
of long paternity leave 3
Period
176.(1) The part 3 long paternity leave-- 4
(a) if the child has not been born-- 5
(i) must begin on the later of-- 6
(A) the day stated in the application as the first day of the 7
leave; or 8
(B) the estimated date of birth; and 9
(ii) must not extend beyond the first anniversary of the estimated 10
date of birth; and 11
(b) if the child has been born-- 12
(i) must begin on the later of-- 13
(A) the day stated in the application as the first day of the 14
leave; or 15
(B) the child's date of birth; and 16
(ii) must not extend beyond the child's first birthday; and 17
(c) must not overlap with the spouse's leave specified in the relevant 18
statutory declaration; and 19
(d) must be for a continuous period equal to the shorter of-- 20
(i) the period applied for; or 21
(ii) the period of entitlement. 22
(2) The period of entitlement is 52 weeks less the total of all the 23
following-- 24
(a) the short paternity leave the employee has applied to take; 25
(b) annual or long service leave the employee has applied to take 26
instead of, or in conjunction with, long paternity leave for the 27
child's birth; 28
(c) the spouse's leave stated in the relevant statutory declaration. 29
s 177 138 s 177
Workplace Relations
reduced by other paternity leave available to employee 1
Entitlement
177.(1) This section applies if, had this part not been enacted-- 2
(a) an employee could have applied (for the birth of his spouse's 3
child) for short paternity leave or long paternity leave to which 4
paragraphs (a) and (b) of the definition "short paternity leave" or 5
"long paternity leave" in section 160 apply, whether or not he has 6
in fact applied; and 7
(b) if he had applied as required by the rules governing the paternity 8
leave--he would have a legally enforceable right to the leave. 9
(2) If the period of alternative leave is at least as long as the unadjusted 10
period of paternity leave, the employer must not grant leave to the employee 11
under a relevant section. 12
(3) Otherwise, the employer must approve to the employee, instead of 13
the unadjusted period of paternity leave, a period of short paternity leave, or 14
long paternity leave, that-- 15
(a) equals the difference between the unadjusted period of paternity 16
leave and the period of alternative leave; and 17
(b) begins immediately after the period of alternative leave if the 18
employer grants it; and 19
(c) otherwise complies with a relevant section. 20
(4) In this section-- 21
"period of alternative leave" means the leave mentioned in 22
subsection (1)(b). 23
"relevant section" means section 174 or 175.90 24
"unadjusted period of paternity leave" means any part 3 short paternity 25
leave or part 3 long paternity leave that a relevant section would, apart 26
from this section, require the employer to approve to the employee for 27
the child's birth. 28
90 Section 174 (Conditions of entitlement to short paternity leave) or
175 (Conditions of entitlement to long paternity leave)
s 178 139 s 179
Workplace Relations
annual or long service leave instead of, or in conjunction with, 1
Taking
paternity leave 2
178. If an employee applies to take annual or long service leave, instead 3
of, or in conjunction with, part 3 short paternity leave or part 3 long 4
paternity leave, the employer must grant the annual or long service leave 5
if-- 6
(a) had this part not been enacted, the employer would have been 7
obliged to grant it; or 8
(b) the total of all the following is not more than 52 weeks-- 9
(i) the annual or long service leave; 10
(ii) annual or long service leave that the employer has already 11
granted the employee instead of, or in conjunction with, the 12
paternity leave; 13
(iii) the paternity leave; 14
(iv) the spouse's leave stated under section 175(1)(d)91 in the 15
relevant statutory declaration. 16
long paternity leave 17
Extending
179.(1) An employee may apply to extend the part 4 long paternity leave 18
granted for him. 19
(2) The employer must approve the application if-- 20
(a) the application is given to the employer at least 14 days before the 21
last day of the leave; and 22
(b) the application states the first and last day of the extended leave; 23
and 24
(c) unless the things mentioned in section 175(1)(d)(i)92 are still as 25
stated in the relevant statutory declaration--the employee gives 26
with the application a statutory declaration stating the things 27
mentioned; and 28
91 Section 175 (Conditions of entitlement to long paternity leave)
92 Section 175 (Conditions of entitlement to long paternity leave)
s 180 140 s 182
Workplace Relations
(d) the period of leave, if extended, would not be more than the 1
period of entitlement under section 176(2),93 worked out when 2
granting the application. 3
(3) The paternity leave may be extended again only by agreement 4
between the employer and the employee. 5
paternity leave 6
Shortening
180.(1) An employee may apply to shorten the part 3 paternity leave 7
granted to him. 8
(2) The employer may grant the application if it states the last day of the 9
shortened leave. 10
on long paternity leave of failure to complete 1 year of 11
Effect
continuous service 12
181. The employer may cancel part 3 long paternity leave if-- 13
(a) it has been granted on the basis that it is reasonable to expect the 14
employee will complete a period of at least 1 year of continuous 15
service with the employer on a particular day; and 16
(b) the employee does not complete the period on the day.94 17
on long paternity leave if pregnancy terminates or child dies 18
Effect
182.(1) This section applies if an employer has granted part 3 long 19
paternity leave to an employee and-- 20
(a) his spouse's pregnancy terminates other than by the birth of a 21
living child; or 22
(b) his spouse gives birth to a living child, but the child later dies. 23
(2) If an event mentioned in subsection (1)(a) or (b) happens before the 24
leave begins, the employer may cancel the leave before it begins. 25
93 Section 176 (Period of long paternity leave)
94 If the period is not completed because the child is premature, see section 162(5).
s 183 141 s 184
Workplace Relations
(3) If the leave has begun, the employee may notify the employer that he 1
wishes to return to work. 2
(4) If the employee does so, the employer must notify him of the day 3
when he must return to work. 4
(5) The day must be within 4 weeks after the employer received the 5
notice. 6
(6) Also, despite subsections (3) to (5), if the leave has begun, the 7
employer may notify the employee of the day when he must return to work. 8
(7) The day must be at least 4 weeks after the employer gives the notice. 9
(8) If the employee returns to work, the employer must cancel the rest of 10
the leave. 11
on paternity leave of ceasing to be the primary care-giver 12
Effect
183.(1) This section applies if-- 13
(a) during a substantial period beginning on or after the beginning of 14
an employee's part 3 long paternity leave, the employee is not the 15
child's primary care-giver; and 16
(b) considering the length of the period and any other relevant 17
circumstances, it is reasonable to expect the employee will not 18
again become the child's primary care-giver within a reasonable 19
period. 20
(2) The employer may notify the employee of the day he must return to 21
work. 22
(3) The day must be at least 4 weeks after the employer gives the notice. 23
(4) If the employee returns to work, the employer must cancel the rest of 24
the leave. 25
to work after paternity leave 26
Return
184.(1) This section applies when an employee returns to work after 27
part 3 long paternity leave. 28
(2) The employer must employ him in the position he held immediately 29
before he began paternity leave. 30
s 185 142 s 185
Workplace Relations
(3) If-- 1
(a) the position no longer exists; but 2
(b) he is qualified for, and can perform the duties of, other positions 3
in the employer's employment; 4
the employer must employ him in whichever of the other positions is 5
nearest in status and remuneration to the position. 6
Division 4--General 7
duty if excessive leave approved or if maternity leave and 8
Employee's
paternity leave overlap 9
185.(1) This section applies if-- 10
(a) the total of all the following is more than 52 weeks-- 11
(i) maternity leave granted by an employer to an employee for a 12
pregnancy; 13
(ii) annual or long service leave granted by the employer to the 14
employee instead of, or in conjunction with, the maternity 15
leave; 16
(iii) unpaid leave (other than maternity leave) or paid sick leave 17
granted by the employer to the employee for the pregnancy; 18
(iv) paternity leave granted by an employer to the employee's 19
spouse; 20
(v) annual or long service leave granted by the employer to the 21
employee's spouse instead of, or in conjunction with, the 22
paternity leave; or 23
(b) leave granted for the employee overlaps with leave granted for the 24
employee's spouse. 25
(2) The employee must give her employer a notice-- 26
(a) if subsection (1)(a) applies--stating that the total is more than 27
52 weeks and stating the amount of the excess; and 28
(b) if subsection (1)(b) applies--stating the period of overlap; and 29
s 186 143 s 186
Workplace Relations
(c) suggesting how the employer may vary or cancel leave granted to 1
her (other than leave she has already taken) to reduce or remove 2
the excess or overlap; and 3
(d) unless the variations and cancellations suggested will remove the 4
excess or overlap--setting out the suggestions her spouse has 5
made or will make under subsection (3)(c). 6
(3) The employee's spouse must give his employer a notice-- 7
(a) if subsection (1)(a) applies--stating that the total is more than 8
52 weeks and stating the amount of the excess; and 9
(b) if subsection (1)(b) applies--stating the period of overlap; and 10
(c) suggesting how the employer may vary or cancel leave granted to 11
him (other than leave he has already taken) to reduce or remove 12
the excess or overlap; and 13
(d) unless the variations or cancellations suggested will remove the 14
excess or overlap--setting out the suggestions his spouse has 15
made or will make under subsection (2)(c). 16
(4) The variations and cancellations suggested must be of a kind that, if 17
they are all made, the excess or overlap will be removed. 18
(5) An employer who receives a notice under subsection (2) or (3) may 19
vary or cancel leave as suggested in the notice, or as agreed with the 20
employee or her spouse. 21
to warn replacement employee that employment is only 22
Employer
temporary 23
186. An employer may employ a person-- 24
(a) to replace an employee while the employee is on parental leave; or 25
(b) to replace an employee who, while another employee is on 26
parental leave, must perform the duties of the position held by the 27
other employee; 28
only if the employer has informed the person-- 29
(c) that the person's employment is temporary; and 30
(d) about the rights of the employee who is on parental leave. 31
s 187 144 s 190
Workplace Relations
leave and continuity of service 1
Parental
187. A period of parental leave does not break an employee's continuity 2
of service, but does not count as service other than-- 3
(a) to determine the employee's entitlement to a later period of 4
parental leave; or 5
(b) as expressly provided in this Act, or in an industrial instrument or 6
order; or 7
(c) as prescribed under a regulation. 8
of part on other laws 9
Effect
188.(1) To avoid doubt, this part has effect despite-- 10
(a) another law of the State; or 11
(b) an industrial instrument or order. 12
(2) However, this part is not intended to exclude or limit the operation of 13
the law, industrial instrument or order as far as it can operate concurrently 14
with this part. 15
for adoption leave 16
Regulations
189. A regulation may provide for employers to give employees unpaid 17
adoption leave. 18
PART 4--LONG SERVICE LEAVE 19
for pt 4 20
Definitions
190. In this part-- 21
"continuous service" of an employee means-- 22
(a) in section 194 95--the period of continuous service the employee 23
95 Section 194 (Long service leave in sugary industry and meat works)
s 191 145 s 191
Workplace Relations
is taken to have had with an employer under section 194(3); and 1
(b) elsewhere--the employee's continuous service with the same 2
employer (whether wholly in the State, or partly in and partly 3
outside the State). 4
"industrial authority" means-- 5
(a) for a certified agreement--the commission; or 6
(b) for a QWA--an enterprise commissioner. 7
"owner" of a meat works includes a person who carries on the business of 8
the works. 9
"period between seasons" includes the period between-- 10
(a) the end of 1 season and the start of the next season; and 11
(b) for a particular employee--the day the employee stops 12
employment in 1 season and the day the employee starts 13
employment in the next season. 14
"season" means a period (whether falling completely in 1 calendar year or 15
partly in 1 calendar year and partly in the next calendar year) when-- 16
(a) for the sugar industry-- 17
(i) sugar cane is delivered to, and crushed at, a sugar mill; or 18
(ii) sugar cane is harvested, or farm work is performed, in the 19
sugar industry; and 20
(b) for a meat works--stock are delivered to, and slaughtered at, the 21
works. 22
"seasonal employment" means employment related to a season. 23
of long service leave entitlement 24
Source
191. The entitlement of employees to long service leave on full pay is-- 25
(a) for employees who have the entitlement under another Act--as 26
prescribed under the other Act; or 27
s 192 146 s 193
Workplace Relations
(b) for an entitlement under section 19596--as declared under a 1
regulation made under section 195; or 2
(c) for an entitlement under section 19697--as prescribed under 3
section 196; or 4
(d) for employees who have an entitlement, under an industrial 5
instrument, that is not as favourable as the entitlement under this 6
part--as prescribed under this part. 7
of long service leave conditions 8
Approval
192.(1) On application, the commission must insert in an award 9
provisions entitling employees to long service leave on full pay as 10
prescribed by this part. 11
(2) An industrial authority may approve, as a certified agreement or 12
QWA, an agreement under which employees are entitled to long service 13
leave benefits that the industrial authority considers are at least as favourable 14
to employees as the entitlement under this part. 15
(3) The industrial authority must approve the agreement if satisfied-- 16
(a) an employer who is a party to the agreement has agreed to the 17
provisions conferring long service leave on the employees; and 18
(b) the community in general will not be prejudiced by conferring the 19
leave. 20
to long service leave 21
Entitlement
193.(1) An employee who is entitled to long service leave under a law, 22
industrial instrument, or other agreement or arrangement, is entitled to leave 23
that is at least as favourable as the entitlement under this part. 24
(2) The entitlement of employees to long service leave under this part 25
is-- 26
(a) for an employee with 15 years continuous service--13 weeks; 27
and 28
96 Section 195 (Long service leave for other seasonal employees)
97 Section 196 (Long service leave for employees not governed awards etc.)
s 194 147 s 194
Workplace Relations
(b) for an employee, with at least 10 but less than 15 years 1
continuous service, whose service is terminated--a period that 2
bears to 13 weeks the proportion that the employee's period of the 3
continuous service (stated in years, and a fraction of a year if 4
necessary) bears to 15 years; and 5
(c) for an employee who, after completing the first, or a subsequent, 6
15 years continuous service, continues the service-- 7
(i) if the employee completes a further 15 years continuous 8
service--a further 13 weeks; or 9
(ii) if the employee's service is terminated after completing at 10
least a further 5 but less than 15 years continuous service--a 11
further period that bears to 13 weeks the proportion that the 12
employee's further period of the continuous service (stated 13
in years, and a fraction of a year if necessary) bears to 14
15 years. 15
(3) Long service leave is exclusive of a public holiday during the period 16
of the leave. 17
(4) This section applies subject to adjustments made for-- 18
(a) a seasonal employee under section 194 or 195;98 and 19
(b) a casual employee under section 200.99 20
(5) In this section-- 21
"terminated" means terminated by-- 22
(a) the employee's death; or 23
(b) the employee; or 24
(c) the employer, for a cause other than serious misconduct. 25
service leave in sugar industry and meat works 26
Long
194.(1) This section applies to an employee who is entitled to long 27
98 Section 194 (Long service leave in sugary industry and meat works) or
195 (Long service leave for other seasonal employees)
99 Section 200 (Service of casual employees)
s 194 148 s 194
Workplace Relations
service leave on full pay because the commission has conferred, under 1
section 192,100 an entitlement on employees employed-- 2
(a) in seasonal employment in the sugar industry; or 3
(b) in or about meat works in seasonal employment by the meat 4
works owner. 5
(2) This section prescribes the employee's entitlement to long service 6
leave by determining-- 7
(a) under subsection (3)-- 8
(i) how the employee's period of continuous service with an 9
employer must be worked out for the purpose of working 10
out the employee's unadjusted entitlement; and 11
(ii) how the employee's period of actual service with an 12
employer must be worked out; and 13
(b) under subsection (4)--the employee's seasonal entitlement for 14
each period of long service leave provided under section 193. 15
(3) The following rules apply for subsection (2)(a)-- 16
(a) service before the commencement of this section must be treated 17
in the same way as service after the commencement; 18
(b) if the employee is engaged in harvesting sugar cane or farm work 19
in the sugar industry--service with the employer before 23 June 20
1990 must not be taken into account; 21
(c) the continuity of the employee's service with an employer is not 22
broken by a period when the employee is not employed by the 23
employer between seasons if-- 24
(i) in 1 season, the employee's service with the employer 25
continued until the end of the season or until an earlier day 26
when the employee's employment was terminated by the 27
employer; and 28
(ii) in the next season, the employee's service with the same 29
employer started on the season's opening or on a later day in 30
the season when the employer required the employee to start 31
100 Section 192 (Approval of long service leave conditions)
s 194 149 s 194
Workplace Relations
employment; 1
(d) a period between seasons, when the employee is not employed by 2
the employer-- 3
(i) must be taken into account in calculating the employee's 4
period of continuous service with an employer; and 5
(ii) must not to be taken into account in working out the length 6
of the employee's actual service; 7
(e) times in a period between seasons when the employee is 8
employed by the employer must be taken into account for 9
determining actual service; 10
(f) long service leave to which an employee is entitled-- 11
(i) may be taken by the employee during the period between 12
seasons; and 13
(ii) if taken during the period between seasons--is taken to have 14
started on the last cessation of the employee's employment 15
by the employer. 16
(4) For subsection (2)(b), the seasonal entitlement of an employee for 17
each period of long service leave provided for under section 193 is the 18
period obtained by using the following formula-- 19
unadjusted entitlement X actual service 20
continuous service. 21
(5) In this section-- 22
"actual service" of an employee means the period of actual service the 23
employee is taken to have had with an employer under subsection (3). 24
"meat works" means a place where livestock are slaughtered or meat is 25
boned. 26
"seasonal entitlement" of an employee means the period of long service to 27
which an employee is entitled by using the formula in subsection (4). 28
"unadjusted entitlement" means the period of long service leave to which 29
an employee would be entitled under section 193 if-- 30
(a) subsection (3) was applied; but 31
(b) the adjustment under subsection (4) was not made. 32
s 195 150 s 196
Workplace Relations
service leave for other seasonal employees 1
Long
195.(1) A regulation may provide for long service leave for other 2
employees whose employment with the same employer-- 3
(a) is seasonal or of another periodic nature; and 4
(b) is not defined as casual by the relevant industrial instrument. 5
(2) The regulation may specify employees by reference to callings, 6
duties, employers, workplaces or in another way sufficient to identify them. 7
service leave for employees not governed by awards etc. 8
Long
196.(1) This section applies to an employee who is not bound by-- 9
(a) an industrial instrument; or 10
(b) a Commonwealth award that provides for long service leave; or 11
(c) another Act, or a law of the Commonwealth, that provides for 12
long service leave. 13
(2) The employee is entitled to long service leave on full pay in 14
accordance with sections 193 to 206 and this section. 15
(3) A reference in sections 193 to 206, to an industrial instrument, is to 16
be read as including a reference to a Commonwealth award. 17
(4) The commission may determine all matters about the time when, the 18
way in which and the conditions on which long service leave may be taken. 19
(5) Without limiting subsection (4), the commission's jurisdiction 20
extends to the declaration of general rulings by a full bench. 21
(6) A person must comply with the general ruling. 22
Maximum penalty--16 penalty units. 23
(7) For this section, if the employee is employed in seasonal employment 24
in or about meat works by an owner in seasonal employment as defined by 25
section 194101-- 26
(a) the continuity of the employee's service with an employer is not 27
broken by a period when the employee is not employed by the 28
101 Section 194 (Long service leave in sugary industry and meat works)
s 197 151 s 197
Workplace Relations
employer between seasons if-- 1
(i) in 1 season, the employee's service with the employer 2
continued until the end of the season or until an earlier date 3
when the employee's employment was terminated by the 4
employer; and 5
(ii) in the next season, the employee's service with the same 6
employer commenced on the season's opening or on a later 7
date in the season when the employer required the employee 8
to commence employment; and 9
(b) in determining the length of continuous service with the 10
employer-- 11
(i) a period between seasons, when the employee is not 12
employed by an employer, must not be taken into account; 13
and 14
(ii) times in the period when the employee is employed by the 15
employer must be taken into account; and 16
(c) long service leave to which an employee is entitled-- 17
(i) may be taken by the employee during the period between 18
seasons; and 19
(ii) if taken during the period between seasons--is taken to have 20
started on the last cessation of the employee's employment 21
by the employer. 22
(8) In this section-- 23
"Commonwealth award" means an industrial instrument, determination 24
or order made, registered, approved or certified under the 25
Commonwealth Act. 26
of service generally 27
Continuity
197.(1) In working out an employee's entitlement to long service leave 28
under this part-- 29
(a) service with an employer who becomes a member of a 30
partnership and service with the partnership is service with the 31
same employer; and 32
s 197 152 s 197
Workplace Relations
(b) service with a partnership and-- 1
(i) service with 1 or more of the former partners on dissolution 2
of the partnership; and 3
(ii) service with the partnership as reconstituted, on dissolution 4
of the partnership; 5
is service with the same employer; and 6
(c) continuity of an employee's service with an employer is not 7
broken by-- 8
(i) absence (including through illness or injury) from work on 9
leave approved by the employer; or 10
(ii) the employee's employment being terminated by the 11
employer or employee because of illness or injury, if the 12
employee-- 13
(A) is re-employed by the employer; and 14
(B) has not been employed in a calling (whether on the 15
employee's own account or as an employee) between 16
the termination and the re-employment; or 17
(iii) the employee's employment being terminated by the 18
employer or employee for not more than 3 months, if the 19
employee is re-employed by the employer; or 20
(iv) an interruption or termination of the employee's service with 21
the employer, if the interruption or termination has-- 22
(A) been effected by the employer with an intention of 23
avoiding an obligation imposed on the employer by this 24
part or an industrial instrument; or 25
(B) arisen directly or indirectly from an industrial dispute, 26
and the employee is re-employed by the employer; or 27
(C) been effected by the employer because of slackness in 28
trade or business, and the employee is re-employed by 29
the employer; or 30
(v) the employer's calling is transferred from the employer to 31
another employer; or 32
s 198 153 s 198
Workplace Relations
(vi) the employee's employment being terminated by the 1
employer or employee, on the date when the employer's 2
calling is transferred from the employer to another employer, 3
or within 1 month immediately before that date, if the 4
employee is re-employed by the other employer within 5
3 months after the termination; and 6
(d) periods of continuous service of an employee with each of the 7
employers from or to whom the calling in which the employer is 8
engaged is transferred must be taken into account in determining 9
the length of the employee's continuous service with the 10
employer to whom the employee's service is transferred. 11
(2) In this section-- 12
"terminate" includes stand-down. 13
length of continuous service 14
Determining
198.(1) If an employee's entitlement to long service leave relates to 15
employment before the relevant day-- 16
(a) the determination of the employee's continuous service before the 17
relevant day; and 18
(b) the calculation of the employee's entitlement to long service leave 19
in relation to continuous service before the relevant day; 20
must be made under the repealed Industrial Conciliation and Arbitration 21
Act 1961, sections 17, 18, 19 or 20, as the case requires. 22
(2) In determining the length of an employee's continuous service, a 23
period of the employee's absence from work that does not break the 24
continuity of the employee's service under the following sections is not to 25
be taken into account-- 26
(a) section 197(1)(c)(ii); 27
(b) section 197(1)(c)(iv)(A) or (B). 28
(3) In determining the length of an employee's continuous service, if the 29
employee's service is, or has been before the relevant day-- 30
(a) temporarily lent or let on hire by an employer to another 31
employer--the service with the other employer is taken to be 32
s 199 154 s 199
Workplace Relations
service with the employer; or 1
(b) transferred by an employer to another employer--the service with 2
each of the employers (except for a period when the employee 3
took long service leave) is taken to be service with the other 4
employer. 5
(4) In determining the length of an employee's continuous service with a 6
corporation, or of another corporation that is a subsidiary of the corporation, 7
the service with each of the corporations (except for a period when the 8
employee took long service leave) is to be taken into account. 9
(5) In this section-- 10
"relevant day" means 23 June 1990. 11
"subsidiary" means a corporation that would be taken to be a subsidiary 12
under the Corporations law, whether or not the Corporations law 13
applies in a particular case. 14
in Defence Force 15
Service
199.(1) This section applies in working out a person's entitlement to long 16
service leave under this part. 17
(2) Service by the person as a member of the Defence Force is taken to 18
be continuous service with the employer who employed the person 19
immediately before the person began service with the Force. 20
(3) In this section-- 21
"Defence Force" means the Australian Defence Force. 22
"permanent forces" has the meaning given by the Defence Act 1903 23
(Cwlth).102 24
"service", as a member of the Defence Force, means service in the Force 25
other than in the permanent forces. 26
102 See section 4(1) of that Act.
s 200 155 s 200
Workplace Relations
of casual employees 1
Service
200.(1) In working out an employee's entitlement to long service leave 2
under this part, service of an employee who is employed more than once by 3
the same employer over a period is continuous service with the employer 4
even if the employment is broken. 5
(2) However, the continuous service ends if the employment is broken 6
by more than a 3 month period between the end of 1 employment contract 7
and the start of the next employment contract. 8
(3) Subsection (1) applies even though-- 9
(a) any of the employment is not full-time employment; or 10
(b) the employee is employed by the employer under 2 or more 11
employment contracts; or 12
(c) the employee would, apart from this section, be taken to be 13
engaged in casual employment; or 14
(d) the employee has engaged in other employment during the period. 15
(4) In working out the employee's continuous service-- 16
(a) service by the employee before 23 June 1990 must not be taken 17
into account; and 18
(b) if the employee only obtained the entitlement because of the 19
enactment of section 17 of the Industrial Relations Reform Act 20
1994--the employee's service between 23 June 1990 and the 21
commencement of section 17 must not be taken into account; and 22
(c) a period when the employee was not employed by the employer 23
must be taken into account. 24
(5) Subsection (4)(a) does not affect an employee's entitlement to long 25
service leave under-- 26
(a) an award made before 23 June 1990; or 27
(b) the Industrial Conciliation and Arbitration Act 1961. 28
s 201 156 s 201
Workplace Relations
(6) This section does not limit an entitlement to long service leave 1
worked out other than under this section.103 2
long service leave 3
Taking
201.(1) Subject to section 193,104 an industrial authority may insert in an 4
industrial instrument the provisions the industrial authority considers 5
appropriate-- 6
(a) for the time when, the way in which and the conditions on which 7
long service leave may be taken; or 8
(b) to the effect that leave in the nature of long service leave taken, 9
before the provisions are inserted, by an employee bound by the 10
instrument must be deducted from the long service leave that the 11
employee becomes entitled to under the provisions. 12
(2) The provisions operate and must be given effect as if prescribed 13
under this part. 14
(3) Subject to a provision of the industrial instrument, long service leave 15
may be taken at a time agreed between-- 16
(a) an organisation of which the employees are members; and 17
(b) the employer. 18
(4) If-- 19
(a) the relevant industrial instrument does not provide for the time 20
when, or the way in which, long service leave may be taken; and 21
(b) an employee, or an organisation of which the employee is a 22
member, fails to agree with the employer on the matters; 23
the employer may give the employee at least 3 months notice of the date on 24
103 See section 197, which provides other rules for calculating an employee's
entitlement to long service leave.
104 Section 193 (Entitlement to long service leave)
s 202 157 s 203
Workplace Relations
which the employee must take at least 4 weeks long service leave. 1
(5) The employee must comply with the notice. 2
long service leave--casual employees 3
Taking
202.(1) An employer may agree with an employee who is entitled to long 4
service leave under section 200 105 that the entitlement may be taken in the 5
form of its full-time equivalent. 6
7
Example--
8
If an employee--
9
(a) is entitled to be paid for 260 hours long service leave; and
10
(b) works under an award that provides for a full-time working week of
11
40 ordinary hours;
12
the employee and the employer may agree that the employee take 61/2 weeks leave
13
(260 ÷ 40 = 61/2).
(2) This section applies subject to a provision in an industrial instrument 14
about the employee's long service leave. 15
for long service leave 16
Payment
203.(1) Long service leave must be paid for as ordinary time that, for the 17
purpose of making the payment, is taken to be worked continuously by the 18
employee during the leave period. 19
(2) If, immediately before commencing long service leave, an employee 20
is being paid for ordinary time at a higher rate than the ordinary rate, the 21
employee's leave must be paid for at the higher rate. 22
(3) However, if during the employee's leave, the ordinary rate is-- 23
(a) increased above the higher rate--the employee must be paid at the 24
increased rate for the part of the leave period that the increased rate 25
applies to; or 26
(b) decreased--the employee may be paid at the decreased rate for the 27
part of the leave period that the decreased rate applies to. 28
105 Section 200 (Service of casual employees)
s 204 158 s 204
Workplace Relations
(4) If satisfied an employer has, before an employee starts long service 1
leave, decreased the rate at which the employee is being paid for ordinary 2
time (the "usual rate") (being a higher rate than the ordinary rate) with 3
intent to avoid the employer's obligation under subsection (2), the 4
commission may order the employee's leave be paid for at the usual rate. 5
(5) If an order is made, subsection (2) applies to the employee as if the 6
employee were being paid the usual rate immediately before the employee 7
started the leave. 8
(6) In this section-- 9
"ordinary rate" means the rate payable for ordinary time under a relevant 10
industrial instrument. 11
for long service leave--casual employees 12
Payment
204.(1) The amount payable to a casual employee for long service leave 13
is worked out using the formula-- 14
number of hours x hourly rate. 15
(2) For the formula under subsection (6), the number of hours is worked 16
out using the formula-- 17
actual service x 13 18
52 15. 19
20
Example of subsection (2)--
21
An employee who worked 15 600 ordinary hours over a 15 year period and is being
22
paid an hourly rate of $10 would be entitled to be paid--
23
(15 600 x 13) x $10
24
( 52 15)
25
= 260 x $10
26
= $2 600.
(3) If a dispute arises between an employee who is paid at piecework 27
rates and the employer about the rate the employee should be paid for long 28
service leave, the commission may determine the payment. 29
(4) An employer and employee may agree on the times when and the 30
way in which the employee will be paid for long service leave. 31
(5) The commission may determine a matter relating to the payment that 32
s 205 159 s 205
Workplace Relations
the employer and employee can not agree on. 1
(6) An amount payable for long service leave becomes payable at a time 2
agreed between the employer and the employee or, if they can not agree, 3
determined by the commission. 4
(7) In this section-- 5
"actual service" means the total ordinary hours actually worked by an 6
employee during the period of continuous service to which the long 7
service leave entitlement relates. 8
"casual employee" means an employee mentioned in section 200(1).106 9
"hourly rate" means the hourly rate for ordinary time payable to the 10
employee on the day-- 11
(a) if the employee takes the long service leave--the employee starts 12
the leave; or 13
(b) otherwise--immediately before the entitlement becomes payable. 14
"number of hours" means the number of hours for which payment must 15
be made for long service leave. 16
instead of long service leave 17
Payment
205.(1) An employer must not make, and an employee must not accept, 18
payment instead of long service leave except on termination of an 19
employee's employment. 20
Maximum penalty--40 penalty units. 21
(2) Subsection (3) applies if an employee entitled to long service leave 22
dies-- 23
(a) before taking the leave; or 24
(b) after starting, but before finishing, the leave. 25
(3) Unless the amount has been already paid to the employee who has 26
died, the employer must pay the employee's legal personal representative 27
the amount payable for long service leave for-- 28
106 Section 200 (Service of casual employees)
s 206 160 s 206
Workplace Relations
(a) the employee's entitlement to long service leave; or 1
(b) the part of the entitlement for which payment has not been made. 2
(4) If an amount payable under subsection (3) is not paid, the employee's 3
legal personal representative or an inspector may, without limiting another 4
way of recovery, recover the amount under section 423(1) and (3)107 as 5
unpaid wages. 6
on re-employment of employee during long service leave 7
Inquiry
206.(1) This section applies if-- 8
(a) an employee's service with an employer is terminated by the 9
employer or the employee; and 10
(b) the employer pays the employee for all or any long service leave 11
to which the employee is entitled; and 12
(c) the employer re-employs the employee within a period, 13
commencing on the termination date, equal to the period of long 14
service leave for which payment was made. 15
(2) On application by an inspector or an organisation of which the 16
employee is a member, a magistrate may inquire into the matter.. 17
(3) If satisfied the employer and employee arranged the termination, 18
payment and re-employment to avoid the employee taking all or any long 19
service leave, the magistrate may make the order the magistrate considers 20
appropriate. 21
(4) In making the order, the magistrate must consider the object of this 22
part that long service leave is to taken by an employee in accordance with 23
the employee's entitlement. 24
(5) A person must not enter into an arrangement mentioned in 25
subsection (3). 26
Maximum penalty--16 penalty units. 27
107 Section 423 (Recovery of wages etc.)
s 207 161 s 209
Workplace Relations
of certain exemptions 1
Recognition
207.(1) The provisions of this part that provide for long service leave for 2
employees do not apply to an employer if-- 3
(a) the commission has exempted the employer, under the Industrial 4
Conciliation and Arbitration Act 1961, from the application of 5
long service leave provisions in that Act or an award; and 6
(b) the exemption is in force. 7
(2) On application, the commission may revoke an exemption. 8
may be "employer" and "employee" 9
Person
208. If in performing duties in a calling a person is an employee, the 10
person is entitled to long service leave as prescribed under this part despite 11
the person being, by definition for this Act, an employer because of-- 12
(a) the person's engagement in the calling; or 13
(b) the position the person holds in the calling. 14
in apprenticeship or traineeship 15
Service
209.(1) This section applies if an employer continues to employ an 16
apprentice or trainee (the "employee") on the completion of the 17
apprenticeship or traineeship. 18
(2) The period of apprenticeship or traineeship must be taken into account 19
in determining the length of the employee's continuous service with the 20
employer. 21
(3) An employer who re-employs the employee within 3 months after 22
completion of the employee's apprenticeship or traineeship is taken to have 23
continued to employ the employee on completion. 24
s 210 162 s 212
Workplace Relations
ART 5--OTHER LEAVE 1
P
leave accrued during apprenticeship or traineeship 2
Annual
210.(1) This section applies if an employer continues to employ an 3
apprentice or trainee (the "employee") on completion of the apprenticeship 4
or traineeship. 5
(2) Any annual leave not taken during the apprenticeship or traineeship 6
accrues. 7
(3) However, unless the commission otherwise determines, in working 8
out the amount of accrued annual leave-- 9
(a) a limitation of the amount imposed under the Vocational 10
Education, Training and Employment Act 1991 must be taken 11
into account; and 12
(b) a limitation of the amount imposed by the relevant industrial 13
instrument must not be taken into account. 14
(4) This section does not affect an employee's entitlement to annual 15
leave. 16
leave accrued during apprenticeship or traineeship 17
Sick
211.(1) This section applies if an employer continues to employ an 18
apprentice or trainee (the "employee") on the completion of the 19
apprenticeship or traineeship. 20
(2) Sick leave accrued by the employee before the completion must be 21
taken into account to work out the employee's entitlement to be paid for 22
time absent from work through illness during the continued employment. 23
(3) An employer who re-employs the employee within 3 months after 24
completion of the employee's apprenticeship or traineeship is taken to have 25
continued to employ the employee on the completion. 26
of employment for sick leave 27
Continuity
212.(1) In working out an employee's entitlement to sick leave-- 28
(a) if the calling in which the employee is employed is transferred 29
s 212 163 s 212
Workplace Relations
from the employer to another employer-- 1
(i) the transfer does not break the employee's continuity of 2
employment; and 3
(ii) the periods of the employee's employment with each of the 4
employers must be taken into account to work out the length 5
of the employee's continuous employment; and 6
(b) the employee's employment by an employer who becomes a 7
member of a partnership and employment of the employee with 8
the partnership is employment with the same employer; and 9
(c) employment by a partnership and-- 10
(i) employment by 1 or more of the former partners, on 11
dissolution of the partnership; or 12
(ii) employment by the partnership as reconstituted, on 13
dissolution of the partnership; 14
is employment with the same employer; and 15
(d) the continuity of employment of the employee in a calling 16
transferred from the employer to another employer is not broken 17
if-- 18
(i) the employee is dismissed by-- 19
(A) within 1 month before the date when the calling is 20
transferred--the employer; or 21
(B) on the date when the calling is transferred--either 22
employer; and 23
(ii) within 3 months after the dismissal, the employee is 24
re-employed by the other employer; and 25
(e) employment with a corporation or its subsidiary that would 26
constitute unbroken continuous employment with an employer if 27
the corporations were the same employer is taken to be 28
continuous employment with the same employer. 29
(2) In this section-- 30
"dismiss" includes stand down. 31
"subsidiary" means a corporation that would be taken to be a subsidiary 32
s 213 164 s 214
Workplace Relations
under the Corporations Law, whether or not the Corporations Law 1
applies in a particular case. 2
HAPTER 5--DISMISSALS 3
C
PART 1--OBJECTS AND INTERPRETATION 4
of ch 5 5
Objects
213. The objects of this chapter are-- 6
(a) to establish procedures for deciding whether a dismissal is 7
unlawful; and 8
(b) to provide for appropriate remedies and sanctions if a dismissal is 9
found to be unlawful; and 10
(c) by establishing the procedures, remedies and sanctions, to help 11
give effect to-- 12
(i) the Termination of Employment Convention; and 13
(ii) the Discrimination (Employment and Occupation) 14
Convention; and 15
(iii) the Family Responsibilities Convention; and 16
(d) by the procedures and remedies, to ensure both the employer and 17
employee concerned in an application about a dismissal are given 18
a `fair go all round'; and 19
(e) to provide for protection of injured employees. 20
of expressions 21
Meaning
214. If an expression used in this chapter is also used in the Termination 22
of Employment Convention, it has the same meaning as in the Convention. 23
s 215 165 s 216
Workplace Relations
laws 1
Complementary
215.(1) For the dismissal of a federal award employee, the 2
Commonwealth provisions apply as a law of this State, in place of this 3
chapter, to enable functions to be performed or powers to be exercised by-- 4
(a) the Australian commission; or 5
(b) the Federal Court of Australia, in connection with orders of the 6
Australian commission made in the exercise of the 7
Commonwealth provisions. 8
(2) In this section-- 9
"Commonwealth provisions" means the Commonwealth Act, part VIA, 10
division 3, subdivision B. 11
"federal award employee" means a federal award employee within the 12
meaning of the Commonwealth Act, section 170CD. 13
of employees from part 14
Exclusion
216.(1) This chapter does not apply to an apprentice or trainee-- 15
(a) whose service is terminated under the Vocational Education, 16
Training and Employment Act 1991, section 71;108 or 17
(b) whose training agreement is cancelled under the Vocational 18
Education, Training and Employment Act 1991, sections 96 19
or 97.109 20
(2) Part 2 110 applies to casual employees other than those excluded under 21
a regulation. 22
(3) Part 3111 does not apply to-- 23
(a) a casual employee; or 24
(b) an employee engaged by the hour or day; or 25
108 Section 71 (Trainee probation)
109 Section 96 (Discipline) or 97 (Cancellation of training agreement on request)
110 Part 2 (Unlawful dismissals)
111 Part 3 (Requirements for dismissal)
s 217 166 s 217
Workplace Relations
(c) an employee engaged for a specific period or task. 1
(4) Sections 227, 228 and 229112 do not apply to an employee with less 2
than 1 year of continuous service. 3
(5) A regulation may exclude particular employees from the operation of 4
particular provisions of this chapter. 5
ART 2--UNLAWFUL DISMISSALS 6
P
dismissal is unlawful 7
When
217. A dismissal is unlawful if-- 8
(a) it is harsh, unjust or unreasonable; or 9
(b) it is for any of the following reasons (an "invalid reason")-- 10
(i) temporary absence from work because of illness or injury 11
(other than an injury within the meaning of part 5113); 12
(ii) seeking office as, or acting or having acted in the capacity of, 13
an employees' representative; 14
(iii) membership of an employee organisation or participation in 15
the organisation's activities outside working hours or, with 16
the employer's consent, during working hours; 17
(iv) non-membership of an employee organisation; 18
(v) filing a complaint, or taking part in a proceeding, against an 19
employer involving alleged violation of laws or recourse to 20
competent administrative authorities; 21
(vi) the making by anyone, or a belief that anyone has made or 22
may make-- 23
112 Sections 227 (Orders giving effect to articles 12 and 13 of Convention),
228 (Orders if employer does not consult about proposed dismissals) and
229 (Employer must notify Commonwealth employment service of proposed
dismissals)
113 Part 5 (Protection of injured employees)
s 218 167 s 219
Workplace Relations
(A) a public interest disclosure under the Whistleblowers 1
Protection Act 1994; or 2
(B) a complaint under the Health Rights Commission Act 3
1991; 4
(vii) refusing to negotiate for, make, sign, extend, amend or 5
terminate a QWA; 6
(viii)family responsibilities; 7
(ix) absence from work during parental leave; 8
(x) a reason mentioned in section 421(2);114 9
(xi) discrimination that would contravene the 10
Anti-Discrimination Act 1991. 11
to remedy unlawful dismissal 12
Application
218.(1) If a dismissed employee alleges the dismissal was unlawful, an 13
application may be made to the commission for the dismissal to be dealt 14
with under this part. 15
(2) An application may be made by-- 16
(a) an employee; or 17
(b) with the employee's consent--an organisation whose rules entitle 18
it to represent the employee's industrial interests. 19
(3) An application must be made within-- 20
(a) 21 days after the dismissal takes effect; or 21
(b) a further period the commission allows on an application made 22
during or after the 21 days. 23
before application heard 24
Conciliation
219.(1) Before the commission hears an application under section 218, 25
the commission must hold a conference to attempt to settle the matter by 26
conciliation. 27
114 Section 421 (Contract not to stipulate mode of spending wages)
s 220 168 s 220
Workplace Relations
(2) The commission may summons the applicant or employer to attend 1
the conference at a stated time and place. 2
(3) If the commission is satisfied all reasonable attempts to settle the 3
matter by conciliation are, or are likely to be, unsuccessful, it-- 4
(a) must inform the parties to the conciliation of-- 5
(i) that fact; and 6
(ii) the possible consequences of further proceeding on the 7
application; and 8
(b) may recommend the application be discontinued, whether or not it 9
also recommends another way of resolving the matter. 10
(4) The application lapses if the applicant has not, within 6 months after 11
the applicant has been informed by the commission under subsection (3)-- 12
(a) taken any action in relation to the application; or 13
(b) discontinued the application. 14
(5) Before an order is made under section 222,115 the parties may-- 15
(a) seek further conciliation of the matter; or 16
(b) settle the matter. 17
(6) The chief commissioner may delegate the functions of the 18
commission under this section to the registrar or an assistant registrar. 19
to consider in deciding if dismissal is harsh, unjust or 20
What
unreasonable 21
220. In deciding whether a dismissal was harsh, unjust or unreasonable, 22
the commission must consider-- 23
(a) whether the employee was notified of the reason for dismissal; 24
and 25
(b) whether the dismissal related to-- 26
(i) the operational requirements of the employer's undertaking, 27
establishment or service; or 28
115 Section 222 (Remedies and sanctions for unlawful dismissal)
s 221 169 s 222
Workplace Relations
(ii) the employee's conduct, capacity or performance; and 1
(c) if the dismissal relates to the employee's conduct, capacity or 2
performance-- 3
(i) whether the employee had been warned about the conduct, 4
capacity or performance; or 5
(ii) whether the employee was given an opportunity to respond 6
to the allegation about the conduct, capacity or performance; 7
and 8
(d) any other matters the commission considers relevant. 9
nus of proof 10
O
221. The onus is on-- 11
(a) for an application that alleges the dismissal was unlawful because 12
it was harsh, unjust or unreasonable--the employee to prove the 13
dismissal was harsh, unjust or unreasonable; or 14
(b) for an application that alleges the dismissal was unlawful because 15
it was for an invalid reason--the employer to prove the dismissal 16
was not for an invalid reason. 17
and sanctions for unlawful dismissal 18
Remedies
222.(1) If the commission is satisfied an employer unlawfully dismissed 19
an employee, it may order-- 20
(a) the employee be reinstated, on conditions at least as favourable as 21
the conditions on which the employee was employed immediately 22
before dismissal, by the employer-- 23
(i) reappointing the employee to the position in which the 24
employee was employed immediately before dismissal; or 25
(ii) appointing the employee to another position; or 26
(b) if the commission considers reinstatement would be 27
inappropriate--the employer pay the employee an amount of 28
compensation decided by the commission. 29
(2) If the commission orders the employee be reinstated, it may also-- 30
s 222 170 s 222
Workplace Relations
(a) make an order it considers necessary to maintain the continuity of 1
the employee's employment; and 2
(b) order the employer to pay the employee the remuneration lost, or 3
likely to have been lost, by the employee because of the dismissal, 4
after taking into account any employment benefits or wages 5
received by the employee since the dismissal; and 6
(c) order the employee to repay any amount paid to the employee by 7
or for the employer on the dismissal. 8
(3) When deciding the amount of compensation payable under 9
subsection (1)(b), the commission-- 10
(a) must not award an amount that is more than the remuneration the 11
employer would have been liable to pay the employee for the 12
6 months immediately after the dismissal, paid at the rate the 13
employee received immediately before the dismissal; and 14
(b) may take into account any amount paid to the employee by or for 15
the employer on the dismissal. 16
(4) The commission must not make an order under subsection (1) or (2) 17
unless, considering all the circumstances of the matter, it is satisfied the 18
remedy ordered is appropriate. 19
(5) If satisfied an employer has dismissed an employee for an invalid 20
reason, the commission may (in addition to an order under subsections (1) 21
and (2)) order the employer to pay the employee an amount of not more 22
than the monetary value of 135 penalty units. 23
(6) Neither section 219116 nor this section limits the commission's power 24
to make an interim or interlocutory order. 25
(7) To avoid doubt, an order under subsection (1)(b), (2)(b) or (c), or (5) 26
may allow payment to be made in specified instalments. 27
(8) In this section-- 28
"circumstances", for an application alleging the dismissal was harsh, 29
unjust or unreasonable, includes-- 30
(a) if raised by the employer--the viability of the employer's 31
116 Section 219 (Conciliation before application heard)
s 223 171 s 225
Workplace Relations
undertaking, establishment or service if the order were made; and 1
(b) the length of the employee's employment with the employer. 2
orders if employer fails to reinstate 3
Further
223.(1) If an employer wilfully fails to comply with an order to reinstate 4
an employee, the commission may-- 5
(a) further order the employer to pay the employee-- 6
(i) an amount of not more than the monetary value of 7
50 penalty units; and 8
(ii) an amount as remuneration for lost wages; and 9
(b) make further orders until the employer complies with the order 10
under section 222. 11
(2) This section does not affect another provision of this Act allowing a 12
proceeding to be taken against the employer. 13
of order on leave 14
Effect
224. If the commission makes an order under section 222(2)(a),117 the 15
interruption to the employee's continuity of employment or service caused 16
by the dismissal must be disregarded when calculating the employee's 17
entitlement to annual, sick or long service leave. 18
osts 19
C
225.(1) The commission may order a party to an application under 20
section 218118 to pay costs incurred by another party if satisfied the party-- 21
(a) made the application frivolously, vexatiously or without 22
reasonable cause; or 23
(b) caused costs to be incurred by the other party because of an 24
unreasonable act or omission connected with the conduct of the 25
117 Section 222 (Remedies and sanctions for unlawful dismissal)
118 Section 218 (Application to remedy unlawful dismissal)
s 226 172 s 226
Workplace Relations
application. 1
(2) An application for an order for costs must be made within 21 days 2
after-- 3
(a) the commission decides the application; or 4
(b) the application is discontinued or lapses. 5
(3) In this section-- 6
"costs" includes legal and professional costs and disbursements and 7
witness expenses, whether or not the commission has certified under 8
section 350.119 9
PART 3--REQUIREMENTS FOR DISMISSAL 10
of dismissal or compensation 11
Notice
226.(1) An employer may dismiss an employee only if the employee-- 12
(a) has been-- 13
(i) given the period of notice required by subsection (2); or 14
(ii) paid compensation; or 15
(b) engages in misconduct of a type that would make it unreasonable 16
to require the employer to continue the employment during the 17
notice period. 18
(2) The minimum period of notice is-- 19
(a) if the employee's continuous service is-- 20
(i) not more than 1 year--1 week; and 21
(ii) more than 1 year but not more than 3 years--2 weeks; and 22
(iii) more than 3 years but not more than 5 years--3 weeks; and 23
(iv) more than 5 years--4 weeks; and 24
119 Section 350 (Costs)
s 226 173 s 226
Workplace Relations
(b) increased by 1 week if the employee-- 1
(i) is over 45 years old; and 2
(ii) has completed at least 2 years of continuous service with the 3
employer. 4
(3) A regulation may prescribe matters that must be disregarded when 5
working out continuous service under subsection (2). 6
(4) The compensation must at least equal the total of the amounts the 7
employer would have been liable to pay the employee if the employee's 8
employment had continued until the end of the required notice period. 9
(5) The total must be worked out on the basis of-- 10
(a) the ordinary hours worked by the employee; and 11
(b) the amounts payable to the employee for the hours, including (for 12
example) allowances, loadings and penalties; and 13
(c) any other amounts payable under the employee's employment 14
contract. 15
(6) If an employer dismisses an employee, to whom subsection (1)(a) 16
applies, without giving the required notice or paying the required 17
compensation-- 18
(a) on an application under section 218120 --the commission may 19
order the employer to pay the employee the compensation that the 20
employer was required to pay under subsection (4); or 21
(b) otherwise--a magistrate may order the employer to pay the 22
employee the compensation that the employer was required to pay 23
under subsection (4). 24
(7) An application for an order under subsection (6)(b) may be made 25
by-- 26
(a) an employee who has been dismissed; or 27
(b) with the employee's consent--an organisation whose rules entitle 28
it to represent the employee's industrial interests; or 29
(c) an inspector. 30
120 Section 218 (Application to remedy unlawful dismissal)
s 227 174 s 227
Workplace Relations
(8) The application must be made within 6 years after the day on which 1
the employee is dismissed. 2
(9) A regulation may exclude from the operation of this section 3
dismissals happening in specified circumstances that relate to the transfer of 4
the employer's business. 5
giving effect to articles 12 and 13 of Convention 6
Orders
227.(1) The commission may make an order giving effect to the 7
requirements about the dismissal of employees under-- 8
(a) article 12 of the Termination of Employment Convention, as far 9
as it is relates to a severance allowance or other separation 10
benefits; or 11
(b) article 13 of the Termination of Employment Convention. 12
(2) When making an order giving effect to article 13, the commission 13
must limit the order's application to cases where an employer decides to 14
dismiss at least a specified number of employees (of at least 15). 15
(3) An employer must not dismiss an employee in contravention of an 16
order under subsection (1). 17
(4) If an employer dismisses an employee in contravention of the order, 18
the commission may-- 19
(a) make any of the orders it may make under section 222(1) 20
or (2);121 or 21
(b) order the employer to pay the employee an amount of not more 22
than the monetary value of 135 penalty units. 23
(5) The commission may make an order under this section only if it has 24
received an application from-- 25
(a) an employee; or 26
(b) an organisation whose rules entitle it to represent the employee's 27
industrial interests. 28
(6) An application for an order under subsection (4) must be made 29
121 Section 222 (Remedies and sanctions for unlawful dismissal)
s 228 175 s 228
Workplace Relations
within-- 1
(a) 21 days after the dismissal takes effect; or 2
(b) a further period the commission allows on an application made 3
during or after the 21 days. 4
if employer does not consult about proposed dismissals 5
Orders
228.(1) An employer who decides to dismiss 15 or more employees for 6
an economic, technological or structural reason must, as soon as practicable 7
after making the decision, and before dismissing any of the employees-- 8
(a) notify each employee organisation, of which any of the 9
employees is a member, of-- 10
(i) the dismissals; and 11
(ii) the reasons for the dismissals; and 12
(iii) the number and categories of employees; and 13
(iv) the time when, or the period over which, the employer 14
intends to carry out the dismissals; and 15
(b) give each organisation an opportunity to consult with the 16
employer on ways to-- 17
(i) avoid or minimise the dismissals; and 18
(ii) minimise the adverse effects of the dismissals (for example, 19
by finding alternative employment). 20
(2) The commission may make the orders it considers appropriate to put 21
employees dismissed in contravention of subsection (1), and their 22
organisations, in the same position (as nearly as can be done) as if the 23
employer had-- 24
(a) if subsection (1)(a) was contravened--informed the organisation; 25
and 26
(b) if subsection (1)(b) was contravened--given the organisation an 27
opportunity to consult. 28
(3) Subsections (1) and (2) do not apply to an organisation if the 29
employer could not reasonably be expected to have known (at the time of 30
the decision) that the organisation's rules entitled it to represent the industrial 31
s 229 176 s 229
Workplace Relations
interests of the dismissed employees. 1
(4) The commission may make an order only if it has received an 2
application from an employee or organisation that is to be affected by the 3
order. 4
(5) An application must be made within-- 5
(a) 21 days after the dismissal takes effect; or 6
(b) a further period the commission allows on an application made 7
during or after the 21 days. 8
must notify Commonwealth employment service of 9
Employer
proposed dismissals 10
229.(1) This section applies if an employer decides to dismiss 15 or 11
more employees for reasons of an economic, technological, structural or 12
similar nature. 13
(2) The employer may dismiss the employees only if the employer, as 14
soon as practicable after making the decision, notifies the Commonwealth 15
employment service of-- 16
(a) the dismissals; and 17
(b) the reasons for the dismissals; and 18
(c) the number and categories of employees; and 19
(d) the time when, or the period over which, the employer intends to 20
carry out the dismissals. 21
(3) If satisfied an employer has dismissed, or proposes to dismiss, an 22
employee contrary to subsection (2), the commission may make either or 23
both of the following orders-- 24
(a) an order imposing on the employer a penalty of not more than 25
16 penalty units; 26
(b) an order declaring the dismissal ineffective until the employer has 27
complied with subsection (2). 28
(4) An application for an order may be made by-- 29
(a) a dismissed employee; or 30
s 230 177 s 230
Workplace Relations
(b) an organisation whose rules entitle it to represent the employee's 1
industrial interests; or 2
(c) an inspector. 3
(5) An application must be made within-- 4
(a) 21 days after the dismissal takes effect; or 5
(b) a further period the commission allows on an application made 6
during or after the 21 days. 7
(6) The commission may order that a penalty, or part of a penalty, be 8
paid to any person who may have made the application (other than an 9
officer or employee of the State or a public service officer). 10
(7) Any part of the penalty that is ordered to be paid to the person must 11
first be paid to the person. 12
(8) The remainder of the penalty must then be paid to the consolidated 13
fund. 14
(9) A contravention of subsection (2) is not an offence. 15
(10) In this section-- 16
"Commonwealth employment service" means the Commonwealth 17
department or agency whose primary responsibility is helping 18
unemployed people to find work. 19
ART 4--OTHER DISMISSALS 20
P
dismissed in December, re-employed in January 21
Employee
230.(1) This section applies to an employee (other than a casual 22
employee within the meaning of the relevant industrial instrument) who-- 23
(a) is dismissed by an employer during December; and 24
(b) is re-employed by the employer before the end of the next 25
January; and 26
(c) was employed by the employer for a continuous period of at least 27
s 231 178 s 232
Workplace Relations
2 weeks immediately before being dismissed. 1
(2) The employer must pay the employee at the ordinary rate payable to 2
the employee immediately before the dismissal for the Christmas Day, 3
Boxing Day, and New Year's Day public holidays between the dismissal 4
and the re-employment. 5
(3) In this section-- 6
"dismiss" includes stand-down. 7
stand-down of employee 8
Permissible
231.(1) An employer may stand-down an employee without pay on a 9
day, or for part of a day, when the employee can not be usefully employed 10
because of something that happened-- 11
(a) for which the employer is not responsible; or 12
(b) over which the employer has no control. 13
(2) This section applies despite another provision of this Act or an 14
industrial instrument. 15
(3) This section does not apply to an apprentice or trainee. 16
ART 5--PROTECTION OF INJURED EMPLOYEES 17
P
for pt 5 18
Definitions
232. In this part-- 19
"dismiss" an injured employee includes a case where-- 20
(a) an unreasonable employment condition designed to make the 21
employee leave the employment is imposed on the employee; and 22
(b) the employee leaves the employment. 23
"injured employee" means an employee who receives an injury. 24
"injury" means an injury within the meaning of the Workers' 25
s 233 179 s 234
Workplace Relations
Compensation Act 1990 or WorkCover Act 1996 for which workers' 1
compensation is payable under that Act. 2
to be paid for the day employee injured 3
Wages
233.(1) An injured employee is entitled to be paid full wages for the day 4
when the injury happens. 5
(2) Subsection (1) applies despite an industrial instrument or 6
employment contract. 7
of injured employees 8
Reinstatement
234.(1) This section applies if an injured employee is dismissed because 9
of unfitness for employment in a position because of the injury. 10
(2) The employee may apply to the employer, within 21 days after the 11
dismissal, for reinstatement to the employee's former position. 12
(3) The employee must give the employer a doctor's certificate that 13
certifies the employee is fit for employment in the former position. 14
(4) If the employer fails to immediately reinstate the employee, the 15
following persons may apply to the commission for a reinstatement order-- 16
(a) the employee; 17
(b) an employee organisation of which the employee is a member, 18
with the employee's consent. 19
(5) If the commission is satisfied the employee is fit for employment in 20
the former position, the commission may order the employer to reinstate the 21
employee. 22
(6) The order may specify terms of reinstatement, including, for 23
example, the day the reinstatement is to take effect. 24
(7) The commission may order reinstatement even if the employee 25
applied to the employer to be reinstated more than 21 days after the 26
dismissal, if the commission considers it would be appropriate in the 27
circumstances. 28
(8) In this section-- 29
"former position" of an injured employee means, at the employee's 30
s 235 180 s 237
Workplace Relations
option-- 1
(a) the position from which the injured employee was dismissed; or 2
(b) if the employee was transferred to a less advantageous position 3
before dismissal--the position held by the employee when the 4
employee became unfit for employment. 5
an offence in certain cases 6
Dismissal
235.(1) An employer must not dismiss an injured employee, within 7
3 months after the employee becomes unfit, solely or mainly because the 8
employee is not fit for employment in a position because of the injury. 9
Maximum penalty--40 penalty units. 10
(2) This section applies to a dismissal after the commencement of this 11
section even if the employee became unfit before the commencement. 12
of employee's rights 13
Preservation
236.(1) This part does not affect another right of a dismissed employee 14
under an Act or law. 15
(2) This part can not be affected by a contract or agreement. 16
ART 6--GENERAL 17
P
does not limit other rights 18
Chapter
237. This chapter does not limit a right a person or organisation may 19
otherwise have to-- 20
(a) appeal against a dismissal; or 21
(b) have an industrial instrument or order about a dismissal made. 22
s 238 181 s 239
Workplace Relations
instruments and orders 1
Inconsistent
238. An industrial instrument or order that is inconsistent with an order 2
under this chapter does not apply to the extent the inconsistency 3
detrimentally affects the rights of employees concerned. 4
CHAPTER 6--INDUSTRIAL DISPUTES 5
ART 1--NOTICE OF INDUSTRIAL DISPUTE 6
P
of industrial dispute 7
Notice
239.(1) Subsection (2) applies if an industrial dispute-- 8
(a) exists between-- 9
(i) an employer organisation or employer; and 10
(ii) an employee organisation or employee; and 11
(b) remains unresolved after the parties have genuinely attempted to 12
settle the dispute. 13
(2) Each party to the dispute must immediately give notice of the dispute 14
to-- 15
(c) if the dispute exists within the city of Brisbane--the registrar; or 16
(d) elsewhere--the registrar or nearest magistrate. 17
(3) The notice-- 18
(a) may be given by letter, telex, fax, electronic mail, or other means 19
of written communication; and 20
(b) must state-- 21
(i) the names of the parties to the dispute; and 22
(ii) the place where the dispute exists; and 23
(iii) the subject matter of the dispute. 24
s 240 182 s 240
Workplace Relations
(4) If the Minister is aware an industrial dispute exists, the Minister may 1
notify a commissioner or the registrar of the dispute. 2
ART 2--ACTION FOR SETTLING INDUSTRIAL 3
P
DISPUTES 4
on industrial dispute 5
Action
240.(1) This section applies if-- 6
(a) notice of a dispute has been given by a party under 7
section 239(2);122 or 8
(b) notice of a dispute has been given by the Minister under 9
section 239(4) and a commissioner considers it is in the public 10
interest to take action under this section; or 11
(c) whether or not a notice has been given under section 239--a 12
commissioner considers it is in the public interest to take action 13
under this section. 14
(2) A commissioner may take the steps the commissioner considers 15
appropriate for the prevention or prompt settlement of the dispute, by-- 16
(a) conciliation in the first instance; and 17
(b) if the commissioner considers conciliation has failed and the 18
parties are unlikely to resolve the dispute--arbitration. 19
(3) Without limiting subsection (2), the commissioner may-- 20
(a) make orders, or give directions, of an interlocutory nature; or 21
(b) remit the dispute, or part of it, to a magistrate for-- 22
(i) hearing and decision; or 23
(ii) the exercise of the magistrate's powers under this Act for the 24
prevention or prompt settlement of the dispute; or 25
122 Section 239 (Notice of industrial dispute)
s 240 183 s 240
Workplace Relations
(c) exercise the commission's powers under section 291 123 (whether 1
or not application under that section has been made) to order an 2
interim injunction; or 3
(d) make another order or exercise another power the commissioner 4
considers appropriate for the prevention or prompt settlement of 5
the dispute. 6
(4) A magistrate who receives a notice under section 239(2)-- 7
(a) must immediately notify the registrar of the particulars stated in 8
the notice and, if the magistrate considers it appropriate, call a 9
compulsory conference under section 243;124 and 10
(b) if the parties agree--must immediately hear and decide the 11
dispute or exercise the magistrate's powers for the prevention or 12
prompt settlement of the dispute; and 13
(c) may or, if directed by the commission to do so, must remit the 14
dispute to the commission at any stage of a proceeding for the 15
dispute; and 16
(d) must keep the registrar informed of the progress and outcome of 17
a proceeding for the dispute. 18
(5) A magistrate to whom a matter is remitted by a commissioner-- 19
(a) must immediately hear and decide the dispute or exercise the 20
magistrate's powers for the prevention or prompt settlement of 21
the dispute; and 22
(b) may, or, if directed by the commissioner to do so, must remit the 23
dispute to the commissioner at any stage of a proceeding for the 24
dispute; and 25
(c) must keep the commissioner informed of the progress and 26
outcome of a proceeding for the dispute. 27
(6) For a proceeding for the dispute-- 28
(a) the commissioner or magistrate may name a party to the dispute 29
as having carriage of the proceeding; and 30
123 Section 291 (Power to grant injunctions)
124 Section 243 (Compulsory conference)
s 241 184 s 242
Workplace Relations
(b) the party named has the carriage of the proceeding accordingly. 1
(7) This section does not affect the operation of an industrial instrument 2
that-- 3
(a) imposes a duty on a party to the instrument in relation to 4
industrial disputes; or 5
(b) confers a power or imposes a duty on a magistrate. 6
by consent 7
Recommendation
241.(1) This section applies if-- 8
(a) the commission is exercising powers of conciliation for a 9
particular dispute; and 10
(b) all the parties ask the commission to conduct a hearing and make 11
recommendations about particular aspects of the dispute on which 12
they are unable to reach agreement (which may be all aspects of 13
the dispute); and 14
(c) the commission is satisfied that all parties-- 15
(i) have made a genuine attempt to agree about those aspects of 16
the dispute; and 17
(ii) have agreed to comply with the commission's 18
recommendation. 19
(2) The commission must conduct a hearing and make recommendations 20
about those aspects of the dispute. 21
(3) This section does not prevent the commission from making 22
recommendations in other circumstances. 23
by commissioner or magistrate 24
Mediation
242. A commissioner or magistrate may act as mediator in an industrial 25
cause, whether or not it is within the jurisdiction of the commission or a 26
magistrate-- 27
(a) on the request of the parties directly involved in the cause; or 28
(b) if it appears mediation is desirable in the public interest. 29
s 243 185 s 244
Workplace Relations
conference 1
Compulsory
243.(1) This section applies if a commissioner or magistrate taking action 2
under section 240125 considers that holding a conference is desirable to 3
prevent or settle the industrial dispute. 4
(2) The commissioner or magistrate may summons a person to attend a 5
conference at a stated time and place. 6
(3) A person may be summoned even though not directly involved in the 7
dispute, if the commissioner or magistrate considers the person's presence 8
would be conducive to the prevention or prompt settlement of the dispute. 9
(4) A person summoned must-- 10
(a) attend the conference at the stated time and place; and 11
(b) continue to attend as directed by the presiding commissioner or 12
magistrate. 13
Maximum penalty--40 penalty units. 14
(5) The person is entitled to be paid by the State an amount certified by 15
the commissioner or magistrate as reasonable compensation for the 16
person's expenses and loss of time. 17
(6) At the discretion of the commissioner or magistrate, a conference 18
may be held-- 19
(a) in public or private; or 20
(b) partly in public and partly in private. 21
PART 3--BALLOTS 22
ballot on strike action 23
Secret
244.(1) This section applies if-- 24
(a) a strike happens; or 25
125 Section 240 (Action on industrial dispute)
s 245 186 s 245
Workplace Relations
(b) the commission, or a person applying to the commission, 1
considers a strike is likely to happen. 2
(2) The commission may act under subsection (4)-- 3
(a) of its own initiative; or 4
(b) on application by an employer or employer organisation; or 5
(c) on application by or on behalf of 5% of the employees engaged in 6
or on the calling, enterprise, establishment or project concerned, 7
or by 250 of the employees, whichever is less, but being, in any 8
case, at least 4. 9
(3) The commission must act under subsection (4)-- 10
(a) on application by an employee organisation; or 11
(b) if directed by the Minister. 12
(4) To find out the number of employees or members who favour the 13
strike, the commission may direct the registrar or a magistrate to conduct a 14
secret ballot126 of-- 15
(a) the employees engaged in or on the calling, enterprise, 16
establishment or project concerned; or 17
(b) the members of an employee organisation engaged in or on the 18
calling, enterprise, establishment or project concerned. 19
(5) The registrar or magistrate must publish the result of the secret ballot 20
in a newspaper circulating in the locality concerned. 21
of ballot adverse to strike 22
Effect
245.(1) Subsection (2) applies if-- 23
(a) when a secret ballot was conducted under section 244(4)127-- 24
(i) a strike exists; or 25
(ii) a strike appeared likely to happen, and happens for the same 26
126 See section 301 (Conducting a secret ballot) for the way a secret ballot is
conducted.
127 Section 244 (Secret ballot on strike action)
s 246 187 s 246
Workplace Relations
issue within 1 month after the ballot result is published under 1
section 244(5); and 2
(b) the ballot shows that a majority of employees or members who 3
voted in the ballot is not in favour of the strike. 4
(2) The registrar or magistrate who conducted the ballot must advertise a 5
date (the "end date"), not more than 7 days after the date of publication, on 6
or before which the employees or members who are on strike must 7
discontinue the strike. 8
(3) The advertisement-- 9
(a) must be in a newspaper circulating in the locality concerned; and 10
(b) may be included in the advertisement published under 11
section 244(5). 12
(4) The employees or members must discontinue the strike on or before 13
the end date. 14
(5) An employee or member who does not is taken to have terminated, 15
from the end date, the employment in which the employee or member was 16
engaged when the strike commenced, unless the employee or member has a 17
reasonable excuse. 18
(6) Disagreement by a person with the result of the ballot is not a 19
reasonable excuse. 20
ART 4--INDUSTRIAL ACTION 21
P
in industrial action 22
Nonparticipation
246.(1) An employee organisation or someone else (whether or not an 23
officer, employee or member of the organisation) must not-- 24
(a) incite, advise or encourage a person to act to the prejudice of an 25
employee who did not take part in a strike; or 26
(b) impose or threaten to impose a penalty, forfeiture or disability on 27
an employee, or member of an employee organisation, because 28
the employee or member did not take part in a strike. 29
s 247 188 s 248
Workplace Relations
Maximum penalty--40 penalty units. 1
(2) An employer organisation or someone else (whether or not an officer, 2
employee or member of the organisation) must not-- 3
(a) incite, advise or encourage a person to act to the prejudice of an 4
employer who did not take part in a lockout; or 5
(b) impose or threaten to impose a penalty, forfeiture or disability on 6
an employer, or member of an employer organisation, because 7
the employer or member did not take part in a lockout. 8
Maximum penalty--40 penalty units. 9
(3) If, in a proceeding for an offence under subsection (1)(b) or (2)(b), it 10
is proved that an imposition or threat was made on or to a person who did 11
not take part in a strike or lockout, it is to be presumed that the reason for 12
the imposition or threat is the failure to take part, unless the contrary is 13
proved. 14
against agent's unauthorised actions 15
Indemnity
247. An organisation or association of persons is not liable for anything 16
said or done by its agent, during or in connection with industrial action, if-- 17
(a) the agent acted without the knowledge of the governing body of 18
the organisation or association; and 19
(b) the governing body could not, by the exercise of reasonable 20
diligence, have prevented the action. 21
for strikes 22
Payments
248.(1) An employer must not pay an employee for a period when the 23
employee engages in a strike. 24
(2) An employee must not accept a payment from an employer who, by 25
making the payment, contravenes subsection (1).128 26
(3) An employee must not-- 27
128 See section 249 for the orders the commission may make for a contravention of
this section.
s 248 189 s 248
Workplace Relations
(a) make a claim for an employer to pay the employee for a period 1
when the employee engages in a strike; or 2
(b) organise or engage in, or threaten to organise or engage in, a strike 3
against an employer with intent to coerce the employer to make 4
the payment. 5
(4) An employee organisation, or an officer, member or employee of the 6
organisation, must not-- 7
(a) make a claim for an employer to pay an employee for a period 8
when the employee engages in a strike; or 9
(b) organise or engage in, or threaten to organise or engage in, a strike 10
against an employer with intent to coerce the employer to make 11
the payment. 12
(5) For subsection (4), action is taken to have been done by an 13
organisation if it is done by-- 14
(a) the organisation's management committee; or 15
(b) an officer, employee or agent of the organisation acting in that 16
capacity; or 17
(c) a member or group of members of the organisation acting under 18
the organisation's rules; or 19
(d) a member of the organisation, who performs the function of 20
dealing with an employer on behalf of the member and other 21
members of the organisation, acting in that capacity. 22
(6) Subsection (5)(c) and (d) does not apply if any of the following 23
persons has taken reasonable steps to prevent the action-- 24
(a) the organisation's management committee; 25
(b) a person authorised by the committee; 26
(c) an officer of the organisation. 27
(7) A contravention of subsection (3) or (4) is not an offence.129 28
129 See section 249 for the orders the commission may make for a contravention of
this section.
s 249 190 s 250
Workplace Relations
the commission may make 1
Orders
249.(1) An application may be made to the commission for orders under 2
this section for a contravention of section 248.130 3
(2) The application may be made by-- 4
(a) the Minister; or 5
(b) a person who has an interest in the matter; or 6
(c) for a contravention of section 248(3) or (4)--the employer; or 7
(d) someone else prescribed under a regulation. 8
(3) A regulation prescribing persons for subsection (2)(d) may limit its 9
application to stated circumstances. 10
(4) The commission may, if it considers it appropriate in all the 11
circumstances, make 1 or more of the following orders-- 12
(a) an order imposing on a person who contravenes section 248 a 13
penalty of not more than 135 penalty units; 14
(b) an order requiring a person who contravenes section 248(3) or (4) 15
to pay an employer compensation of the amount the commission 16
considers appropriate; 17
(c) an injunction (including an interim injunction), and any other 18
order, the commission considers necessary to stop the 19
contravention or remedy its effects; 20
(d) another consequential order. 21
(5) The commission must not make an order requiring compensation to 22
be paid to an employer who contravenes section 248(1) for the 23
contravention. 24
not to deal with claims for payments for strikes 25
Commission
250.(1) The commission can not deal with a claim for the making of a 26
payment to employees for a period when the employees engage in a strike. 27
(2) Subsection (1) applies to a claim for a period before or after-- 28
130 Section 248 (Payments for strikes)
s 251 191 s 253
Workplace Relations
(a) the making of the claim; or 1
(b) the commencement of this section. 2
to refuse to work if imminent health or safety risk 3
Right
251. Nothing in this Act prevents an employee from refusing to perform 4
work if-- 5
(a) the refusal is based on a reasonable concern by the employee 6
about an imminent risk to his or her health or safety; and 7
(b) the employee does not unreasonably contravene a direction of his 8
or her employer to perform other available work (whether at the 9
same or another workplace) that is safe and appropriate for the 10
employee to perform. 11
HAPTER 7--INDUSTRIAL TRIBUNALS AND 12
C
REGISTRAR 13
ART 1--INDUSTRIAL COURT 14
P
Division 1--Industrial Court continued 15
16
Continuance
252. The Industrial Court (the "court"), as formerly established as a 17
superior court of record in Queensland, is continued in existence. 18
2--President 19
Division
of president 20
Appointment
253.(1) The Governor in Council may, by industrial gazette notice, 21
appoint a Supreme Court judge as president of the court. 22
s 254 192 s 255
Workplace Relations
(2) The president is appointed for the term specified in the notice. 1
(3) The president has, in addition to the president's judicial functions, 2
overall administrative control of the commission and the registrar's office. 3
president holds office 4
When
254.(1) The president holds office until-- 5
(a) the president's term of appointment ends; or 6
(b) the president turns 70; or 7
(c) the president stops being a Supreme Court judge. 8
(2) However, if the president stops holding office while hearing a matter, 9
the Governor in Council may, without reappointing the person as president, 10
continue the person in office for the time necessary to enable the hearing to 11
be completed. 12
(3) The person continued in office may exercise the jurisdiction and 13
powers of the court necessary or convenient for the hearing to be completed. 14
president 15
Acting
255.(1) This section applies if the president temporarily can not perform 16
the functions of office. 17
(2) The Governor in Council may, by industrial gazette notice, appoint a 18
person who is qualified to be appointed as a Supreme Court judge to act as 19
president. 20
(3) The person, if not a Supreme Court judge, is entitled to the 21
remuneration payable to a Supreme Court judge while acting as president. 22
(4) A person who has acted as president may attend sittings of the court 23
for the purpose of giving a decision in, or otherwise completing, a 24
proceeding that was heard by the person while the person was acting as 25
president. 26
(5) A decision given under subsection (4) is taken to be the president's 27
decision in the proceeding. 28
s 256 193 s 258
Workplace Relations
3--Jurisdiction and powers of the court 1
Division
of court 2
Constitution
256.(1) The court is constituted by the president sitting alone. 3
(2) A Full Industrial Court ("full court") is constituted by the president 4
and 2 or more commissioners sitting together. 5
jurisdiction 6
President's
257. Unless otherwise required by this or another Act, the president 7
sitting alone has all the jurisdiction and powers of the court. 8
jurisdiction 9
Court's
258.(1) The court has jurisdiction-- 10
(a) to perform all functions and exercise all powers prescribed for the 11
court by this or another Act; and 12
(b) to hear and decide the following matters-- 13
(i) cases stated to it by the commission; 14
(ii) appeals from decisions of the commission; 15
(iii) appeals from an industrial magistrate's decision in a 16
proceeding for-- 17
(A) an offence against this Act; or 18
(B) recovery of damages, or other amounts, under this Act 19
or under an industrial instrument or a permit; 20
(iv) proceedings for cancelling or suspending registration of an 21
organisation; 22
(v) appeals from decisions of, and references by, the registrar on 23
matters of law or procedure; 24
(vi) a proceeding for an offence against this Act, other than an 25
offence for which jurisdiction is expressly conferred on a 26
magistrate; 27
s 259 194 s 259
Workplace Relations
(vii) a proceeding for an offence under section 243, 440, 443 1
or 456;131 and 2
(c) to punish contempts of the court; and 3
(d) to exercise the jurisdiction and powers of the Supreme Court to 4
ensure, by prerogative order or other appropriate process, that the 5
commission and magistrates-- 6
(i) exercise their jurisdictions according to law; and 7
(ii) do not exceed their jurisdictions. 8
(2) A matter mentioned in subsection (1)(b)(iv), (vi) or (vii) must be 9
heard and decided by a full court. 10
(3) In a proceeding, the court may-- 11
(a) make the decisions it considers appropriate, irrespective of 12
specific relief claimed or applied for by a party; and 13
(b) give directions about the hearing of a matter within the court's 14
jurisdiction. 15
(4) The exercise of the court's jurisdiction for persons under 21 years is 16
subject to the Vocational Education, Training and Employment Act 1991. 17
(5) A provision of this or another Act does not limit, by implication, the 18
court's jurisdiction. 19
jurisdiction is exclusive 20
Court's
259.(1) The court's decision-- 21
(a) is final and conclusive; and 22
(b) can not be impeached for informality or want of form; and 23
(c) can not be appealed against, reviewed, quashed or invalidated in 24
another court. 25
(2) The court's jurisdiction is exclusive of another court's jurisdiction and 26
an injunction or prerogative order can not be issued, granted or made in 27
131 Section 243 (Compulsory conference), 440 (Contempt by witness),
443 (Obstructing officers) or 456 (Confidential material tendered in evidence)
s 260 195 s 262
Workplace Relations
relation to a proceeding in the court within its jurisdiction. 1
(3) Subsection (1) is subject to section 359.132 2
nature of court's interpretation 3
Binding
260. The court's interpretation of a provision of this Act, an industrial 4
instrument or a permit is final and conclusive and binds-- 5
(a) the commission; and 6
(b) magistrates; and 7
(c) organisations and persons who are subject to this Act, or bound 8
by the industrial instrument or permit. 9
may refuse to proceed 10
Court
261.(1) This section applies if a proceeding before the court relates to an 11
industrial instrument that exists or is sought in the proceeding. 12
(2) The court may refuse to hear and decide the proceeding if any of the 13
employees who are, or would be, bound by the instrument are-- 14
(a) involved in an industrial dispute; or 15
(b) contravening-- 16
(i) this Act, a decision, or a recommendation under 17
section 241;133 or 18
(ii) the Industrial Organisations Act 1996. 19
(3) Subsection (2) applies whether or not the employees are employees 20
whose employment may be affected by the decision of the proceeding. 21
of full industrial court 22
Decision
262.(1) In a proceeding in the full court, the court's decision is the 23
decision of the majority of its members. 24
132 Section 359 (Appeal from court to Court of Appeal)
133 Section 241 (Recommendation by consent)
s 263 196 s 264
Workplace Relations
(2) However, the president's opinion is taken to be the decision of the full 1
court if-- 2
(a) the question to be decided is about-- 3
(i) the court's jurisdiction; or 4
(ii) the interpretation of a provision of this or another Act, or of a 5
law, industrial instrument or permit; or 6
(b) its members are evenly divided on the question to be decided. 7
Division 4--President's annual report 8
annual report 9
President's
263.(1) As soon as practicable after the end of each financial year, the 10
president must prepare and give to the Minister a report for the year on-- 11
(a) the operation of this Act; and 12
(b) in particular, the working of the court, commission and registrar's 13
office. 14
(2) The Minister must table a copy of the report in the Legislative 15
Assembly within 14 sitting days after the Minister receives it. 16
5--President's advisory council 17
Division
of advisory council 18
Establishment
264.(1) The president's advisory council (the "advisory council") is to 19
be established. 20
(2) The advisory council is to be made up of a maximum of 9 members. 21
(3) The advisory council consists of-- 22
(a) the president; and 23
(b) the chief commissioner; and 24
(c) the chief executive; and 25
(d) employers, or officers or employees of employer organisations; 26
s 265 197 s 268
Workplace Relations
and 1
(e) employees, or officers or employees of employee organisations; 2
and 3
(f) persons who have knowledge of, or experience in, industrial 4
relations. 5
(4) The members mentioned in subsection (3)(d) to (f) (the "appointed 6
members") are to be appointed by the Minister after consultation with the 7
president. 8
of office 9
Term
265.(1) The appointment of a member is for the term (not longer than 10
3 years) stated in the notice of the member's appointment.(2) An appointed 11
member may resign the appointment at any time, by signed notice given to 12
the Minister. 13
of appointed members 14
Remuneration
266. An appointed member is entitled to the allowances and reasonable 15
expenses approved by the Minister. 16
of advisory council 17
Functions
267. The advisory council's functions are-- 18
(a) to discuss matters relating to the efficiency and effectiveness of 19
the commission; and 20
(b) to advise the president in relation to those matters. 21
of advisory council 22
Meetings
268. Meetings of the advisory council are to be-- 23
(a) called by the president; and 24
(b) held when the president decides, but at least 3 times a year. 25
s 269 198 s 272
Workplace Relations
PART 2--INDUSTRIAL RELATIONS COMMISSION 1
1--Continuance, composition and constitution 2
Division
3
Continuance
269. The Queensland Industrial Relations Commission (the 4
"commission"), as formerly established as a court of record, is continued in 5
existence. 6
7
Composition
270.(1) The commission consists of the following members of the 8
commission-- 9
(a) at least 6 industrial commissioners ("commissioners"), 1 of 10
whom is the chief industrial commissioner (the "chief 11
commissioner"); 12
(b) at least 1 enterprise commissioner. 13
(2) The commission's jurisdiction, or existence, is not affected by a 14
vacancy in any office of the commission. 15
16
Constitution
271.(1) The commission is constituted by a member sitting alone to 17
exercise the commission's jurisdiction. 18
(2) A full bench of the commission ("full bench") is constituted by 3 or 19
more commissioners sitting together. 20
(3) More than 1 full bench or commission may sit at the same time. 21
2--Members of the commission 22
Division
of members 23
Appointment
272.(1) The Governor in Council may appoint a person-- 24
s 273 199 s 273
Workplace Relations
(a) as a commissioner--by commission; or 1
(b) as an enterprise commissioner-- 2
(i) if the person is not already a commissioner--by 3
commission; or 4
(ii) if the person is already a commissioner--by gazette notice. 5
(2) The appointment is for-- 6
(a) for a person appointed by commission-- 7
(i) initially--a term of 7 years; and 8
(ii) after the initial term--further terms of not more than 7 years 9
each; or 10
(b) for a person who holds a commission and is subsequently 11
appointed by gazette notice--a term not longer than the remainder 12
of the term of appointment under the commission. 13
member holds office 14
When
273.(1) A member holds office until-- 15
(a) the member's term of appointment ends; or 16
(b) the member turns 70; or 17
(c) the member resigns by signed notice given to the Governor; or 18
(d) the member stops being a member because of section 276(2);134 19
or 20
(e) the member is removed from office under section 277.135 21
(2) However, if a member stops holding office because of 22
subsection (1)(a) or (b) while investigating or hearing a matter, the 23
Governor in Council may, without reappointing the person as a member, 24
continue the person in office for the time necessary to enable the 25
investigation or hearing to be completed. 26
134 Section 276 (Restrictions etc. on appointment)
135 Section 277 (Removal of members from office)
s 274 200 s 276
Workplace Relations
(3) The person continued in office may exercise the jurisdiction and 1
powers of the commission constituted by a member of the commission. 2
chief commissioner 3
Acting
274.(1) This section applies if the chief commissioner temporarily can 4
not perform the functions of the office. 5
(2) The president may nominate another commissioner to perform the 6
chief commissioner's functions. 7
members 8
Acting
275. The Governor in Council may, by industrial gazette notice, appoint a 9
person to be an acting member of the commission. 10
etc. on appointment 11
Restrictions
276.(1) The following persons can not be appointed as members of the 12
commission-- 13
(a) a member of the Executive Council or Legislative Assembly; 14
(b) a person who-- 15
(i) acts as director of a corporation engaged in a calling; or 16
(ii) acts as auditor of a corporation engaged in a calling or of a 17
business; or 18
(iii) participates in any capacity in the management of a 19
corporation engaged in a calling; or 20
(iv) participates in any capacity in the management of a business. 21
(2) A person stops being a member on becoming-- 22
(a) a member of the Executive Council or Legislative Assembly; or 23
(b) a person mentioned in subsection (1)(b), other than with the 24
Minister's written approval. 25
s 277 201 s 279
Workplace Relations
of members from office 1
Removal
277.(1) The Governor may remove a member appointed by commission 2
for incapacity or misbehaviour on an address of the Legislative Assembly. 3
(2) If a member holds a commission and a subsequent appointment by 4
gazette notice, the Governor in Council may end the subsequent 5
appointment at any time by gazette notice. 6
responsibilities of chief commissioner 7
Administrative
278.(1) The chief commissioner, subject to the president's overall 8
administrative control of the commission, must-- 9
(a) administer the commission; and 10
(b) organise and allocate the work of the commission. 11
(2) In doing so, the chief commissioner must-- 12
(a) strive to ensure the expeditious resolution of matters before the 13
commission; and 14
(b) consider ways of enhancing the efficiency and effectiveness of the 15
commission; and 16
(c) consider the needs of the users of the commission's services and 17
the desirability of providing a quality service to users. 18
(3) The chief commissioner must regularly consult with the president 19
about the matters mentioned in subsection (2). 20
(4) A member of the commission must comply with a direction of the 21
president or chief commissioner about-- 22
(a) the administration of the commission; and 23
(b) the organisation and allocation of the commission's work. 24
3--The commission 25
Division
jurisdiction 26
Commission's
279.(1) The commission has jurisdiction to hear and decide the following 27
matters-- 28
s 279 202 s 279
Workplace Relations
(a) all questions of law or fact brought before it or that it considers 1
expedient to hear and decide for the regulation of a calling; 2
(b) all questions-- 3
(i) arising out of an industrial matter; or 4
(ii) involving the determination of the rights and duties of a 5
person in relation to an industrial matter; or 6
(iii) it considers expedient to hear and decide about an industrial 7
matter; 8
(c) an industrial dispute, referred to the commission by a 9
commissioner who has held a conference under this Act at which 10
no agreement has been reached; 11
(d) all appeals properly made to it under this or another Act; 12
(e) all matters committed to the commission by this or another Act. 13
(2) The commission has jurisdiction to regulate a calling by an award-- 14
(a) on application by an organisation, an employer, or 20 employees 15
(who are not members of an employee organisation and not 16
covered by an award) in a calling; or 17
(b) on application by the Minister; or 18
(c) of its own initiative. 19
(3) The commission has jurisdiction to hold an inquiry into or about an 20
industrial matter and to report the result of the inquiry, and make 21
recommendations, to the Minister-- 22
(a) on application by an interested person; or 23
(b) by direction of the Minister; or 24
(c) of its own initiative. 25
(4) The commission has jurisdiction to consolidate into 1 award all 26
awards binding or affecting an employer or class of employer in a calling, 27
or the members of an organisation employed by the same employer or class 28
of employer-- 29
(a) on application by an organisation or an employer; or 30
(b) by direction of the Minister. 31
s 280 203 s 282
Workplace Relations
(5) When exercising its jurisdiction under subsection (4), the 1
commission may make the amendments of the award it considers expedient 2
to make to effect the consolidation. 3
(6) No provision of this or another Act limits, by implication, the 4
commission's jurisdiction. 5
(7) In this section-- 6
"class" includes a section of a class. 7
to take account of Anti-Discrimination Act 8
Commission
280. In exercising its jurisdiction, the commission must take account of 9
the Anti-Discrimination Act 1991 relating to discrimination in relation to 10
employment. 11
jurisdiction is exclusive 12
Commission's
281. The original and appellate jurisdiction conferred on the commission 13
by this Act is exclusive of the jurisdiction of the Supreme Court or another 14
court or tribunal, unless otherwise prescribed under this Act. 15
may refuse to proceed 16
Commission
282.(1) This section applies if a proceeding before the commission 17
relates to an industrial instrument that exists or is sought in the proceeding. 18
(2) The commission may refuse to hear and decide the proceeding if any 19
of the employees who are, or would be, bound by the instrument are-- 20
(a) involved in an industrial dispute; or 21
(b) contravening-- 22
(i) this Act, a decision, or a recommendation under 23
section 241;136 or 24
(ii) the Industrial Organisations Act 1996. 25
136 Section 241 (Recommendation by consent)
s 283 204 s 285
Workplace Relations
(3) Subsection (2) applies whether or not the employees are employees 1
whose employment may be affected by the decision of the proceeding. 2
commissioner to consider efficiencies that may be achieved by 3
Chief
allocating matters to dual commissioners 4
283. When administering the commission and organising and allocating 5
its work,137 the chief commissioner must consider-- 6
(a) the improved efficiency of the commission; and 7
(b) in particular, the improved cooperation between the commission 8
and the Australian commission; 9
that may be achieved by the commission's functions and powers being 10
performed and exercised, for a particular matter, by a dual commissioner. 11
of commission's work 12
Reallocation
284. In organising and allocating the commission's work, the chief 13
commissioner may reallocate the matter of a proceeding before a 14
commission constituted by 1 or more of the members to a commission 15
constituted by-- 16
(a) the same member or members together with another member or 17
other members; or 18
(b) a different member or different members. 19
may continue to hear reallocated work without 20
Commission
re-hearing evidence 21
285. The commission to which the matter is reallocated may continue to 22
hear and decide the matter, without re-hearing evidence given before the 23
reallocation. 24
137 Administrative responsibility for administering the commission and organising
and allocating the commission's work rests with the chief commissioner (see
section 284], subject to the president's overall control (see section 253(2)).
s 286 205 s 287
Workplace Relations
of full bench 1
Decision
286. In a proceeding before a full bench, the commission's decision is 2
the decision of the majority of its members. 3
Division 4--Commission's functions 4
functions 5
Commission's
287. The commission's functions include-- 6
(a) establishing and maintaining-- 7
(i) an effective award safety net of fair minimum wages and 8
conditions; and 9
(ii) a system of non-discriminatory awards based on allowable 10
award matters; and 11
(b) supervising the bargaining of agreements; and 12
(c) certifying agreements; and 13
(d) approving workplace agreements; and 14
(e) resolving disputes by conciliation of industrial matters and, if 15
necessary, by arbitration or making an order; and 16
(f) making awards on allowable award matters; and 17
(g) resolving disputes in the negotiation of agreements-- 18
(i) by conciliation; and 19
(ii) if the parties agree to abide by a recommendation--by 20
recommendation; and 21
(iii) by supervising protected bargaining periods; and 22
(h) resolving disputes that threaten to harm the community or the 23
economy by conciliation and, if necessary, by arbitration; and 24
(i) resolving disputes over union coverage by making representation 25
orders; and 26
(j) dealing with claims relating to dismissals. 27
s 288 206 s 289
Workplace Relations
of commission's functions 1
Performance
288.(1) The commission must perform its functions-- 2
(a) under a provision of this Act in a way that furthers the objects of 3
this Act relevant to the provision; and 4
(b) in a way that avoids unnecessary technicalities and facilitates the 5
fair and practical conduct of proceedings under this Act. 6
(2) To remove doubt, a reference in this Act to the commission 7
performing a function, other than a function under chapter 2, part 2,138 does 8
not include a reference to the commission constituted by an enterprise 9
commissioner. 10
5--Powers of commission 11
Division
powers 12
General
289.(1) In a proceeding, the commission may-- 13
(a) make a decision it considers appropriate, irrespective of specific 14
relief claimed or applied for by a party; and 15
(b) give directions about the hearing of a matter within the 16
commission's jurisdiction. 17
(2) In a proceeding, the commission may, by order or direction, do 18
anything it is allowed to do by this Act. 19
(3) The commission may, by general order or for a particular case, 20
delegate to magistrates generally, a particular magistrate, or the registrar-- 21
(a) the working out of a decision of the commission; or 22
(b) a function relating to the decision, including, for example-- 23
(i) the making of orders; or 24
(ii) the giving of directions; or 25
(iii) the preparation of rosters and schedules; or 26
(iv) a similar function it considers appropriate. 27
138 Chapter 2, part 2 (Queensland workplace agreements)
s 290 207 s 290
Workplace Relations
(4) A full bench may, to assist it in the appropriate determination of a 1
proceeding-- 2
(a) refer the whole or part of a question or matter before it to a 3
commissioner-- 4
(i) for investigation and report to the full bench; or 5
(ii) for the other action it decides; 6
(b) direct 1 or more of its members to carry out a specified 7
investigation or inspection and to report on it to the full bench. 8
(5) A commissioner to whom a reference is made or a direction is given 9
must comply with the reference or direction. 10
to amend or void contracts 11
Power
290.(1) The commission may amend or declare void (wholly or partly) a 12
contract if it considers-- 13
(a) the contract-- 14
(i) is a contract of services that is not covered by an industrial 15
instrument; or 16
(ii) is a contract for services that is designed to, or does, avoid 17
the provisions of an industrial instrument; and 18
(b) the contract's conditions are harsh, unconscionable or unfair. 19
(2) The commission may make an order it considers appropriate about 20
payment of money for a contract amended or declared void. 21
(3) A proceeding under this section may be instituted by-- 22
(a) the party required under the contract to provide services; or 23
(b) an inspector, for the party. 24
(4) In this section-- 25
"condition" of a contract means a condition about the way services under 26
the contract are to be provided or remunerated. 27
"contract" includes-- 28
(a) an arrangement; and 29
s 291 208 s 291
Workplace Relations
(b) a collateral arrangement relating to a contract or arrangement. 1
"industrial instrument" includes an award or agreement made under the 2
Commonwealth Act. 3
to grant injunctions 4
Power
291.(1) The commission may, on application, grant the injunctive order it 5
considers appropriate-- 6
(a) to compel compliance with an industrial instrument, a permit or 7
an industrial Act; or 8
(b) to restrain a contravention, or continuance of a contravention, of 9
an industrial instrument, a permit or an industrial Act. 10
(2) An application may be made by-- 11
(a) a party to industrial action or an industrial dispute; or 12
(b) a person who is, or is likely to be, directly affected by industrial 13
action or an industrial dispute; or 14
(c) the registrar; or 15
(d) the employment advocate; or 16
(e) an inspector. 17
(3) An application by an organisation must be under the organisation's 18
seal and signed by the organisations president and secretary. 19
(4) The commission may direct the injunctive order to-- 20
(a) the officers or members of an organisation generally; or 21
(b) particular officers or members of an organisation; or 22
(c) a particular employer; or 23
(d) a particular employee. 24
(5) The commission's jurisdiction for an injunctive order may be 25
exercised in chambers, but an order granted by the commission in chambers 26
may be discharged by a full bench on the application of-- 27
(a) a party to the relevant instrument; or 28
(b) a person affected by the order. 29
s 292 209 s 292
Workplace Relations
(6) A person to whom the order is directed must comply with the order 1
after the person has received notice of it. 2
(7) The commission may decide the form of the notice and the way it is 3
to be served. 4
(8) Without limiting subsection (7), the commission may order 5
substituted service of the notice by advertisement or otherwise. 6
(9) If the officers or members, or a substantial number of the officers or 7
members, of an organisation to whom an injunctive order is directed, 8
contravene the order, the organisation and every officer of the organisation 9
is taken to have contravened the order. 10
(10) It is a defence to a prosecution for an offence under subsection (9) 11
for the organisation or officer to prove that it, or the officer, took all 12
reasonable steps to ensure the officers or members complied with the order. 13
(11) The commission can not grant an injunctive order for a proposed 14
contravention of section 217, 226, 227, 228 or 229.139 15
(12) In this section-- 16
"injunctive order" means an order in the nature of a mandatory or 17
restrictive injunction. 18
"organisation" includes a branch of the organisation. 19
to direct or order in relation to industrial action 20
Power
292.(1) If it considers it appropriate in relation to industrial action, 21
whether actual, threatened, or apprehended, the commission may-- 22
(a) direct the industrial action to stop or not happen; or 23
(b) give the other directions or make the orders it considers 24
appropriate. 25
(2) The powers conferred on the commission by subsection (1) are in 26
139 Section 217 (When dismissal is unlawful), 226 (Notice of dismissal or
compensation), 227 (Orders giving effect to articles 12 and 13 of Convention),
228 (Orders if employer does not consult about proposed dismissals) or
229 (Employer must notify Commonwealth employment service of proposed
dismissals)
s 293 210 s 293
Workplace Relations
addition to, and not in derogation of, the powers conferred on it by the rest 1
of this Act. 2
(3) A person or organisation to whom an order under subsection (1) 3
applies must comply with the order.140 4
about representation rights of employee organisations 5
Orders
293.(1) A full bench may, on application by an organisation, an employer 6
or the Minister, make the following orders about a demarcation dispute-- 7
(a) an order that an employee organisation has the right, to the 8
exclusion of another organisation, to represent a particular group 9
of employees who are eligible for membership of the 10
organisation; 11
(b) an order that an employee organisation that does not have the right 12
to represent a particular group of employees has the right; 13
(c) an order that an employee organisation does not have the right to 14
represent a particular group of employees who are eligible for 15
membership of the organisation. 16
(2) The full bench may make an order only if-- 17
(a) the full bench considers a conciliation proceeding would not assist 18
the prevention or settlement of the dispute; or 19
(b) a conciliation proceeding in relation to the dispute is completed, 20
but the dispute has not been fully settled. 21
(3) The full bench may make an order only if satisfied-- 22
(a) the conduct, or threatened conduct, of an organisation to which the 23
order would relate, or of an officer, member or employee of the 24
organisation is-- 25
(i) preventing, obstructing or restricting the performance of 26
work; or 27
(ii) harming an employer's business; or 28
(b) the consequences mentioned in paragraph (a)-- 29
140 For contravention of the order, see section 351 (Enforcing commission's orders).
s 293 211 s 293
Workplace Relations
(i) have stopped, but are likely to recur as a result of the conduct 1
or threatened conduct; or 2
(ii) are imminent as a result of the conduct or threatened 3
conduct. 4
(4) In considering whether to make an order, the full bench must 5
consider-- 6
(a) the wishes of employees who are affected by the dispute; and 7
(b) the effect of an order on the operations (including operating costs, 8
work practices, efficiency and productivity) of an employer who 9
is-- 10
(i) a party to the dispute; or 11
(ii) a member of an organisation that is a party to the dispute; 12
and 13
(c) an agreement or understanding that the full bench becomes aware 14
of that deals with an employee organisation's right to represent a 15
particular group of employees; and 16
(d) the consequences of not making an order for an employer, 17
employees or organisation involved in the dispute; and 18
(e) another order made by the commission, relating to another 19
demarcation dispute involving the organisation to which the order 20
would relate, that the commission considers relevant.141 21
(5) An order may be subject to conditions. 22
(6) An organisation to which an order applies must comply with the 23
order.142 24
(7) The full bench may, on application by the Minister or a person or 25
organisation affected by an order, make the further order it considers 26
appropriate to ensure compliance with the order. 27
(8) In this section-- 28
141 Under section 244 (Secret ballot on strike action) the commission may order that
a vote of the members of the organisation concerned in the dispute be taken by
secret ballot for the purpose of finding out their attitudes to the dispute.
142 For contravention of the order, see section 351 (Enforcing commission's orders).
s 294 212 s 294
Workplace Relations
"right to represent" a particular group of employees means the right to 1
represent the industrial interests of the particular group of employees. 2
for reopening 3
Procedures
294.(1) A proceeding may be reopened, on application by a person under 4
subsection (2), by-- 5
(a) for a proceeding taken before a full bench--a full bench; or 6
(b) otherwise--the commission. 7
(2) Application for reopening of a proceeding may be made by-- 8
(a) the Minister; or 9
(b) a party to the proceedings; or 10
(c) for a proceeding that is not about a certified agreement or 11
QWA-- 12
(i) an organisation whose members are bound by, or claim to 13
be affected by or dissatisfied with, the proceeding; or 14
(ii) a person who is bound by or claims to be affected by or 15
dissatisfied with the proceeding, and who satisfies the 16
commission that the person is not an officer of, or acting for, 17
an eligible association. 18
(3) If the commission reopens a proceeding, it may-- 19
(a) revoke or amend a decision or recommendation made or taken by 20
it; and 21
(b) make the decision or recommendation it considers appropriate. 22
(4) If a recommendation of the commission has been acted on by the 23
Governor in Council and the commission later revokes or amends the 24
recommendation, the Governor in Council may-- 25
(a) cancel the action taken on the recommendation to accord with the 26
commission's revocation or amendment; or 27
(b) amend the action to accord with the commission's revocation or 28
amendment. 29
(5) Failure to give notice to a person of the proceeding, or any part of the 30
s 295 213 s 296
Workplace Relations
proceeding, leading to the making, or taking, by the commission of a 1
decision binding on the person-- 2
(a) does not invalidate or otherwise affect the decision; but 3
(b) if the person is one on whose application the commission may 4
exercise its powers, the person's failure to participate in the 5
proceeding because of the absence of notice does not affect the 6
person's application for reopening of a proceeding. 7
(6) If the commission grants an application for reopening, it may give the 8
retrospective operation to its decision made in the reopened proceeding it 9
considers appropriate. 10
to full bench 11
Reference
295.(1) A commissioner may, at any stage of a proceeding and on the 12
terms the commissioner considers appropriate, refer the matter to which the 13
proceeding relates to a full bench. 14
(2) A commissioner who is not the chief commissioner may refer the 15
matter only with the chief commissioner's approval. 16
(3) Before the hearing of a matter by the commissioner begins, a party to 17
the proceeding may apply to the chief commissioner for the matter to be 18
referred to a full bench. 19
(4) An application mentioned in subsection (3) may be heard by the chief 20
commissioner in chambers. 21
(5) If the chief commissioner is satisfied the matter is of substantial 22
industrial significance, the chief commissioner may refer the matter to a full 23
bench. 24
(6) A full bench may hear and decide a matter referred to it and make the 25
decision it considers appropriate. 26
stated to court 27
Case
296.(1) The commission may, at any stage of a proceeding and on the 28
terms it considers appropriate, state a written case for the court's opinion on 29
a question of law relevant to the proceeding. 30
(2) The court may-- 31
s 297 214 s 298
Workplace Relations
(a) hear and decide the matter raised by a case stated; and 1
(b) remit the case, with its opinion, to the commission by which the 2
case was stated; and 3
(c) make the order about costs it considers appropriate. 4
(3) The commission must give effect to the court's opinion. 5
to magistrate 6
Remission
297.(1) A commissioner may order an industrial matter be remitted to a 7
magistrate for-- 8
(a) investigation and report to the commissioner; or 9
(b) taking of evidence; or 10
(c) hearing and decision. 11
(2) In this section-- 12
"industrial matter" includes any aspect of an industrial matter, or any 13
matter or question connected with the matter. 14
to enter and inspect 15
Power
298.(1) A member, or an officer, of the commission or another person 16
with a member's written authority, may-- 17
(a) enter a workplace in relation to which-- 18
(i) an industrial dispute exists, is impending or threatened, or 19
will probably arise; or 20
(ii) an industrial matter exists; or 21
(iii) an industrial instrument or permit exists; or 22
(iv) it is reasonably suspected an offence under an industrial Act 23
has been, or is being committed; and 24
(b) inspect any work, machinery, appliance, materials, article or thing 25
in or on the workplace; and 26
(c) question a person in or on the workplace about a matter relevant 27
to the commission's concern with the workplace. 28
s 299 215 s 299
Workplace Relations
(2) A power under subsection (1) may be exercised only during working 1
hours at the workplace. 2
(3) If a member, officer or other person is seeking to exercise a power 3
under subsection (1), a person must not-- 4
(a) refuse or unduly delay entry to the workplace; or 5
(b) fail to answer a question about a matter mentioned in 6
subsection (1), unless the person has a lawful excuse; or 7
(c) wilfully give false information or make a false statement. 8
Maximum penalty for subsection (3)--40 penalty units or 1 years 9
imprisonment. 10
(4) In this section-- 11
"workplace" means a place where, or for which-- 12
(a) a calling is carried on; or 13
(b) work has been, or is being, performed; or 14
(c) another activity has happened, or is happening. 15
of awards and certified agreements 16
Interpretation
299.(1) A commissioner may give an interpretation of an award on 17
application by-- 18
(a) the Minister; or 19
(b) an organisation; or 20
(c) an employer; or 21
(d) a person who satisfies the commissioner that the person is not an 22
officer of, or acting for, an eligible association; or 23
(e) an inspector. 24
(2) A commissioner may give an interpretation of a certified agreement 25
on application by-- 26
(a) the Minister; or 27
(b) an organisation, or other person, bound by the agreement; or 28
(c) an employee whose employment is subject to the agreement; or 29
s 300 216 s 301
Workplace Relations
(d) an inspector. 1
(3) If an inspector's application under subsection (1) or (2) relates to an 2
alleged ambiguity, the commissioner must hear and decide the application in 3
the absence of a statement of agreed facts. 4
of policy 5
Statement
300.(1) A full bench may make a statement of policy about an industrial 6
matter, whether or not the matter is before the commission. 7
(2) On application by a party to an award, a stated policy about an 8
allowable award matter may be given effect by being inserted in the award. 9
(3) The registrar may give effect to a stated policy by directions about 10
procedural matters to the extent allowed by the commission. 11
(4) The directions bind all persons concerned. 12
a secret ballot 13
Conducting
301.(1) The commission may specify when, where and how a secret 14
ballot is to be conducted. 15
(2) A magistrate or the registrar must-- 16
(a) conduct the ballot in accordance with the direction; and 17
(b) for the conduct of the ballot--do the things provided for by the 18
rules of court. 19
(3) Public service officers must help a magistrate or the registrar, as 20
required, to conduct the ballot. 21
(4) A magistrate or the registrar must advertise the result of the ballot in a 22
newspaper circulating in the locality concerned. 23
(5) A person must not-- 24
(a) resist or obstruct a magistrate, the registrar, an officer of the 25
public service, or a person acting under the direction or authority 26
of the magistrate or registrar, performing a duty imposed, or an 27
action directed or authorised to be done, for the ballot; or 28
(b) at or near the place where the ballot is being taken-- 29
s 301 217 s 301
Workplace Relations
(i) threaten or intimidate, or obstruct the free passage of, an 1
employee proceeding to or attending at the place to vote at 2
the ballot; or 3
(ii) threaten or intimidate an employee not to vote or to vote in a 4
particular way at the ballot; or 5
(c) obstruct an employee or another person in the performance of an 6
action directed or authorised to be done for the ballot; or 7
(d) by a threat or intimidation, prevent an employee or another person 8
from performing an action directed or authorised to be done for 9
the ballot; or 10
(e) vote at the ballot unless the person-- 11
(i) is entitled to vote; and 12
(ii) has received a ballot paper from the magistrate or registrar; 13
or 14
(f) vote at the ballot in someone else's name; or 15
(g) if the person is entitled to vote at the ballot--mark a ballot paper 16
relating to the ballot, other than the ballot paper received by the 17
person from the magistrate or registrar. 18
Maximum penalty--40 penalty units. 19
(6) A police officer may-- 20
(a) arrest without warrant a person the officer finds committing an 21
offence against subsection (5)(a), (b), (c) or (d); and 22
(b) institute a prosecution for the offence. 23
(7) Subsection (6) prevails over the Criminal Code, section 534143 to the 24
extent of any inconsistency. 25
(8) In this section-- 26
"prevent" includes attempt to prevent. 27
"resist or obstruct" includes attempt to resist or obstruct. 28
143 Criminal Code, section 534 (Intimidation of workers and employers)
s 302 218 s 304
Workplace Relations
"threaten or intimidate" includes attempt to threaten or intimidate. 1
"vote" includes attempt to vote. 2
powers 3
Other
302. This division does not limit, by implication, another power given to, 4
or possessed by, the commission under this or another Act or law. 5
6--Member's conditions of appointment 6
Division
7
Remuneration
303.(1) The salary and allowances payable to members of the 8
commission are to be fixed by decisions of the Salaries and Allowances 9
Tribunal under the Judges (Salaries and Allowances) Act 1967. 10
(2) The salary and allowances are payable out of the consolidated fund, 11
which is appropriated accordingly. 12
benefits--Judges (Pensions and Long Leave) Act 13
Pension
304.(1) The Judges (Pensions and Long Leave) Act 1957, other than 14
sections 2A and 15,144 (the "pensions Act") applies with all necessary 15
changes to a member of the commission and a member's spouse or child in 16
the way it applies to a judge and a judge's spouse or child. 17
(2) In the pensions Act, a reference to a judge may, if the context permits, 18
be taken to be a reference to a member. 19
(3) In working out a person's length of service as a member for 20
subsection (1), the following periods must be taken into account-- 21
(a) a period when the person has served as a member, whether 22
under-- 23
(i) a first appointment as a member or a renewal of the 24
appointment; or 25
144 Judges (Pensions and Long Leave) Act 1957, sections 2A (Length of service) and
15 (Leave of absence of Judges)
s 305 219 s 305
Workplace Relations
(ii) a subsequent appointment; 1
(b) a period when the person has served as an acting member. 2
(4) This section does not apply if section 305 applies. 3
benefits--Superannuation Acts 4
Pension
305.(1) Section 304 does not confer entitlement to pension benefits on a 5
member of the commission, or on a member's spouse or child, if the 6
member was appointed as a member-- 7
(a) under the repealed Act or an Act repealed by the repealed Act, and 8
was entitled to elect, and properly elected-- 9
(i) to contribute, or continue to contribute, to the fund; or 10
(ii) to be, or continue to be, a member of the scheme; or 11
(b) after the commencement of this section and-- 12
(i) is a contributor to the fund--properly elects to continue to 13
contribute to the fund; or 14
(ii) is a member of the scheme--properly elects to continue as a 15
member of the scheme; or 16
(iii) is not a contributor to the fund or a member of the 17
scheme--properly elects to be a member of the scheme. 18
(2) A member making an election under subsection (1)(b) must do so 19
within 3 months after being first appointed as a member. 20
(3) The election must be by signed notice in duplicate, a copy of which 21
must be given to-- 22
(a) the board under the 1972 Act or board of trustees under the 23
Superannuation (State Public Sector) Act 1990, as the case may 24
be; and 25
(b) the chief executive of the department in which this Act is 26
administered. 27
(4) If a member properly elects to continue to contribute to the fund-- 28
(a) contributions are subject to and in accordance with the 1958 Act 29
and the 1972 Act that applied to the member's contributions 30
s 305 220 s 305
Workplace Relations
immediately before appointment as a member; and 1
(b) benefits payable to the member or the member's spouse or child 2
because of contributing to the fund are as prescribed by the 3
1958 Act and the 1972 Act that apply to the member, spouse or 4
child; and 5
(c) for the 1958 Act--the member is taken to be an officer within the 6
meaning of that Act; and 7
(d) for the 1972 Act--the member is taken to be an officer within the 8
meaning of that Act. 9
(5) If a member does not properly elect to continue contributing to the 10
fund, the member is-- 11
(a) taken to have ceased to be a contributor and an officer within the 12
meaning of the 1958 Act or the 1972 Act on appointment as a 13
member; and 14
(b) entitled to-- 15
(i) the payments prescribed by the Acts that apply to the 16
member to be paid to a contributor on resignation before 17
reaching an age at which the contributor is permitted to retire; 18
or 19
(ii) preserve the contribution in the way prescribed by the Acts 20
that apply to the member. 21
(6) In this section-- 22
"1958 Act" means the Public Service Superannuation Act 1958. 23
"1972 Act" means the State Service Superannuation Act 1972. 24
"fund" means the State Service Superannuation Fund established under the 25
1972 Act. 26
"scheme" means the scheme within the meaning of the Superannuation 27
(State Public Sector) Act 1990. 28
s 306 221 s 308
Workplace Relations
of absence 1
Leave
306.(1) The Judges (Pensions and Long Leave) Act 1957, section 15 145 2
applies with all necessary changes to a member of the commission in the 3
way it applies to a judge. 4
(2) In section 15 of that Act, a reference to a judge may, if the context 5
permits, be taken to be a reference to a member. 6
(3) In working out a person's length of service as a member for 7
subsection (1), the following periods must be taken into account-- 8
(a) a period when the person has served as a member, whether 9
under-- 10
(i) a first appointment as a member or a renewal of the 11
appointment; or 12
(ii) a subsequent appointment; 13
(b) a period when the person has served as an acting member. 14
PART 3--INDUSTRIAL MAGISTRATES 15
1--Industrial Magistrates Court 16
Division
Magistrates Court 17
Industrial
307. An Industrial Magistrates Court is a court of record. 18
Division 2--Industrial magistrates 19
of Industrial Magistrate 20
Office
308. Each of the following persons is an industrial magistrate (a 21
145 Judges (Pensions and Long Leave) Act 1957, section 15 (Leave of absence of
Judges)
s 309 222 s 310
Workplace Relations
"magistrate")-- 1
(a) a stipendiary magistrate; 2
(b) an acting stipendiary magistrate. 3
3--Constitution and jurisdiction of Industrial Magistrates 4
Division
Court 5
of Industrial Magistrates Court 6
Constitution
309. An Industrial Magistrates Court is constituted by a magistrate sitting 7
alone. 8
jurisdiction 9
Magistrate's
310.(1) A magistrate has jurisdiction-- 10
(a) to hear and decide all matters within the jurisdiction of a 11
magistrate that are brought before, or referred to, the magistrate; 12
and 13
(b) throughout the State. 14
(2) A magistrate has jurisdiction-- 15
(a) to hear and decide a proceeding about the following matters-- 16
(i) offences against this Act for which-- 17
(A) a maximum penalty of not more than 40 penalty units 18
is prescribed, unless the offence is one for which this 19
Act makes other provision; or 20
(B) jurisdiction is conferred by this Act on magistrates; 21
(ii) claims for wages payable to an employee under an industrial 22
instrument or permit or for amounts payable, with an 23
employee's written consent, from the wages; 24
(iii) claims for wages payable to an employee under an 25
agreement in which-- 26
(A) wages are payable at a price or rate that is not fixed by a 27
relevant industrial instrument or permit; or 28
s 311 223 s 311
Workplace Relations
(B) wages are payable at a price or rate over that fixed by a 1
relevant industrial instrument or permit; 2
(iv) claims for amounts payable, with an employee's written 3
consent, from wages mentioned in subparagraph (iii); 4
(v) claims under chapter 9, part 2, division 2;146 5
(vi) claims for damages for contravention of an agreement made 6
under an industrial instrument; 7
(vii) claims for damages suffered by an employee because of the 8
employer neglecting to pay the employee's wages; 9
(viii)claims for compensation under section 226;147 and 10
(b) to exercise powers conferred on, or jurisdiction given to, 11
magistrates by this Act; and 12
(c) to exercise powers conferred on, or jurisdiction given to, 13
magistrates by another Act; and 14
(d) in relation to an industrial matter (or any aspect of the matter, or a 15
matter or question connected with the matter) remitted to the 16
magistrate by a commissioner-- 17
(i) to investigate and report on the matter, as required by the 18
commissioner's order; or 19
(ii) to take evidence about the matter, as required by the 20
commissioner's order; or 21
(iii) to hear and decide the matter, as required by the 22
commissioner's order. 23
jurisdiction is exclusive 24
Magistrates'
311.(1) The jurisdiction conferred on a magistrate by this or another Act 25
is exclusive of the jurisdiction of another court or tribunal, unless this or the 26
other Act otherwise prescribes. 27
146 Chapter 9, part 2, division 2 (Protection for wages)
147 Section 226 (Notice of dismissal or compensation)
s 312 224 s 314
Workplace Relations
(2) Jurisdiction conferred on a magistrate by section 310(2)(a)(ii) and (iii) 1
is not exclusive of another court's jurisdiction. 2
4--Powers of industrial magistrates 3
Division
powers on remission 4
Magistrate's
312.(1) A magistrate to whom the commission remits a matter must 5
comply promptly with the order of remission. 6
(2) For that purpose, the magistrate has all the jurisdiction and powers of 7
a commissioner necessary or convenient for compliance with the order. 8
ART 4--INDUSTRIAL REGISTRAR 9
P
1--Industrial registrar's office continued 10
Division
11
Continuance
313. The Industrial Registrar's Office (the "registrar's office"), as 12
formerly established, is continued in existence. 13
2--Role of industrial registrar's office 14
Division
of office 15
Role
314. The registrar's office-- 16
(a) is the registry of the court and commission; and148 17
(b) provides administrative support to the court and commission; and 18
(c) performs the functions prescribed for the office. 19
148 The clerk of the court provides registry services for industrial magistrates.
s 315 225 s 317
Workplace Relations
3--Industrial registrar and staff 1
Division
registrar and staff 2
Industrial
315.(1) The Governor in Council may, by industrial gazette notice, 3
appoint a person as industrial registrar (the "registrar"). 4
(2) Assistant registrars may also be appointed. 5
(3) The registrar, assistant registrars and staff of the registrar's office are 6
employed under the Public Service Act 1996. 7
(4) The registrar, assistant registrars and staff of the registrar's office are 8
officers of the court and the commission. 9
and powers of registrar 10
Functions
316.(1) The registrar-- 11
(a) administers the registrar's office; and 12
(b) for the court and commission--must perform the functions, and 13
may exercise the powers, prescribed under a regulation or 14
provided for under the rules of court; and 15
(c) has any other function conferred on the registrar under this or 16
another Act. 17
(2) In performing a function or exercising a power under 18
subsection (1)(b), the registrar must comply with a direction given in 19
relation to the performance or exercise by the president or a member of the 20
commission. 21
(3) The registrar has the power to do all things necessary or convenient to 22
be done for the performance of the registrar's functions. 23
of assistant registrar 24
Functions
317. An assistant registrar must help the registrar in performing the 25
registrar's functions. 26
s 318 226 s 320
Workplace Relations
by registrar 1
Delegation
318. The registrar may delegate a power of the registrar under this Act 2
to-- 3
(a) an assistant registrar; or 4
(b) an appropriately qualified person nominated by the president; or 5
(c) for section 402149 --an appropriately qualified officer of the court 6
or commission. 7
PART 5--ARRANGEMENTS WITH OTHER 8
AUTHORITIES 9
1--Commissioner may also be member of Australian 10
Division
commission 11
may hold other appointment 12
Commissioner
319. A commissioner who is appointed as a member of the Australian 13
commission may hold that appointment and the appointment as 14
commissioner at the same time. 15
2--Dual commissioners 16
Division
of Commonwealth official as commissioner 17
Appointment
320.(1) The Governor in Council may appoint a member of the 18
Australian commission to be a commissioner ("dual commissioner"). 19
(2) Sections 277 and 303150 do not apply to the appointment of a dual 20
commissioner or to a dual commissioner. 21
149 Section 402 (Inspection of employee register and index--registrar)
150 Sections 277 (Removal of members from office) and 303 (Remuneration)
s 321 227 s 321
Workplace Relations
(3) The appointment-- 1
(a) is for the term the Governor in Council considers appropriate and 2
states in the instrument of appointment; and 3
(b) may be terminated, with the Governor in Council's approval, by 4
the Minister's notice given to the dual commissioner. 5
(4) A dual commissioner-- 6
(a) is not entitled to remuneration for performing the functions of a 7
commissioner; but 8
(b) is entitled to be paid expenses reasonably incurred by the dual 9
commissioner in exercising powers and performing functions as 10
a commissioner. 11
(5) A dual commissioner stops being a commissioner if the person-- 12
(a) becomes a person mentioned in section 276(2);151 or 13
(b) stops being a member of the Australian commission. 14
of dual commissioner 15
Role
321.(1) A dual commissioner, in accordance with an agreement between 16
the chief commissioner and the president of the Australian commission-- 17
(a) must perform the functions of a commissioner; and 18
(b) has, and may exercise for a particular matter, the powers of-- 19
(i) a commissioner; and 20
(ii) a member of the Australian commission. 21
(2) A provision of this Act prescribing the functions or powers of a 22
commissioner is subject to subsection (1) in its application to a dual 23
commissioner. 24
151 Section 276 (Restrictions etc. on appointment)
s 322 228 s 323
Workplace Relations
3--References to Commonwealth official 1
Division
of matter to Commonwealth official 2
Reference
322.(1) The chief commissioner may ask the president of the Australian 3
commission to nominate a member of that commission to deal with an 4
industrial matter before the commission. 5
(2) If a nomination is made, the chief commissioner may refer the 6
industrial matter to the nominated member, to be dealt with by the 7
nominated member under this Act. 8
(3) In dealing with the industrial matter, the nominated member-- 9
(a) has the powers of a commissioner; and 10
(b) in exercising the powers, is taken to constitute the commission 11
constituted by a single commissioner. 12
(4) The nominated member's decision is taken to be a decision of the 13
commission. 14
(5) A reference to a nominated member-- 15
(a) does not derogate from the commission's authority to exercise 16
jurisdiction in relation to the industrial matter referred; and 17
(b) may be revoked by the chief commissioner by notice given to the 18
nominated member. 19
(6) In exercising the authority conferred under this section, the chief 20
commissioner must act in consultation with the president of the court. 21
(7) In this section-- 22
"industrial matter" includes part of an industrial matter. 23
Division 4--Conferences and joint sessions with industrial authorities 24
with industrial authorities 25
Conferences
323.(1) This section applies if-- 26
(a) the chief commissioner considers it desirable that a conference be 27
held with an industrial authority about an industrial matter; and 28
s 324 229 s 325
Workplace Relations
(b) the industrial authority agrees to a conference. 1
(2) The chief commissioner may confer, or direct another commissioner 2
to confer, with the industrial authority to coordinate decisions made, or to be 3
made-- 4
(a) under this Act about the industrial matter; and 5
(b) by the industrial authority. 6
sessions with industrial authorities 7
Joint
324.(1) This section applies if-- 8
(a) the chief commissioner considers a proceeding relating to an 9
industrial matter before the commission constituted by a 10
single commissioner should be heard in joint session with an 11
industrial authority; and 12
(b) the industrial authority agrees to a joint session. 13
(2) The chief commissioner may-- 14
(a) hear, or direct another commissioner to hear, the proceeding in 15
joint session with the industrial authority; and 16
(b) confer, or direct the other commissioner to confer, with the 17
industrial authority about the proceeding and the decision to be 18
made in the proceeding; and 19
(c) join, or direct the other commissioner to join, with the industrial 20
authority in the decision made in the proceeding. 21
matters before full bench and industrial authority 22
Similar
325.(1) This section applies if-- 23
(a) the chief commissioner considers an industrial authority has 24
before it an industrial matter similar to an industrial matter before 25
a full bench; and 26
(b) the industrial authority agrees to participate in joint session. 27
(2) The chief commissioner may-- 28
(a) if the chief commissioner is a member of the full 29
s 326 230 s 329
Workplace Relations
bench--participate in joint session with the industrial authority 1
about the industrial matter; or 2
(b) direct a member of the full bench to participate in joint session 3
with the industrial authority about the industrial matter. 4
(3) The chief commissioner or member must report the result of the joint 5
session to the full bench. 6
powers in joint session 7
Commissioner's
326. A commissioner sitting in joint session with an industrial authority, 8
in relation to the industrial matter dealt with in joint session must perform 9
the functions and has, and may exercise, the powers of a commission 10
constituted by a single commissioner. 11
commissioner may decide matter not to be dealt with in joint 12
Chief
session 13
327. The chief commissioner may decide that an industrial matter should 14
not be dealt with in joint session and, if the decision is made after a joint 15
session about the matter starts-- 16
(a) the commissioner participating in the joint session must 17
immediately stop participating; and 18
(b) the industrial matter may proceed before the commission or, if 19
appropriate, a full bench. 20
on chief commissioner's authority 21
Restriction
328. In exercising the authority conferred under this division, the chief 22
commissioner must act in consultation with the president. 23
5--Other functions etc. and arrangements 24
Division
and powers vested in commission by other jurisdictions 25
Functions
329.(1) Subject to this Act, the commission may perform the functions 26
and exercise the powers conferred on it under-- 27
s 330 231 s 331
Workplace Relations
(a) the Workplace Relations Act 1996 (Cwlth); or 1
(b) another enactment of a jurisdiction other than Queensland 2
declared for this section under a regulation. 3
(2) A decision of the commission under authority conferred by 4
subsection (1) is not a decision made by it under this Act. 5
with Commonwealth public service 6
Arrangements
330.(1) Arrangements may be made under the Public Service Act 1996, 7
section 82152 for-- 8
(a) officers of the Commonwealth public service to perform the 9
functions and exercise the powers of Queensland public service 10
officers under this Act; and 11
(b) Queensland public service officers to perform the functions and 12
exercise the powers of officers of the Commonwealth public 13
service under the Commonwealth Act. 14
(2) An arrangement under subsection (1)(a) is sufficient authority for an 15
officer of the Commonwealth public service to perform the functions and 16
exercise the powers of a Queensland public service officer under this Act. 17
PART 6--PROCEEDINGS OF COURT, 18
COMMISSION, MAGISTRATES AND REGISTRAR 19
1--Definitions 20
Division
for pt 6 21
Definitions
331. In this part-- 22
"administer" an oath includes authorise the administering of an oath. 23
152 Public Service Act 1996, section 82 (Work performance and interchange
arrangements)
s 332 232 s 333
Workplace Relations
"exercising" jurisdiction includes exercising powers and performing 1
functions. 2
"take" a statutory declaration includes authorise the taking of a statutory 3
declaration. 4
2--Starting proceedings and service of process 5
Division
proceedings 6
Starting
332.(1) A proceeding may be started in the court or commission or 7
before the registrar on application by-- 8
(a) an organisation or an officer or member of an organisation; or 9
(b) the Minister; or 10
(c) the employment advocate; or 11
(d) an inspector; or 12
(e) an employer; or 13
(f) a person who has an interest in the matter to which the application 14
relates. 15
(2) A proceeding may be started by the commission of its own initiative 16
and, for the proceeding, the commission may call before it the persons it 17
considers necessary. 18
(3) This section does not affect another provision of this Act providing 19
for the starting of proceedings. 20
of process 21
Service
333.(1) Subsection (2) applies if-- 22
(a) for a proceeding in, or to be started in, the court--the president or 23
the registrar; or 24
(b) for a proceeding in, or to be started in, the commission--a 25
member of the commission or the registrar; 26
considers service of a summons, notice, order or other document (the 27
"document") can not be effected promptly by personal service or in a way 28
s 334 233 s 334
Workplace Relations
prescribed under the rules of court. 1
(2) The president, a member of the commission or the registrar may 2
order-- 3
(a) substituted service of the document; or 4
(b) notice of the document be given by letter, telex, fax, electronic 5
mail, advertisement in an appropriate newspaper, or otherwise, 6
instead of service. 7
(3) Service or notice in accordance with the order is sufficient service of 8
the person required to be served. 9
(4) Unless otherwise ordered by the court or commission-- 10
(a) service of the document on an employer organisation; or 11
(b) substituted service or notice of the document in accordance with 12
an order under subsection (2); 13
is taken to be service on all employers who have employees engaged in the 14
calling that is relevant to the purpose of the document, or in related callings. 15
3--Conduct of proceedings 16
Division
of parties 17
Representation
334.(1) In a proceeding, a party to the proceeding, or a person ordered or 18
permitted to appear or to be represented in the proceeding, may be 19
represented by a lawyer only if-- 20
(a) for a proceeding in the court-- 21
(i) the proceeding is for the prosecution of an offence under this 22
or another Act; or 23
(ii) all parties to the proceeding consent; or 24
(iii) the court gives leave; or 25
(b) for a proceeding for the president's leave under 26
section 362(1)153-- 27
153 Section 362 (Appeals from commissioner to full bench with leave)
s 334 234 s 334
Workplace Relations
(i) all parties to the proceeding and all persons ordered or 1
permitted to be heard on the proceeding consent; or 2
(ii) the president gives leave; or 3
(c) for an interlocutory proceeding before the registrar for a 4
proceeding before, or to be brought before, the court-- 5
(i) all parties to the proceeding consent; or 6
(ii) the registrar gives leave; or 7
(d) for a proceeding before the commission-- 8
(i) all parties to the proceeding consent; or 9
(ii) the commission gives leave; or 10
(e) for a proceeding before an Industrial Magistrates Court or a 11
proceeding, other than an interlocutory proceeding, before the 12
registrar--all parties to the proceeding consent. 13
(2) For subsection (1)(d)(ii), the commission may give leave only if it 14
considers-- 15
(a) representation by a lawyer is desirable for the effective conduct of 16
the proceeding; and 17
(b) the proceeding is-- 18
(i) for the exercise of the commission's powers under 19
section 290;154 or 20
(ii) about the rules of an organisation or of an association 21
seeking registration as an organisation. 22
(3) In the proceeding-- 23
(a) a party to the proceeding, or a person ordered or permitted to 24
appear or to be represented may be represented by an agent 25
appointed in writing; and 26
(b) an organisation may be represented by an officer or member of 27
the organisation. 28
(4) All parties to a proceeding in an Industrial Magistrates Court may be 29
154 Section 290 (Power to amend or void contracts)
s 335 235 s 335
Workplace Relations
represented by a lawyer if the proceeding is-- 1
(a) brought personally by an employee and relates to a matter that 2
could have been brought before a court of competent jurisdiction 3
(other than an Industrial Magistrates Court); or 4
(b) for the prosecution of an offence. 5
(5) However, in a proceeding under subsection (4)(b), the person 6
represented can not be awarded costs of the representation. 7
(6) In this section-- 8
"lawyer", for a proceeding, means a lawyer (enrolled in Queensland or 9
elsewhere) engaged as a lawyer for the proceeding. 10
of procedures and decisions of the commission and magistrates 11
Basis
335.(1) Subsections (2) and (3) do not apply to a proceeding for the 12
recovery of amounts or an offence against an industrial Act. 13
(2) In a proceeding before the commission or an Industrial Magistrates 14
Court, the commission or Industrial Magistrates Court-- 15
(a) is not bound by technicalities, legal forms or rules of evidence; 16
and 17
(b) may inform itself on a matter it considers appropriate in the 18
exercise of its jurisdiction. 19
(3) Also, the commission or Industrial Magistrates Court is to be 20
governed in its decisions by equity, good conscience and the substantial 21
merits of the case having regard to the interests of-- 22
(a) the persons immediately concerned; and 23
(b) the community as a whole. 24
(4) In making a decision, the commission must consider the public 25
interest, and to that end must consider-- 26
(a) the objects of the relevant industrial Act; and 27
(b) the state of the economy; and 28
(c) the likely effects of the commission's decision on the economy, 29
industry generally and the particular industry concerned. 30
s 336 236 s 338
Workplace Relations
(5) In exercising its jurisdiction, the commission must have appropriate 1
regard to the rules of court. 2
and compellability of witnesses 3
Competence
336. A party to a proceeding in the court or commission is competent, 4
and may be compelled, to give evidence in the proceeding as a witness to 5
the same extent as in a civil proceeding in the Supreme Court. 6
by State or Minister 7
Intervention
337.(1) The State may intervene at any stage-- 8
(a) in a proceeding before the court, the commission, an Industrial 9
Magistrates Court or the registrar; or 10
(b) in a proceeding before any court or tribunal that touches on-- 11
(i) the jurisdiction or powers of the court, the commission, a 12
magistrate or the registrar; or 13
(ii) a matter for which the jurisdiction or powers may be 14
exercised; or 15
(iii) the interpretation of an industrial Act. 16
(2) On intervention, the State becomes a party to the proceeding. 17
(3) The Minister may intervene, in the public interest, at any stage in a 18
proceeding before the court, the commission, an Industrial Magistrates 19
Court or the registrar. 20
(4) On intervention, the Minister becomes a party to the proceeding. 21
by registrar 22
Adjournment
338. If the president or a member of the commission can not attend at the 23
time appointed for hearing a proceeding, the registrar may adjourn the court 24
or commission and any business set down for the day to a day and time that 25
the registrar considers convenient. 26
s 339 237 s 341
Workplace Relations
employee to give information 1
State
339.(1) A person employed by the State must give the court or 2
commission, on request, information that the person has knowledge of in an 3
official capacity. 4
(2) The person must comply with the request despite an obligation under 5
an Act or law not to disclose information, unless an Act or law allows, 6
justifies or excuses a refusal to give it in evidence in a legal proceeding. 7
4--Powers 8
Division
of commission's powers 9
Exercise
340.(1) The commission may, unless otherwise prescribed,155 exercise 10
its powers-- 11
(a) of its own initiative; or 12
(b) on application by-- 13
(i) a party to a proceeding in which the power is to be exercised; 14
or 15
(ii) an organisation. 16
(2) The commission may, of its own initiative-- 17
(a) join 2 or more matters to be heard and decided by the 18
commission, whether the matters or any of them arise under this 19
or another Act; and 20
(b) hear and decide the matters in 1 proceeding. 21
proceedings and chamber matters 22
Interlocutory
341. In an industrial cause, the president, a member of the commission 23
or the registrar may make orders, or give directions, he or she considers just 24
and necessary in relation to-- 25
(a) an interlocutory proceeding to be taken before the hearing of the 26
155 See, for example, section 294 (Procedures for reopening).
s 342 238 s 342
Workplace Relations
cause, including a proceeding about-- 1
(i) naming and joinder of parties; or 2
(ii) persons to be served with notice of a proceeding; or 3
(iii) calling of persons to attend in a proceeding; or 4
(iv) particulars of the claims of the parties; or 5
(v) the issues to be referred to the court or commission; or 6
(vi) admissions, discovery, interrogatories or inspection of 7
documents or property; or 8
(vii) examination of witnesses; or 9
(viii)costs of the interlocutory proceeding; or 10
(ix) place, time and mode of hearing of the cause; or 11
(b) a matter that, under the rules of court, the president, a member, or 12
the registrar is allowed to hear or deal with in chambers. 13
to order inquiry or taking of evidence 14
Power
342.(1) The commission, by order, may direct-- 15
(a) the registrar to conduct an inquiry into a matter the commission 16
requires information about for the exercise of the commission's 17
jurisdiction; or 18
(b) an appropriately qualified person to take evidence for the 19
commission about an industrial cause. 20
(2) The registrar or other person must comply promptly with the 21
direction and report, or give a record of evidence taken, to the commission. 22
(3) The registrar may call persons to attend before the registrar and 23
examine parties and witnesses for-- 24
(a) conducting an inquiry mentioned in subsection (1); or 25
(b) disposing of another matter referred to the registrar under an 26
industrial Act. 27
(4) A person directed to take evidence under subsection (1) has all the 28
powers of the commission for-- 29
s 343 239 s 344
Workplace Relations
(a) calling witnesses; and 1
(b) requiring production of records. 2
to administer oath 3
Power
343. In exercising jurisdiction, the following persons may take evidence 4
on oath or statutory declaration, and for that purpose may administer an oath 5
or take a statutory declaration-- 6
(a) a person constituting the court, the commission or an Industrial 7
Magistrates Court; 8
(b) the registrar; 9
(c) a person directed by the commission to take evidence for the 10
commission. 11
incidental to exercise of jurisdiction 12
Powers
344. Except as otherwise prescribed by this Act or the rules of court, the 13
court, commission and registrar may-- 14
(a) at or before a hearing, take steps to find out whether all persons 15
who ought to be bound by a decision to be made in a proceeding 16
have been called to attend or given notice of, the proceeding; and 17
(b) direct, for a proceeding-- 18
(i) who the parties to the proceeding are; and 19
(ii) by whom the parties may be represented; and 20
(iii) persons to be called to attend the proceeding, if they have not 21
been called and it appears they should attend the proceeding; 22
and 23
(iv) parties to be joined or struck out; and 24
(v) who may be heard and on what conditions; and 25
(c) hear and decide an industrial cause in the way that appears best 26
suited for the purpose; and 27
(d) allow the proceeding to be amended on terms that appear just and 28
fair; and 29
s 345 240 s 345
Workplace Relations
(e) correct, amend or waive an error, defect or irregularity in the 1
proceeding, whether substantive or formal; and 2
(f) give directions under a decision, that the court, commission or 3
registrar considers necessary for, or conducive and appropriate to, 4
the effective implementation of the decision; and 5
(g) hear and decide an industrial cause in the absence of a party, or of 6
a person who has been called to attend, or served with a notice to 7
appear, at the proceeding; and 8
(h) sit at any time and in any place for hearing and deciding an 9
industrial cause, and adjourn a sitting to any time and place; and 10
(i) refer technical matters, accounting matters, or matters involving 11
expert knowledge to an expert, and admit the expert's report in 12
evidence; and 13
(j) extend a prescribed or stated time, before or after expiry of the 14
time; and 15
(k) waive compliance with a rule of court. 16
to obtain data and expert evidence 17
Power
345.(1) If the commission wants expert evidence based on facts or 18
figures to decide an industrial cause, it may-- 19
(a) order the following persons to give it returns of the facts or 20
figures-- 21
(i) an organisation that is, or any of whose members are, party 22
to the proceeding; 23
(ii) an employer, or group of employers, who are party to the 24
proceeding; and 25
(b) allow a person selected by it as an expert in a relevant respect to 26
prepare, from the returns, schedules directed to matters that the 27
commission seeks to be informed on. 28
(2) A person preparing a schedule may show in it the particulars that-- 29
(a) are relevant to the cause; or 30
(b) the commission asks for. 31
s 346 241 s 347
Workplace Relations
(3) However, the person must not, without the commission's leave, 1
otherwise divulge to anyone (other than the commission)-- 2
(a) the name of the organisation that gave the return; or 3
(b) business information of a private or confidential nature extracted 4
from the return. 5
Maximum penalty--20 penalty units. 6
(4) A schedule, as far as possible, must extend beyond 1 years operation 7
of an industry or business. 8
5--Decisions and enforcement 9
Division
generally 10
Decisions
346.(1) Subject to this Act, the court or commission may, in an industrial 11
cause-- 12
(a) make a decision it considers just, and include in the decision a 13
provision it considers appropriate for preventing or settling the 14
industrial dispute, or dealing with the industrial matter, the cause 15
relates to, without being restricted to any specific relief claimed by 16
the parties to the cause; or 17
(b) dismiss the cause, or refrain from hearing, further hearing, or 18
deciding the cause, if the court or commission considers-- 19
(i) the cause is trivial; or 20
(ii) a further proceeding by the court or commission is not 21
necessary or desirable in the public interest; or 22
(c) order a party to the cause to pay another party the expenses 23
(including witness expenses) it considers appropriate. 24
decisions 25
Reserved
347.(1) The court or commission may reserve its decision in a 26
proceeding. 27
(2) If a decision is reserved-- 28
s 348 242 s 349
Workplace Relations
(a) it may be pronounced at-- 1
(i) a continuation or resumption of the court or commission; or 2
(ii) a subsequent sitting of the court or commission; or 3
(b) the court or commission may give its written decision, signed by 4
the person or each of the persons constituting the court or 5
commission, to the registrar. 6
(3) The registrar must file a written decision in the registrar's office and 7
give a copy of it to each of the immediate parties to the industrial cause. 8
(4) When filed, a decision has effect as if it had been pronounced by the 9
court or commission. 10
decisions to be in plain English 11
Commission
348. The commission must ensure the commission's written decisions 12
are-- 13
(a) in plain English; and 14
(b) structured in a way that makes a decision as easy to understand as 15
the subject matter allows. 16
of decisions and their execution 17
Extent
349.(1) In the exercise of its jurisdiction, the court or commission may-- 18
(a) make the decisions it considers necessary for-- 19
(i) doing complete justice in a proceeding before it; and 20
(ii) the execution of the decision; and 21
(b) enforce its own decisions; and 22
(c) direct the issue of a writ or process, or impose and enforce a 23
penalty, allowed or prescribed by this or another Act, in the same 24
way a Supreme Court judgment is enforced. 25
(2) A decision of the court or commission-- 26
(a) must be drawn up and verified; and 27
(b) without limiting any other way of execution and recovery 28
s 350 243 s 351
Workplace Relations
prescribed, may be executed, recovered on, and otherwise 1
enforced; 2
as a judgment or order of a Supreme Court judge is drawn up, verified, 3
executed, recovered and otherwise enforced against the person, lands, and 4
goods of the party affected. 5
(3) For the effective operation of subsection (2), the Rules of the 6
Supreme Court, as far as they may reasonably be applied, are to be applied 7
and complied with, with the amendments the court or commission 8
approves. 9
(4) The registrar, deputy registrars, sheriff, bailiffs and officers of the 10
Supreme Court, or of Magistrates Courts, are taken to be officers of the 11
Industrial Court and commission for-- 12
(a) executing, recovering on, and otherwise enforcing decisions of the 13
Industrial Court or commission; or 14
(b) imposing functions or conferring powers by the rules of court and 15
of performing the functions or exercising the powers. 16
osts 17
C
350.(1) The court and commission may award costs in a proceeding 18
before the court or commission, including a proceeding that is dismissed or 19
not proceeded with for want of jurisdiction. 20
(2) However, unless this Act otherwise permits, costs must not be 21
awarded for a lawyer or agent in a proceeding before the commission, 22
unless the commission certifies it was in the interests of justice that the 23
lawyer or agent was heard. 24
commission's orders 25
Enforcing
351.(1) The commission may direct an order about an industrial dispute 26
to-- 27
(a) an organisation; or 28
(b) a person in a capacity as an officer or agent of an organisation; or 29
(c) any other person. 30
s 351 244 s 351
Workplace Relations
(2) If an order may be directed to an organisation or a person, the 1
commission may direct the order to the person only after considering 2
whether it would be more appropriate to direct the order to the organisation. 3
(3) An order must-- 4
(a) if the order is made against a person--state the person's name; 5
and 6
(b) state a time for complying with the order; and 7
(c) direct any of the following persons to file an affidavit with the 8
registrar within a stated time-- 9
(i) the organisation or person; 10
(ii) the party to the proceeding who sought the order; 11
(iii) any other party to the proceeding the commission considers 12
appropriate. 13
(4) An affidavit under subsection (3)(c) must state whether there has 14
been compliance with the order and, if the order has not been complied 15
with, the steps the person is aware of that have been taken to comply. 16
(5) The commission may extend a time stated under subsection (3)(b) or 17
(c). 18
(6) At the end of the time stated for filing an affidavit, or the time 19
extended by the commission, the registrar must-- 20
(a) examine all affidavits filed, and if the registrar considers it 21
necessary, make the further inquiries the registrar considers 22
appropriate; and 23
(b) determine whether there has been substantial compliance with the 24
order. 25
(7) If the registrar is not satisfied that there has been substantial 26
compliance with the order, the registrar must issue a notice (under the rules 27
of court) calling on the organisation or person to whom the order was 28
directed to show cause to the full court at a stated time why the organisation 29
or person should not be dealt with under section 352. 30
s 352 245 s 352
Workplace Relations
on show cause 1
Remedies
352.(1) If an organisation issued with the notice does not show cause at 2
the stated time, the full court may-- 3
(a) impose on the organisation a penalty of not more than 4
1 000 penalty units; or 5
(b) amend an award or certified agreement to which the organisation 6
is a party; or 7
(c) suspend the date of operation of a wage increase that would 8
otherwise be payable to members of the organisation or to a class 9
of the members; or 10
(d) change the organisation's rules to exclude from eligibility for 11
membership persons belonging to a particular class of member or 12
section of the membership; or 13
(e) make the orders it considers appropriate-- 14
(i) restricting the use of property of the organisation, or a branch 15
of the organisation; or 16
(ii) controlling the property of the organisation, or a branch of 17
the organisation, to ensure the restrictions are complied with; 18
or 19
(f) suspend the organisation's registration for a stated period; or 20
(g) cancel the organisation's registration; or 21
(h) make the other orders it considers appropriate-- 22
(i) to secure the organisation's compliance with the 23
commission's order; or 24
(ii) to punish the organisation for not complying with the 25
commission's order; or 26
(i) order the organisation to pay the costs of the show cause 27
proceeding. 28
(2) If a person issued with the notice does not show cause at the stated 29
time, the full court may-- 30
(a) impose on the person a fine of not more than 40 penalty units; or 31
(b) make the other orders it considers appropriate-- 32
s 353 246 s 354
Workplace Relations
(i) to secure the person's compliance with the commission's 1
order; or 2
(ii) to punish the person for not complying with the 3
commission's order; or 4
(c) order the person to pay the costs of the show cause proceeding. 5
(3) All persons concerned must comply with an order or direction made 6
or given by the court. 7
(4) In this section-- 8
"stated time" means at the time stated in the notice to show cause under 9
section 351(7),156 or at a time to which the proceeding is adjourned. 10
of commission or magistrate not to be questioned 11
Proceeding
353.(1) This section applies to a proceeding before the commission or an 12
Industrial Magistrates Court. 13
(2) A decision in the proceeding can not, in any court or on any 14
account-- 15
(a) be impeached for informality or want of form; or 16
(b) be appealed against, reviewed, quashed or invalidated, except as 17
provided under an industrial Act. 18
(3) The proceeding is not removable by prerogative order in the nature of 19
certiorari. 20
(4) A prohibition order can not be issued, and an injunction or 21
prerogative order in the nature of mandamus can not be granted, for, or to 22
restrain, the proceeding if it is about matters within the jurisdiction of the 23
commission or a magistrate. 24
magistrate's decision 25
Filing
354.(1) A decision of a magistrate made on a remission by the 26
commission-- 27
156 Section 351 (Enforcing commission's orders)
s 355 247 s 356
Workplace Relations
(a) must be filed in the registrar's office; and 1
(b) when filed, is taken to be a decision of the commission and has 2
effect, and may be enforced, accordingly. 3
(2) Subsection (1) does not limit any right of appeal from the decision. 4
of amounts under orders 5
Recovery
355.(1) If the court or commission in a proceeding orders an amount be 6
paid (as a penalty or otherwise), the registrar may issue a certificate, under 7
the seal of the court or commission, stating-- 8
(a) the amount payable; and 9
(b) the persons by whom and to whom the amount is payable. 10
(2) When the certificate is filed in a court of competent jurisdiction in an 11
action for a debt of the amount, the order evidenced by the certificate is 12
enforceable as an order made by the court where the certificate is filed. 13
(3) This section does not limit other ways in which amounts may be 14
recovered on an order of the court or commission. 15
6--Protections and immunities 16
Division
and immunities 17
Protection
356.(1) The president, a member of the commission and a magistrate, in 18
the exercise of jurisdiction for this or another Act have the protection and 19
immunities of a Supreme Court judge exercising the jurisdiction of a judge. 20
(2) The president, a member of the commission, a magistrate or the 21
registrar (the "official") has, in a proceeding for defamation for a 22
publication made to or by the official in the official's official capacity, a 23
defence of absolute privilege if the publication was made in good faith. 24
(3) The burden of proving absence of good faith is on a person who 25
alleges the absence. 26
s 357 248 s 357
Workplace Relations
7--Rules of court and practice 1
Division
of court 2
Rules
357.(1) The president may make rules of court under this Act. 3
(2) The president may make the rules only with the concurrence of-- 4
(a) for a rule relating to an enterprise commissioner--an enterprise 5
commissioner; or 6
(b) for a rule relating to the Industrial Magistrates Court--the Chief 7
Stipendiary Magistrate; or 8
(c) otherwise--2 commissioners. 9
(3) Rules may be made about the following matters-- 10
(a) regulating the practice and procedure and forms to be followed 11
and used-- 12
(i) in or for a proceeding in the court, commission or Industrial 13
Magistrates Court and before the registrar; or 14
(ii) in or for drawing up, settling and enforcing decisions, 15
convictions and actions made, recorded or done by the court, 16
commission or registrar; or 17
(iii) for regulating a proceeding in chambers; 18
(b) publishing decisions and other actions of the court, commission 19
or registrar and the effect of the publication; 20
(c) recovering fines and penalties imposed; 21
(d) enforcing orders for attachment or imprisonment and orders for 22
the payment of amounts made by the court or commission; 23
(e) fees and expenses payable to witnesses; 24
(f) fees payable in relation to a proceeding in the court or 25
commission, or before the registrar and the party by whom the 26
fees are to be paid; 27
(g) service of process, notices, orders or other proceeding on parties 28
and other persons; 29
(h) the functions and powers of officers of the court or commission; 30
s 358 249 s 358
Workplace Relations
(i) delegating the jurisdiction of the commission as permitted by this 1
Act; 2
(j) requiring organisations or other entities to give returns, lists of 3
officers or members and other statistical information to the 4
registrar; 5
(k) providing for all matters necessary or expedient to be provided for 6
to allow for-- 7
(i) the full and effective exercise of jurisdiction and powers of 8
the court, commission, Industrial Magistrates Court and 9
registrar; and 10
(ii) giving effect to the decisions, convictions and actions made, 11
recorded, or done by the court, the commission, a 12
magistrate, the registrar, or an officer of the court or 13
commission. 14
(4) Rules of court made under this section are subordinate legislation. 15
about practice 16
Directions
358.(1) Subject to this Act and the rules of court, the practice and 17
procedure of the court, the commission, an Industrial Magistrates Court or 18
the registrar is as directed by the president, a member, a magistrate or the 19
registrar. 20
(2) If a person wishes to take a step in an industrial cause or a proposed 21
cause and this Act or the rules of court do not provide or sufficiently 22
provide for it, application for directions may be made in chambers to the 23
appropriate person mentioned in subsection (1). 24
s 359 250 s 360
Workplace Relations
ART 7--APPEALS 1
P
1--Appeals to Court of Appeal 2
Division
from court to Court of Appeal 3
Appeal
359.(1) A person dissatisfied as a defendant may appeal to the Court of 4
Appeal against the following decisions-- 5
(a) a decision of the full court, in a proceeding mentioned in 6
section 258(1)(b)(iv), (vi) or (vii);157 7
(b) a decision of the court in a proceeding mentioned in 8
section 258(1)(c). 9
(2) In the appeal, the validity of a proceeding in or before, or of a decision 10
of, the commission or a magistrate can not be called in question. 11
Division 2--Appeals to Industrial Court 12
from commission, magistrate or registrar to court 13
Appeal
360.(1) The State, or a person dissatisfied with a decision of the 14
commission or registrar, may appeal against the decision to the court only 15
on the ground of-- 16
(a) error of law; or 17
(b) excess, or want, of jurisdiction. 18
(2) Despite subsection (1), an appeal does not lie to the court, on any 19
ground, against a decision of a full bench made-- 20
(a) on appeal from a decision of a member of the commission; or 21
(b) under section 55(4).158 22
(3) A person dissatisfied with a decision of a magistrate exercising 23
157 Section 258 (Court's jurisdiction)
158 Section 55 (What happens if commission terminates a bargaining period under
s 53(3) or (7))
s 361 251 s 362
Workplace Relations
jurisdiction conferred under section 310159 in relation to-- 1
(a) the matters stated in section 310(2)(a) or (c); or 2
(b) the powers provided for in section 435;160 3
may appeal to the court. 4
(4) The court may-- 5
(a) dismiss the appeal; or 6
(b) allow the appeal and-- 7
(i) set aside the decision appealed against and substitute the 8
decision it considers should have been made; or 9
(ii) amend, as it considers appropriate, the decision appealed 10
against; or 11
(iii) suspend the operation of the decision appealed against and 12
remit the industrial cause, with or without directions, to the 13
commission, an Industrial Magistrates Court or the registrar 14
to act according to law. 15
may vary penalty on appeal 16
Court
361. If the court, on appeal, confirms a person's conviction for an 17
offence, it may increase or reduce the penalty imposed on the person for the 18
offence. 19
3--Appeals to Industrial Relations Commission 20
Division
from commissioner to full bench with leave 21
Appeals
362.(1) A person dissatisfied with a decision of a commissioner may 22
appeal against the decision to a full bench, with the president's leave, on a 23
ground other than-- 24
(a) error of law; or 25
159 Section 310 (Magistrate's jurisdiction)
160 Section 435 (Magistrate's power for unpaid superannuation contribution)
s 363 252 s 363
Workplace Relations
(b) excess, or want, of jurisdiction. 1
(2) The president may give leave for the appeal only if the president 2
considers the matter is of sufficient importance that an appeal should be 3
brought in the public interest. 4
(3) The full bench may-- 5
(a) dismiss the appeal; or 6
(b) allow the appeal and-- 7
(i) set aside the decision appealed against and substitute the 8
decision it considers should have been made; or 9
(ii) amend, as it considers appropriate, the decision appealed 10
against; or 11
(iii) suspend the operation of the decision appealed against if it 12
has not already been stayed under section 365,161 and remit 13
the matter, with or without directions, to the member-- 14
(A) for report to the full bench; or 15
(B) to act according to law. 16
from magistrate to commission 17
Appeal
363.(1) A person dissatisfied with a decision of a magistrate exercising 18
jurisdiction conferred under section 310162 may appeal against the decision 19
to a full bench, unless an appeal may be brought under subsection (2) or 20
section 360(3).163 21
(2) A person dissatisfied with a decision of a magistrate under 22
section 471164 may appeal against the decision to the commission. 23
(3) If the decision under section 471 is that a permit may be issued, an 24
appeal may be brought only on the ground that the calling to which the 25
permit relates, or would relate, is one for which the permit should not be 26
161 Section 365 (President may stay decisions when leave sought)
162 Section 310 (Magistrate's jurisdiction)
163 Section 360 (Appeal from commission, magistrate or registrar to court)
164 Section 471 (Aged or infirm persons permits)
s 364 253 s 364
Workplace Relations
issued. 1
(4) The commission may-- 2
(a) dismiss the appeal; or 3
(b) allow the appeal and-- 4
(i) set aside the decision appealed against and substitute the 5
decision it considers should have been made; or 6
(ii) amend, as it considers appropriate, the decision appealed 7
against; or 8
(iii) remit the matter, with or without directions, to the 9
magistrate-- 10
(A) for report to the commission; or 11
(B) to act according to law. 12
from registrar to full bench 13
Appeal
364.(1) A person dissatisfied with a decision of the registrar under 14
section 132(9) or 470165 may appeal against the decision to a full bench. 15
(2) The full bench may-- 16
(a) dismiss the appeal; or 17
(b) allow the appeal and-- 18
(i) set aside the decision appealed against and substitute the 19
decision it considers should have been made; or 20
(ii) amend, as it considers appropriate, the decision appealed 21
against; or 22
(iii) remit the industrial cause, with or without directions, to the 23
registrar-- 24
165 Section 132 (General rulings) or 470 (Student's work permit)
s 365 254 s 367
Workplace Relations
(A) for report to the full bench; or 1
(B) to act according to law. 2
may stay decisions when leave sought 3
President
365.(1) After application is made for leave to appeal under 4
section 362(1),166 a person with a sufficient interest in the matter may apply 5
to the president for an order staying the operation of the decision against 6
which it is sought to appeal. 7
(2) The president may order the operation be stayed, wholly or partly, for 8
a stated period, if the president considers it appropriate. 9
(3) The order has effect according to its terms. 10
on appeal that are final 11
Decisions
366. A decision of a full bench on an appeal against a commissioner's 12
decision is final. 13
to commission against stand-downs 14
Appeal
367.(1) An employee stood down by an employer under section 231,167 15
may appeal to the commission against the stand-down. 16
(2) If the employee is a member of an employee organisation, the 17
organisation in its registered name may institute and conduct the appeal for 18
the employee. 19
(3) The commission may-- 20
(a) dismiss the appeal; or 21
(b) allow the appeal and order-- 22
(i) the employee be paid the wages lost by the employee 23
because of the stand-down within a stated period; or 24
(ii) if the employee remains stood down at the time of the 25
166 Section 362 (Appeals from commissioner to full bench with leave)
167 Section 231 (Permissible stand-down of employee)
s 368 255 s 368
Workplace Relations
commission's decision--the employer to provide for the 1
resumption of work by the employee, immediately or on a 2
stated day. 3
(4) If the commission makes an order under subsection (3)(b)(i), it may 4
include in the order default provisions for its enforcement (other than by 5
imprisonment) as if-- 6
(a) the commission were an Industrial Magistrates Court; and 7
(b) the commissioner who makes the order were a magistrate. 8
(5) The order may be filed with the clerk of a Magistrates Court and on 9
filing may be enforced as an order made by an Industrial Magistrates Court. 10
4--Appeals to both Industrial Court and Industrial Relations 11
Division
Commission 12
from commissioner to both court and full bench 13
Appeals
368.(1) A person who has the right to appeal against a commissioner's 14
decision may appeal both to-- 15
(a) the court; and 16
(b) a full bench. 17
(2) The person must file 2 separate appeals stating-- 18
(a) for the appeal to the court--only the grounds mentioned in 19
section 360(1);168 and 20
(b) for the appeal to a full bench--only the grounds mentioned in 21
section 362(1).169 22
(3) The president must decide the order in which the appeals are to be 23
heard. 24
168 Section 360 (Appeal from commission, magistrate or registrar to court)
169 Section 362 (Appeals from commissioner to full bench with leave)
s 369 256 s 371
Workplace Relations
(4) In this section-- 1
"appeal against decision" includes an application for a prerogative order in 2
relation to a decision. 3
Division 5--General 4
of appeal 5
Nature
369.(1) An appeal to the court or commission is by way of re-hearing on 6
the record. 7
(2) However, the court may hear evidence afresh, or hear additional 8
evidence, if the court considers it appropriate to effectively dispose of the 9
appeal. 10
limited for appeal 11
Time
370. An appeal against a decision must be commenced as required under 12
the rules of court within 21 days after-- 13
(a) if the decision is given at a hearing--the announcement of the 14
decision at the hearing; or 15
(b) if the decision is given through the registrar--the release of the 16
decision. 17
HAPTER 8--ADMINISTRATION 18
C
PART 1--EMPLOYMENT ADVOCATE 19
Advocate 20
Employment
371.(1) The Governor in Council may, by industrial gazette notice, 21
appoint a person as the employment advocate. 22
(2) The employment advocate is to be employed under the Public Service 23
s 372 257 s 372
Workplace Relations
Act 1996. 1
(3) The chief inspector may at the same time be the employment 2
advocate. 3
(4) The Governor in Council may enter into an arrangement for the 4
Commonwealth employment advocate to perform any or all of the 5
functions and exercise any or all of the powers of the employment advocate 6
under this Act. 7
(5) An arrangement under subsection (4) is sufficient authority for the 8
Commonwealth employment advocate to perform the functions and 9
exercise the powers of an employment advocate under this Act. 10
unctions and powers 11
F
372.(1) The employment advocate has the following functions-- 12
(a) providing help and advice to employees about their rights and 13
obligations under this Act and the Industrial Organisations Act 14
1996, part 14;170 15
(b) providing help and advice to employers (especially in small 16
business) about their rights and obligations under this Act and the 17
Industrial Organisations Act 1996, part 14; 18
(c) providing advice to employers and employees, for QWAs, about 19
the relevant award, statutory entitlements and relevant provisions 20
of this Act; 21
(d) investigating and remedying-- 22
(i) alleged contraventions of QWAs or chapter 2, part 2;171 or 23
(ii) any other complaints relating to QWAs; 24
(e) investigating and remedying alleged contraventions of the 25
Industrial Organisations Act 1996, part 14; 26
(f) any other functions given to the employment advocate by 27
chapter 2, part 2; 28
170 Industrial Organisations Act 1996, part 14 (Freedom of association)
171 Chapter 2, part 2 (Queensland workplace agreements)
s 373 258 s 373
Workplace Relations
(g) any other functions prescribed under a regulation. 1
(2) In performing the functions, the employment advocate must have 2
particular regard to-- 3
(a) the needs of workers in a disadvantaged bargaining position 4
(including for example, women, people from a non-English 5
speaking background, young people, apprentices, trainees and 6
outworkers); and 7
(b) assisting workers to balance work and family responsibilities; and 8
(c) promoting better work and management practices through 9
QWAs; and 10
(3) The employment advocate has the power to do all things necessary or 11
convenient to be done for, or in connection with, the performance of the 12
advocate's functions. 13
(4) For the performance of a function mentioned in subsection (1)(d) or 14
(e)-- 15
(a) the employment advocate is appointed as an inspector; but 16
(b) section 376172 does not apply to the employment advocate. 17
by employment advocate 18
Delegation
373. The employment advocate may delegate the employment advocate's 19
powers to-- 20
(a) for a function mentioned in section 372(1)(a) to (c), (f) or (g)--an 21
appropriately qualified public service officer or employee; or 22
(b) for a function mentioned in section 372(1)(a) to (c)--an 23
appropriately qualified person; or 24
(c) for a function mentioned in section 372(1)(d) or (e)--an 25
inspector. 26
172 Section 376 (Appointment of inspectors)
s 374 259 s 376
Workplace Relations
report 1
Annual
374. The department's annual report for a financial year must include a 2
report about the employment advocate's operations during the year. 3
laws 4
Complementary
375.(1) To enable functions to be performed or powers to be exercised 5
by the Commonwealth employment advocate or the Australian 6
commission, the Commonwealth provisions apply as a law of the State 7
with-- 8
(a) the amendments required under a regulation; and 9
(b) any other amendments allowed under a regulation. 10
(2) In this section-- 11
"Commonwealth provisions" means the Commonwealth Act, part VID 12
and the other provisions of that Act as far as they relate to the part. 13
PART 2--INSPECTORS 14
Division 1--Appointment 15
of inspectors 16
Appointment
376.(1) The Governor in Council may, by industrial gazette notice, 17
appoint a person as the chief inspector. 18
(2) The chief inspector is to be employed under the Public Service Act 19
1996. 20
(3) The chief executive may appoint any of the following persons to be 21
an inspector-- 22
(a) public service officers and employees; 23
(b) other persons prescribed under a regulation. 24
(4) However, the chief executive may appoint a person as an inspector 25
s 377 260 s 378
Workplace Relations
only if satisfied the person has the necessary expertise to be an inspector. 1
(5) An inspector, while the inspector holds the appointment, is also an 2
inspector for-- 3
(a) the Industrial Organisations Act 1996; and 4
(b) the Pastoral Workers, Accommodation Act 1980; and 5
(c) the Trading (Allowable Hours) Act 1990; and 6
(c) the Workers' Accommodation Act 1952. 7
of inspector's powers 8
Limitation
377.(1) In exercising powers, an inspector is subject to the directions 9
of-- 10
(a) for a power exercised in relation to a QWA or the Industrial 11
Organisations Act 1996, part 14173--the employment advocate; 12
and 13
(b) otherwise--the chief inspector. 14
(2) An inspector's powers may be limited-- 15
(a) under a condition of appointment; or 16
(b) by notice given by the chief executive to the inspector; or 17
(c) under a regulation. 18
appointment conditions 19
Inspector's
378.(1) An inspector holds office on the conditions stated in the 20
instrument of appointment. 21
(2) An inspector ceases holding office-- 22
(a) if the appointment provides for a term of appointment--at the end 23
of the term; and 24
(b) if the appointment conditions provide--on ceasing to hold another 25
office stated in the appointment conditions (the "main office"). 26
173 Industrial Organisations Act 1996, part 14 (Freedom of association)
s 379 261 s 380
Workplace Relations
(3) An inspector may resign by signed notice of resignation given to the 1
chief executive. 2
(4) However, an inspector may not resign from the office under this Act 3
(the "secondary office") if a condition of appointment to the main office 4
requires the inspector to hold the secondary office. 5
2--Identity cards 6
Division
card 7
Identity
379.(1) The chief executive must give each inspector an identity card. 8
(2) The identity card must-- 9
(a) contain a recent photo of the person; and 10
(b) be signed by the person; and 11
(c) identify the person as an inspector for this Act. 12
(3) A person who stops being an inspector must return the person's 13
identity card to the chief executive as soon as possible (but within 21 days) 14
after the person stops being an inspector, unless the person has a reasonable 15
excuse. 16
Maximum penalty--10 penalty units. 17
(4) This section does not prevent the giving of a single identity card to a 18
person for this and other Acts or for other purposes. 19
or display of identity card 20
Production
380.(1) An inspector may exercise a power in relation to a person only 21
if-- 22
(a) the inspector first produces his or her identity card for the 23
person's inspection; or 24
(b) the inspector has the inspector's identity card displayed so it is 25
clearly visible to the person. 26
(2) However, if for any reason it is not practicable to comply with 27
s 381 262 s 382
Workplace Relations
subsection (1) before exercising the power, the inspector must produce the 1
identity card for the person's inspection at the first reasonable opportunity. 2
Division 3--General powers 3
to places 4
Entry
381.(1) An inspector may, without the occupier's consent, enter-- 5
(a) a public place; or 6
(b) a workplace when-- 7
(i) the workplace is open for carrying on business; or 8
(ii) the workplace is otherwise open for entry. 9
(2) If the workplace is on or near domestic premises, an inspector may, 10
without the occupier's consent, enter the land around the premises to gain 11
access to the workplace. 12
(3) However, if it is practicable to do so before entering the land, the 13
inspector must first tell the occupier of the inspector's intention to gain 14
access to the workplace. 15
(4) In this section-- 16
"domestic premises" means premises usually occupied as a private 17
dwelling house. 18
"workplace" means a place in or on which the inspector reasonably 19
suspects a calling is, has been, or is about to be carried on. 20
powers after entering places 21
General
382.(1) This section applies to an inspector who enters a place under 22
section 381. 23
(2) For monitoring or enforcing compliance with this Act, the inspector 24
may-- 25
(a) inspect, photograph or film any part of the place or anything at the 26
place; or 27
(b) take a thing, or a sample of thing, in the place; or 28
s 383 263 s 383
Workplace Relations
(c) copy a document at the place; or 1
(d) take into or onto the place the persons, equipment and materials 2
the inspector reasonably requires for exercising a power under 3
this part; or 4
(e) require a person at the place to give the inspector reasonable help 5
to exercise the powers under paragraphs (a) to (d). 6
(3) When making a requirement under subsection (2)(e), the inspector 7
must warn the person it is an offence to fail to comply with the requirement, 8
unless the person has a reasonable excuse. 9
(4) A person required to give reasonable help under subsection (2)(e) 10
must comply with the requirement, unless the person has a reasonable 11
excuse. 12
Maximum penalty--40 penalty units. 13
to require documents to be produced 14
Power
383.(1) An inspector may require a person to produce for inspection, at a 15
reasonable time and place nominated by the inspector, a document relating 16
to employees, including, for example, a time sheet or pay sheet. 17
(2) The person must produce the document, unless the person has a 18
reasonable excuse. 19
Maximum penalty--40 penalty units. 20
(3) The inspector may keep the document to copy it. 21
(4) If the inspector copies it, the inspector may require the person 22
responsible for keeping the document to certify the copy as a true copy of 23
the document. 24
(5) The person must certify the copy, unless the person has a reasonable 25
excuse. 26
Maximum penalty--40 penalty units. 27
(6) The inspector must return the document to the person as soon as 28
practicable after copying it. 29
s 384 264 s 385
Workplace Relations
to require information 1
Power
384.(1) An inspector may, during business hours-- 2
(a) question with respect to matters under this Act or under a relevant 3
industrial instrument-- 4
(i) an employer in a calling; or 5
(ii) a person found in or on a place in or on which the inspector 6
reasonably suspects a calling is, has been, or is about to be 7
carried on; and 8
(b) require the employer or person to give the inspector information 9
to help the inspector ascertain whether this Act, or a relevant 10
industrial instrument, permit or order are being, have been or will 11
be complied with, or should be given operation in relation to the 12
calling. 13
(2) When making the requirement, the inspector must warn the employer 14
or person it is an offence not to comply with the requirement, unless the 15
person has a reasonable excuse. 16
(3) The person must comply with the requirement, unless the person has 17
a reasonable excuse. 18
Maximum penalty--40 penalty units. 19
(4) It is a reasonable excuse for an individual to fail to comply with the 20
requirement if doing so might tend to incriminate the individual. 21
(5) The power to question an employee includes power to question the 22
employee out of anyone else's hearing. 23
to require name and address 24
Power
385.(1) An inspector may require a person, for this Act, to state the 25
person's name and address. 26
(2) When making the requirement, the inspector must warn the person it 27
is an offence to fail to state the person's name or address, unless the person 28
has a reasonable excuse. 29
(3) The inspector may require the person to give evidence of the 30
correctness of the stated name or address if the officer reasonably suspects 31
the stated name or address is false. 32
s 386 265 s 386
Workplace Relations
(4) A person must comply with a requirement under subsection (1) or 1
(3), unless the person has a reasonable excuse. 2
Maximum penalty--40 penalty units. 3
4--Powers to claim and deal with unpaid amounts 4
Division
employee's wages etc. to inspector 5
Paying
386.(1) On an inspector's written demand, an employer must pay-- 6
(a) the unpaid wages payable to an employee; and 7
(b) for an eligible employee-- 8
(i) the unpaid contributions payable under a relevant industrial 9
instrument for the employee by the employer to a complying 10
superannuation fund; and 11
(ii) an amount based on the return that would have accrued had 12
the contribution been properly paid to the fund. 13
Maximum penalty--40 penalty units. 14
(2) The payment must be made-- 15
(a) under subsection (1)(a)--to the inspector; or 16
(b) under subsection (1)(b)-- 17
(i) into a complying superannuation fund in the time specified 18
by the inspector; or 19
(ii) if not paid into a complying superannuation fund in the 20
specified time--to the inspector. 21
(3) A demand must not be made, or need not be complied with, if it does 22
or would relate to unpaid wages for which an order for recovery could not 23
be made on an application under section 423.174 24
(4) An Industrial Magistrates Court that hears and decides a complaint 25
against an employer for an offence under subsection (1)(a)-- 26
(a) apart from a penalty that it may impose; and 27
174 Section 423 (Recovery of wages etc.)
s 387 266 s 387
Workplace Relations
(b) whether or not it finds the employer guilty; 1
may order the employer to pay the employee the amount the court finds, on 2
the balance of probabilities, is payable to the employee. 3
(5) A court that finds an employer guilty of an offence under 4
subsection (1)(b) may make, in relation to the employer, an order that a 5
magistrate may make on an application made under section 435.175 6
(6) If an order is made, section 435 applies to it. 7
(7) In this section-- 8
"employee" includes a former employee. 9
obligation for amounts paid on demand 10
Inspector's
387.(1) An inspector who is paid an amount mentioned in section 386 11
must immediately give the payer a receipt for the amount. 12
(2) The receipt is a full discharge to the employer concerned for the 13
amount stated in the receipt. 14
(3) The inspector must pay the amount to-- 15
(a) for a superannuation contribution-- 16
(i) if the employee is employed by the employer--the approved 17
superannuation fund; or 18
(ii) if the employee is no longer employed by the employer-- 19
(A) the approved superannuation fund; or 20
(B) a complying superannuation fund; or 21
(C) a superannuation fund nominated by the employee; or 22
(D) an eligible rollover fund; or 23
(E) if the amount is less than the amount of total benefits 24
that may revert to an employee under the 25
Superannuation Industry (Supervision) Act 1993 26
(Cwlth)--the employee; or 27
175 Section 435 (Magistrate's power for unpaid superannuation contribution)
s 388 267 s 389
Workplace Relations
(b) otherwise--the employee. 1
(4) If the inspector has not accounted for the amount within 30 days after 2
receiving it, the inspector must pay the amount immediately to the 3
department. 4
(5) The department must account for the amount in the way required by 5
subsection (3). 6
(6) However, the department must pay the amount into the unclaimed 7
moneys fund in the Treasury if-- 8
(a) the department can not locate the employee after making 9
reasonable inquiries; or 10
(b) the employee does not nominate a superannuation fund for 11
subsection (3) if requested by an inspector to do so. 12
(7) In this section-- 13
"employee" includes a former employee. 14
"superannuation contribution" means-- 15
(a) an employer's contribution to an approved superannuation fund to 16
the credit of an eligible employee, which is unpaid; or 17
(b) an amount mentioned in section 386(1)(b)(ii). 18
Division 5--General 19
inspectors 20
Obstructing
388. A person must not obstruct an inspector in the exercise of a power, 21
unless the person has a reasonable excuse. 22
Maximum penalty--40 penalty units. 23
inspectors 24
Impersonating
389. A person must not pretend to be an inspector. 25
Maximum penalty--40 penalty units. 26
s 390 268 s 391
Workplace Relations
of inspector's conduct despite administrative contravention 1
Validity
390. Failure of an inspector to comply with section 377(1) or 380176-- 2
(a) does not affect the lawfulness or effect of an act done or omission 3
made by the inspector for this Act; but 4
(b) makes the inspector liable to disciplinary action. 5
HAPTER 9--RECORDS AND WAGES 6
C
ART 1--EMPLOYERS RECORDS 7
P
1--Definitions 8
Division
for pt 1 9
Definitions
391. In this part-- 10
"authorised industrial officer" means a person who holds an authority in 11
force under section 392. 12
"record" includes a computer print-out if-- 13
(a) the contents of the print-out relevant to this part are separate from 14
all other material in the print-out; and 15
(b) the print-out gives particulars required by this part accurately and 16
in a way and form convenient for the purpose of inspection under 17
this part. 18
176 Section 377 (Limitation of inspector's powers) or 380 (Production or display of
identity card)
s 392 269 s 392
Workplace Relations
"time and wages record"-- 1
(a) for an industrial instrument employee--see section 394;177 and 2
(b) for a non-industrial instrument employee--see section 395.178 3
Division 2--Authorised industrial officers 4
industrial officers 5
Authorising
392.(1) The registrar, on application by an organisation, may issue an 6
officer or employee of the organisation with an authorisation under this 7
section. 8
(2) An authorisation may be subject to conditions stated in it. 9
(3) A person who holds an authorisation that is in force (an "authorised 10
industrial officer") may exercise the powers of an authorised industrial 11
officer under this part. 12
(4) The authorisation-- 13
(a) must be applied for in the way prescribed under a regulation; and 14
(b) is in force for the term stated in the authorisation, unless it sooner 15
stops being in force for a reason mentioned in paragraph (c); and 16
(c) stops being in force-- 17
(i) on its revocation; or 18
(ii) on its suspension, for the period of suspension; or 19
(iii) on its holder ceasing to be an officer or employee of the 20
organisation that made the application or ceasing to be an 21
authorised industrial officer acceptable to the organisation. 22
(5) When an authorisation stops being in force, the organisation who 23
applied for it-- 24
(a) must notify the registrar within 14 days after the authorisation 25
stops being in force; and 26
177 Section 394 (Time and wages record--industrial instrument employees)
178 Section 395 (Time and wages record--non-industrial instrument employees)
s 393 270 s 394
Workplace Relations
(b) on the registrar's request, must surrender the authorisation to the 1
registrar. 2
Maximum penalty--16 penalty units. 3
and suspending industrial officer's authorisation 4
Revocation
393.(1) This section applies if, on application by an employer, the 5
commission considers an authorised industrial officer has-- 6
(a) breached a condition of the authorisation; or 7
(b) contravened section 400(2);179 or 8
(c) exercised the officer's power to enter in an unreasonable or 9
vexatious way; or 10
(d) made unreasonable, vexatious or inappropriate use of information 11
obtained from inspection of a record made available because of 12
the officer's power as an authorised industrial officer. 13
(2) The commission may-- 14
(a) revoke the officer's authorisation; or 15
(b) suspend the officer's authorisation for a period it considers 16
appropriate; or 17
(c) attach conditions to the officer's authorisation it considers 18
appropriate. 19
3--Employers to keep certain records 20
Division
and wages record--industrial instrument employees 21
Time
394.(1) An employer must keep a time and wages record at the 22
workplace that contains the following particulars for each industrial 23
instrument employee-- 24
(a) the employee's full name and address; 25
(b) the employee's date of birth; 26
179 Section 400 (Right of entry--authorised industrial officer)
s 394 271 s 394
Workplace Relations
(c) for each pay period-- 1
(i) the employee's designation; and 2
(ii) the name of the industrial instrument or permit under which 3
the employee is working; and 4
(iii) the number of hours worked by the employee during each 5
day and week, the times at which the employee started and 6
stopped work, and details of work breaks including meal 7
breaks; and 8
(iv) if the industrial instrument or permit provides for-- 9
(A) a weekly, daily or hourly wage rate--details of the 10
wage rate for each week, day, or hour at which the 11
employee is paid; or 12
(B) piecework rates--details of the piecework performed 13
and the rate at which payment is made to the employee; 14
and 15
(v) the gross and net wages paid to the employee; and 16
(vi) details of any deductions made from the wages; and 17
(vii) contributions made by the employer to a superannuation 18
fund; 19
(d) for an employee whose entitlement to long service leave is 20
worked out under section 200 180--the total hours (other than 21
overtime) worked by the employee since the start of the period to 22
which the entitlement relates, calculated up to 30 June in each 23
year; 24
(e) details of sick leave credited or approved, and sick leave payments 25
to the employee; 26
(f) the date when the employee became an employee of the 27
employer; 28
(g) if appropriate, the date when the employee stopped employment 29
with the employer; 30
180 Section 200 (Service of casual employees)
s 395 272 s 395
Workplace Relations
(h) other particulars necessary to show compliance with the hours of 1
work, wage rates and general employment conditions provided 2
under the instrument or permit. 3
Maximum penalty--40 penalty units. 4
(2) If the industrial instrument does not limit the employee's daily or 5
weekly working hours, particulars of the employee's starting and finishing 6
times each day need not be recorded, unless the instrument requires it. 7
(3) The employer must keep the record for 6 years. 8
Maximum penalty--40 penalty units. 9
(4) On the employee's request, the employer must give the employee a 10
certificate stating the total hours recorded under subsection (1)(d) for the 11
employee, calculated to the previous 30 June. 12
Maximum penalty--40 penalty units. 13
(5) In this section-- 14
"industrial instrument employee" means a person who-- 15
(a) is employed by the employer; and 16
(b) works under an industrial instrument or permit. 17
and wages record--non-industrial instrument employees 18
Time
395.(1) An employer must keep a time and wages record at the 19
workplace that contains the following particulars for each non-industrial 20
instrument employee-- 21
(a) for each pay period-- 22
(i) the employee's designation; and 23
(ii) the employee's wage rate; and 24
(iii) the gross and net wages paid to the employee; and 25
(iv) details of any deductions made from the wages; 26
(b) if an employee's entitlement to long service leave is worked out 27
s 396 273 s 396
Workplace Relations
under section 200181 --the total hours (other than overtime) 1
worked by the employee since the start of the period to which the 2
entitlement relates, calculated to 30 June in each year. 3
Maximum penalty--40 penalty units. 4
(2) The employer must keep the record for 6 years. 5
Maximum penalty--40 penalty units. 6
(3) On the employee's request, the employer must give the employee a 7
certificate stating the total hours recorded under subsection (1)(b) for the 8
employee, calculated to the previous 30 June. 9
Maximum penalty--40 penalty units. 10
(4) In this section-- 11
"non-industrial instrument employee" means a person who-- 12
(a) is employed by the employer; and 13
(b) works other than under an industrial instrument or permit. 14
register 15
Employee
396.(1) An employer must keep an employee register that contains the 16
following particulars for each employee-- 17
(a) the employee's full name and residential address; 18
(b) for a person who is residing other than at the person's permanent 19
residence when the person becomes an employee--the person's 20
permanent residential address and the address of the person's 21
other residence; 22
(c) the calling in which the employee is engaged; 23
(d) the date when the employee became an employee of the 24
employer; 25
(e) if appropriate, the date when the employee stopped employment 26
with the employer. 27
Maximum penalty--40 penalty units. 28
181 Section 200 (Service of casual employees)
s 397 274 s 398
Workplace Relations
(2) If an employer has more than 100 employees and the register is not 1
an alphabetical index itself, the employer must keep an alphabetical index of 2
the employee's names. 3
Maximum penalty--40 penalty units. 4
(3) The index may be in a loose leaf, computer print-out or card index 5
form. 6
(4) Within 14 days after a change in an employee's calling, the employer 7
must enter in the register particulars of the change and the date when the 8
change happened. 9
Maximum penalty--40 penalty units. 10
(5) An employee must inform the employer of-- 11
(a) the employee's residential address whenever asked by the 12
employer; and 13
(b) if the employee changes the employee's residential address--the 14
new address immediately. 15
Maximum penalty--40 penalty units. 16
(6) Particulars must be entered in a register opposite and relative to the 17
name of the employee to which they relate. 18
(7) If an employer carries on business at more than 1 place, the employer 19
must keep a register and index for each place. 20
to be kept in English 21
Records
397. A record or index kept under this part must be in the English 22
language. 23
of wages details 24
Notation
398.(1) When paying an employee wages, the employer must state how 25
the payment is made up by giving a written statement to the employee. 26
Maximum penalty--40 penalty units. 27
(2) The statement may be given on the employee's pay envelope or 28
advice and must include the following particulars-- 29
s 399 275 s 399
Workplace Relations
(a) the date of payment; 1
(b) the period covered by the payment; 2
(c) the number of hours covered by the payment at-- 3
(i) ordinary wage rate; and 4
(ii) overtime wage rate; 5
(d) the ordinary hourly rate and the amount paid at that rate; 6
(e) the overtime hourly rate and the amount paid at that rate; 7
(f) the gross wages paid; 8
(g) the net wages paid; 9
(h) details of any deductions made from the wages; 10
(i) the amount of contribution paid to a superannuation fund. 11
Division 4--Power to inspect certain records 12
of time and wages record--inspector 13
Inspection
399.(1) An inspector may inspect a time and wages record at a workplace 14
during the employer's business hours. 15
(2) The employer must allow the inspector to inspect the record. 16
Maximum penalty--40 penalty units. 17
(3) Subsection (4) applies if-- 18
(a) an employer does not produce the record to the inspector; or 19
(b) an inspector is obstructed during the inspection of the record; or 20
(c) an inspector wants to inspect the record of a former employer (the 21
"employer"). 22
(4) The inspector may, by notice, require the employer to produce the 23
record-- 24
(a) at-- 25
(i) a stated workplace of the employer; or 26
s 400 276 s 400
Workplace Relations
(ii) for an employer who has no official workplace or a former 1
employer--a reasonably convenient place nominated by the 2
inspector; and 3
(b) at a stated reasonable time. 4
(5) If the employer does not produce the record as required by the notice, 5
the employer is taken to have failed to keep the record, unless the employer 6
has a reasonable excuse. 7
(6) The notice may be given by post or in another way. 8
of entry--authorised industrial officer 9
Right
400.(1) An authorised industrial officer may enter a relevant workplace, 10
during the employer's business hours, to exercise a power under 11
section 401. 12
(2) The officer must give the employer at least 48 hours notice of the 13
officer's intention to enter. 14
(3) However, the registrar may, on the officer's application, waive the 15
requirement to give the notice if satisfied it is impracticable for the officer to 16
give the notice because of emergent reasons. 17
(4) The registrar must issue a certificate to the officer stating that the 18
employer's workplace is a relevant workplace if satisfied the certificate is 19
required to enable the officer to enter the workplace. 20
(5) On entering the workplace, the officer must first-- 21
(a) notify the employer or the employer's representative of the 22
officer's presence; and 23
(b) produce the officer's authorisation. 24
(6) An employer must not refuse an authorised industrial officer entry to 25
the workplace if the officer-- 26
(a) if notice has not been given in accordance with 27
subsection (2)--produces a copy of the registrar's waiver under 28
subsection (3); and 29
(b) if requested by the employer before entering the 30
workplace--produces a certificate; and 31
s 401 277 s 401
Workplace Relations
(c) complies with subsection (5). 1
Maximum penalty--27 penalty units. 2
(7) If the officer does not comply with subsection (5), the officer may be 3
treated as a trespasser. 4
(8) Subsection (5) does not apply if-- 5
(a) it is impracticable for the officer to give the notice because of the 6
remoteness of the workplace; or 7
(b) on entering the workplace, the officer discovers that neither the 8
employer nor an employer's representative having charge of the 9
workplace is present. 10
(9) In this section-- 11
"relevant workplace"-- 12
(a) means a workplace in or on which an employee who is a member 13
of the officer's organisation carries on a registered calling of the 14
officer's organisation; but 15
(b) does not include a place where the officer is required to be in the 16
course of the officer's employment with an employer, other than 17
the organisation. 18
of time and wages record--authorised industrial officer 19
Inspection
401.(1) Having entered the workplace under section 400, an authorised 20
industrial officer may inspect the time and wages record of-- 21
(a) a member employee; or 22
(b) an employee who is eligible to become a member of the officer's 23
organisation; or 24
(c) an employee who is a party to a QWA or ancillary document, but 25
only with the employee's written consent. 26
(2) The employer-- 27
(a) must allow the officer to inspect the record for an employee 28
mentioned in subsection (1)(a) or (b), unless the employee has 29
made a written request to the employer that the record not be 30
available for inspection by an authorised industrial officer or a 31
s 401 278 s 401
Workplace Relations
particular authorised industrial officer; and 1
(b) must not allow the officer to inspect the record for-- 2
(i) an employee who has made a written request to the 3
employer that the record not be available for inspection by an 4
authorised industrial officer or a particular authorised 5
industrial officer; or 6
(ii) an employee mentioned in subsection (1)(c), unless the 7
employee has given written consent. 8
Maximum penalty--27 penalty units. 9
(3) A person must not, by threats or intimidation, persuade or attempt to 10
persuade an employee or prospective employee to make, or refuse to make, 11
a written request to the employer or prospective employer that the record not 12
be available for inspection by an authorised industrial officer. 13
Maximum penalty--27 penalty units. 14
(4) If the employer keeps particulars other than those mentioned in 15
section 394(1)182 in the record, the employer need not make the other 16
particulars available for inspection. 17
(5) The officer may make a copy of the record, but can not require any 18
help from the employer. 19
(6) The officer may interview-- 20
(a) the employer about compliance with the relevant industrial 21
instrument or permit; and 22
(b) employees (either individually or together) during non-working 23
time. 24
(7) A person must not obstruct the officer exercising a power under 25
subsection (5) or (6). 26
Maximum penalty--27 penalty units. 27
(8) The officer must not-- 28
(a) wilfully obstruct an employee during the employee's working 29
time or the employer; or 30
182 Section 394 (Time and wages record--industrial instrument employees)
s 402 279 s 403
Workplace Relations
(b) contravene a requirement of this section. 1
Maximum penalty--27 penalty units. 2
(9) A person must not act as an authorised industrial officer under this 3
section, unless the person holds a current authorisation. 4
Maximum penalty--27 penalty units. 5
(10) In this section-- 6
"member employee" means an employee who is a member of the officer's 7
organisation. 8
"time and wages record" means the time and wages record required to be 9
kept under section 394. 10
of employee register and index--registrar 11
Inspection
402.(1) The registrar may inspect an employer's employee register and 12
index at the employer's workplace during the employer's business hours. 13
(2) The employer must allow the registrar to inspect the record or index. 14
Maximum penalty--40 penalty units. 15
(3) The registrar may, by notice, direct the employer to give the register 16
or index to a stated person, at a stated reasonable time and place if-- 17
(a) the registrar requires a register or index for the taking of a ballot; 18
or 19
(b) the court or commission orders the register or index be made 20
available for any other purpose. 21
(4) The employer must comply with the direction. 22
Maximum penalty--40 penalty units. 23
of time and wages book--employees 24
Inspection
403.(1) An employee may inspect the time and wages record for the 25
employee's particulars relating to the 12 month period before the inspection. 26
(2) At the employer's discretion, the employer may give the particulars to 27
the employee in writing. 28
s 404 280 s 404
Workplace Relations
(3) Unless the employer otherwise consents, the employee may inspect 1
the record only-- 2
(a) once in any 12 month period; and 3
(b) during the employer's business hours, but outside the employee's 4
working time. 5
ART 2--WAGES AND OCCUPATIONAL 6
P
SUPERANNUATION 7
1--Interpretation 8
Division
for pt 2 9
Definitions
404. In this part-- 10
"assignment" includes disposition and charge, whether legal or equitable. 11
"contracted work" means work that is, or is to be, performed under a 12
contract or undertaking (whether written or unwritten). 13
"employer", in division 2, means the person-- 14
(a) with whom a prime contractor has contracted to perform work; or 15
(b) who has an obligation to a prime contractor to perform work. 16
"fixed rate", in division 3,183 means the rate fixed by an industrial 17
instrument or permit. 18
"mine", in division 4,184 means a mine within the meaning of the Mines 19
Regulation Act 1964. 20
"mortgagee", in division 4, means a person entitled to payment under the 21
security of an instrument of mortgage, crop lien, stock mortgage or bill 22
of sale. 23
183 Division 3 (Paying and recovering wages)
184 Division 4 (Wages in rural and mining industries)
s 405 281 s 406
Workplace Relations
"mortgagor", in division 4, means a person liable to pay a mortgagee 1
under an instrument of mortgage, crop lien, stock mortgage or bill of 2
sale. 3
"prime contractor"-- 4
(a) means a person (the "contractor") who contracts with someone 5
else for the performance of work by the other person, or at whose 6
request, or on whose credit or behalf and with whose knowledge 7
and consent, work is performed; and 8
(b) includes a person, claiming under the contractor, whose rights are 9
acquired after the work begins. 10
"rate", in division 3, includes price. 11
"subcontractor" means a person who contracts with an employer to 12
perform work to discharge the employer's obligation to a prime 13
contractor. 14
to service 15
References
405. A reference in this part to service on a person includes reference to 16
service on the person's agent. 17
Division 2--Protection for wages 18
are first charge on amounts payable to employer 19
Wages
406.(1) Wages payable to employees employed on any contracted work 20
are, subject to the prime contractor's rights as prescribed under this Act, a 21
first charge on the amount payable to the employer by the prime contractor 22
for the work. 23
(2) Until a notice of attachment under section 409185 is served on the 24
prime contractor, the prime contractor may pay the employer all amounts 25
payable for the contracted work. 26
185 Section 409 (Attachment notices)
s 407 282 s 408
Workplace Relations
of amount payable ineffectual against claims for wages 1
Assignment
407.(1) This section applies to an assignment by an employer of amounts 2
that have become, or are to become, payable to the employer by a prime 3
contractor for contracted work. 4
(2) The assignment is of no effect as against wages payable, or to 5
become payable, to employees employed by the employer in performance 6
of the work. 7
(3) Subsection (2) does not apply if the assignment is to the employees 8
employed by the employer in performance of the work concerned for wages 9
payable, or to become payable, to them for performing the work. 10
paid or payable to employer to be applied in payment of 11
Amounts
wages 12
408.(1) This section applies to amounts paid or payable to an employer 13
by a prime contractor for contracted work. 14
(2) The amount is not liable to be attached or charged, except by 15
employees mentioned in subsection (5), until all wages payable, or to 16
become payable, to the employees have been properly paid to them or have 17
been secured to them in a way approved by a magistrate. 18
(3) The employer must apply the amounts received, to the extent 19
necessary, in payment of wages payable, or to become payable, to 20
employees employed by the employer in performance of work for which 21
the amounts are received. 22
Maximum penalty--40 penalty units. 23
(4) The employer must keep an accurate written account of the amounts 24
received from the prime contractor, and of the way the amounts have been 25
disbursed or disposed of. 26
Maximum penalty--40 penalty units. 27
(5) The employer must produce the account for inspection to an 28
employee mentioned in subsection (3)-- 29
(a) whose wages are more than 8 days in arrears and are not paid 30
when demanded; and 31
(b) who asks to see the account. 32
s 409 283 s 410
Workplace Relations
Maximum penalty--40 penalty units. 1
(6) The employer must allow the employee to make a copy of the 2
account. 3
Maximum penalty--40 penalty units. 4
notices 5
Attachment
409. An employee whose wages remain unpaid for 24 hours after they 6
are payable and have been demanded by the employee, may serve the prime 7
contractor with an attachment notice in the form approved by the chief 8
executive for the purpose. 9
of attachment notice 10
Effect
410.(1) This section applies if an attachment notice is served on the prime 11
contractor. 12
(2) The prime contractor must retain from the amounts payable, or to 13
become payable, by the prime contractor to the employer for the contracted 14
work an amount sufficient to satisfy-- 15
(a) the claim for wages specified in the notice; and 16
(b) all further claims for wages specified in notices of attachment 17
served on the prime contractor within 7 days after the service of 18
the first notice. 19
(3) At the end of the 7 day period, the amount claimed as wages and 20
specified in the notices is attached in the prime contractor's hands, and must 21
be kept by the prime contractor until-- 22
(a) a magistrate orders to whom, and in what way, the amount must 23
be paid; or 24
(b) the prime contractor deals with the amount under subsection (4); 25
or 26
(c) the notices are withdrawn. 27
(4) After being served with a notice, the prime contractor may pay the 28
amount to which the notice relates to a clerk of the Magistrates Court until-- 29
(a) a magistrate makes an order in relation to the amount; or 30
s 411 284 s 411
Workplace Relations
(b) the notice is withdrawn. 1
(5) The payment-- 2
(a) must be accompanied by the notice or a copy of it; and 3
(b) is a full discharge of the prime contractor from liability for the 4
amount paid and costs of a proceeding for the amount. 5
(6) An amount paid to a clerk of the Magistrates Court may be paid out 6
only-- 7
(a) on the order of a magistrate; or 8
(b) if the relevant attachment notice is withdrawn. 9
(7) A prime contractor who fails to keep, or to pay under subsection (4), 10
an amount required by subsection (2) or (3) to be kept is personally liable to 11
each employee in the amount of the employee's claim for wages stated in 12
the employee's attachment notice served on the prime contractor. 13
(8) An employee who has served an attachment notice on a prime 14
contractor may withdraw the notice by giving notice of withdrawal to-- 15
(a) the prime contractor; and 16
(b) the employer to whom amounts are payable, or are to become 17
payable, by the prime contractor. 18
for payment by prime contractor or clerk of the court 19
Orders
411.(1) Subsection (2) applies if an employee who served an attachment 20
notice on a prime contractor obtains judgment from a magistrate against the 21
employer for the claim for wages. 22
(2) The magistrate may order the judgment be satisfied, in whole or part, 23
by payment of a stated amount-- 24
(a) from amounts paid to the clerk of the Magistrates Court under 25
section 410(4); or 26
(b) if no amount was paid to the clerk under section 410(4) or the 27
amount paid was not enough to cover the amount ordered to be 28
paid by the magistrate--by the prime contractor. 29
(3) In deciding the amount that should be ordered to be paid for an 30
employee's claim, the magistrate must take into account the existence of 31
s 412 285 s 412
Workplace Relations
claims for wages of other employees of the employer of which the 1
magistrate has knowledge. 2
(4) Subject to any appeal against the magistrate's decision, the clerk or 3
prime contractor must pay the amount stated in the relevant order to the 4
employee from the amounts-- 5
(a) paid to the clerk under section 410(4); or 6
(b) attached and kept in the hands of the prime contractor. 7
(5) Payment must be made within 21 days after a copy of the order is 8
served on the clerk or prime contractor. 9
(6) If an appeal is started and notice of it served, the clerk or prime 10
contractor must continue to keep or hold the amounts from which payment 11
is to be made until the appeal is finally decided or discontinued. 12
(7) The prime contractor is not liable to a greater extent than the amount 13
actually payable by the prime contractor to the employer when-- 14
(a) the order is served; or 15
(b) payment is made under the order; 16
whichever is the greater. 17
to be paid according to when attachment notices are served 18
Employees
412.(1) Subject to sections 409 to 411,186 an amount attached in the 19
hands of a prime contractor, or paid to a clerk of the Magistrates Court, is to 20
be paid in priority according to the order of the service of the relevant 21
attachment notices. 22
(2) However, for this section, all notices served within 7 days after the 23
service of the first notice are-- 24
(a) taken to have been served simultaneously with the first notice; and 25
(b) accorded equal priority to distribution of the amount attached or 26
paid. 27
186 Section 409 (Attachment notices)
Section 410 (Effect of attachment notice)
Section 411 (Orders for payment by prime contractor or clerk of the court)
s 413 286 s 413
Workplace Relations
(3) The claims for wages of all employees who are taken to have served 1
notices simultaneously must be paid in full, unless the amounts attached in 2
the hands of the prime contractor or held by the clerk are insufficient for the 3
purpose. 4
(4) If the amounts are insufficient for the purpose, the claims are to abate 5
in equal proportions among themselves. 6
may sue prime contractor 7
Employee
413.(1) Subsection (2) applies if-- 8
(a) a prime contractor is served with a copy of the magistrate's order 9
made under section 411(2);187 and 10
(b) the amount stated in the order and payable by the prime contractor 11
is not paid in accordance with the order. 12
(2) The employee in whose favour the order is made may, in an 13
Industrial Magistrates Court and in the employee's own name, sue the 14
prime contractor for the amount stated in the order and unpaid, by way of 15
any action or proceeding the employer could have brought against the prime 16
contractor as if-- 17
(a) there been no attachment of amounts under this part; and 18
(b) the amounts required by the attachment under section 409188 to be 19
kept were payable to the employer and unpaid. 20
(3) The employee's entitlement is subject to the prime contractor's right 21
to set off against the employee's claim all amounts-- 22
(a) properly paid by the prime contractor to the employer under 23
section 406(2);189 and 24
(b) the employer was, when the notice was served on the prime 25
contractor, liable to pay the prime contractor for a breach, or 26
187 Section 411 (Orders for payment by prime contractor or clerk of the court)
188 Section 409 (Attachment notices)
189 Section 406 (Wages are first charge on amounts payable to employer)
s 414 287 s 416
Workplace Relations
non-performance, of the contract or undertaking in performance 1
of which the relevant work is or is to be performed. 2
of attachment not to prejudice prime contractor 3
Cessation
414.(1) This section applies if an order under section 411190 stops 4
operating because-- 5
(a) of satisfaction of the employee's claim; or 6
(b) it is set aside. 7
(2) A prime contractor who has paid in accordance with the order, before 8
receiving notice of the satisfaction or setting aside, is not to be prejudiced in 9
relation to the payment because the order stopped operating. 10
by employee for payment received 11
Discharge
415. An employee who receives an amount for a claim for wages to 12
which an order under section 411191 relates must sign a discharge for the 13
amount, in the form approved by the chief executive for the purpose, if 14
asked by the person making the payment. 15
of subcontractor's employees 16
Remedy
416.(1) If an employer has let the performance of work to a 17
subcontractor, an employee employed by the subcontractor in that work has 18
the same rights and remedies for a claim for wages against the employer 19
under this division as an employee of the employer has against a prime 20
contractor. 21
(2) For subsection (1), in construing this division (other than 22
section 404192 and this section) the term `employer' is substituted for the 23
term `prime contractor' and the term `subcontractor' is substituted for the 24
term `employee'. 25
190 Section 411 (Orders for payment by prime contractor or clerk of the court)
191 Section 411 (Orders for payment by prime contractor or clerk of the court)
192 Section 404 (Definitions for pt 2)
s 417 288 s 419
Workplace Relations
contractor's right to reimbursement 1
Prime
417.(1) This section applies if-- 2
(a) a prime contractor has paid a claim for wages payable to an 3
employee of the employer, in satisfaction of the prime 4
contractor's obligations under this division; and 5
(b) either of the following happens-- 6
(i) for an employer who is a corporation--winding-up 7
proceedings are commenced; 8
(ii) for an employer who is an individual--the employer's assets 9
are distributed in insolvency of the employer or in a 10
composition with the employer's creditors. 11
(2) The prime contractor is taken to have a claim for wages against the 12
employer's assets, which is a preferential claim, as if the prime contractor 13
were an employee of the employer to whom wages were payable by the 14
employer. 15
(3) This section applies only to the extent that a State law may validly 16
apply to the distribution of assets. 17
may hear claim for wages ex parte 18
Magistrate
418. A magistrate may hear and decide a proceeding for a claim for 19
wages in the absence of a person to whom the originating process is 20
directed on proof, on oath or affirmation, of the service of the process. 21
3--Paying and recovering wages 22
Division
to be paid without deduction 23
Wages
419.(1) If an employer employs an employee to perform work for a 24
fixed rate, the employer must pay the employee the fixed rate without 25
deduction, other than a deduction authorised by-- 26
(a) a relevant industrial instrument; or 27
(b) this division; or 28
(c) the employee's written consent. 29
s 420 289 s 420
Workplace Relations
(2) If-- 1
(a) an employer employs an employee to perform work for a rate 2
agreed between the employer and the employee; and 3
(b) either the rate for the work is not fixed by a relevant industrial 4
instrument or permit or the fixed rate is less than the agreed rate; 5
the employer must pay the employee the agreed rate without deduction, 6
other than a deduction authorised by this division or the employee's written 7
consent. 8
(3) A contract or authority is void to the extent it provides for a deduction 9
to be made from wages in contravention of this section. 10
wages 11
Paying
420.(1) Wages payable to an employee must be paid at least monthly to 12
the employee. 13
Maximum penalty--16 penalty units. 14
(2) The wages must be paid-- 15
(a) in Australian currency; or 16
(b) with the employee's written consent-- 17
(i) wholly or partly to the employee's credit in an account with a 18
financial institution nominated by the employee; or 19
(ii) by cheque of a type mentioned in subsection (5), draft, 20
money order or electronic fund transfer; or 21
(c) in another way allowed under a relevant industrial instrument. 22
Maximum penalty--16 penalty units. 23
(3) If-- 24
(a) wages are to be paid in cash; and 25
(b) the amount is not a multiple of 5c; 26
the amount may be rounded to the nearest amount that is a multiple of 5c, 27
even if this involves a reduction. 28
(4) If wages are to be paid other than in cash, they are to be paid without 29
s 421 290 s 421
Workplace Relations
deduction of any charge made because of the way payment is made. 1
Maximum penalty--16 penalty units. 2
(5) Except with the employee's written consent, a cheque by which 3
wages are paid-- 4
(a) must be payable to a bearer on demand; and 5
(b) must not be crossed. 6
(6) If wages are payable to an employee when the employee stops 7
employment with the employer, the wages must be paid to the employee 8
within 3 days after the employment stops, unless-- 9
(a) section 422193 applies; or 10
(b) the employer has complied with an inspector's demand under 11
section 386.194 12
Maximum penalty--40 penalty units. 13
(7) If an employee accepts for wages a cheque, draft or money order that 14
is dishonoured, the employee may recover from the employer by action in a 15
court of competent jurisdiction as a debt payable to the employee-- 16
(a) the wages payable; and 17
(b) a reasonable amount for damages suffered by the employee 18
because of the dishonour. 19
(8) A contract or authority is void to the extent it provides for payment of 20
wages other than under this section. 21
not to stipulate mode of spending wages 22
Contract
421.(1) Subject to this division, an employer is not, directly or indirectly, 23
to impose as a condition, express or implied, of an employee's 24
employment, a provision about the place where, way in which, or person 25
with whom an employee's wages, or a part of the wages, are to be spent. 26
Maximum penalty--16 penalty units. 27
193 Section 422 (Payment of unpaid wages etc. if employee's whereabouts unknown)
194 Section 386 (Paying employee's wages etc. to inspector)
s 422 291 s 422
Workplace Relations
(2) An employer must not dismiss an employee because the employee's 1
wages, or a part of the wages, are spent, or not spent, at a place, in a way, or 2
with a person.195 3
of unpaid wages etc. if employee's whereabouts unknown 4
Payment
422.(1) Subsection (2) applies if-- 5
(a) an employer can not comply with section 419(6)196 because the 6
former employee's whereabouts are unknown to the employer 7
and can not be discovered by the employer with reasonable 8
diligence; and 9
(b) the inability continues for 30 days after cessation of employment 10
by the former employee. 11
(2) The employer, immediately at the end of the 30 days, must pay the 12
wages payable to the former employee to the nearest clerk of the 13
Magistrates Court. 14
Maximum penalty--40 penalty units. 15
(3) The receipt of the clerk for the payment is a full discharge to the 16
employer for the amount stated in the receipt. 17
(4) The clerk must pay the amount-- 18
(a) if the former employee's whereabouts are discovered--to the 19
former employee; or 20
(b) if at the end of a further 30 days, the amounts have not been paid 21
to the former employee--to the department's funds for the 22
former employee. 23
(5) This section does not apply if the employer has complied with an 24
inspector's demand made under section 386.197 25
195 See section 217 (When dismissal is unlawful)
196 Section 419 (Wages to be paid without deduction)
197 Section 386 (Paying employee's wages etc. to inspector)
s 423 292 s 424
Workplace Relations
of wages etc. 1
Recovery
423.(1) An application may be made to a magistrate for an order for 2
payment of wages payable to an employee that are unpaid. 3
(2) The application may be made by-- 4
(a) the employee; or 5
(b) an employee organisation of which the employee is a member, 6
acting for the employee; or 7
(c) a person authorised by the employee to make the application, and 8
acting for the employee; or 9
(d) an inspector. 10
(3) The application must be made within 6 years after the wages became 11
payable. 12
(4) On hearing the application, the magistrate-- 13
(a) must order the employer to pay the employee the amount the 14
magistrate finds to be payable and unpaid to the employee within 15
the 6 years before the date of the application; and 16
(b) may make an order for the payment despite an express or implied 17
provision of an agreement to the contrary; and 18
(c) may order the payment to be made on the terms the magistrate 19
considers appropriate; and 20
(d) may award costs to either party in an amount assessed by the 21
magistrate. 22
of magistrate's order 23
Enforcement
424.(1) This section applies to an order of a magistrate for payment by an 24
employer of-- 25
(a) wages found to be payable; or 26
(b) contributions to an approved superannuation fund found to be 27
payable; or 28
(c) costs in a proceeding relating to unpaid amounts mentioned in 29
paragraph (a) or (b). 30
s 425 293 s 426
Workplace Relations
(2) The order is enforceable under the Justices Act 1886 as an order for 1
payment of money made by justices under that Act. 2
(3) If an order is made, the amount ordered to be paid (including costs) is 3
a debt payable to the person, in whose favour the order is made, by the 4
employer. 5
(4) The order may be filed in the registry of a Magistrates Court under 6
the Magistrates Courts Act 1921, and on being filed-- 7
(a) is taken to be an order properly made by a Magistrates Court; and 8
(b) without limiting subsection (2), may be enforced as an order 9
made by a Magistrates Court. 10
from employee of amounts overpaid 11
Recovery
425.(1) This division does not prevent an employer recovering an 12
amount paid to an employee that the employee is not entitled to because of 13
absence from work. 14
(2) Without limiting the employer's right to recover, the employer may 15
recover the amount by deducting amounts from the employee's wages for a 16
subsequent pay period or periods. 17
(3) Deductions under subsection (2)-- 18
(a) must be commenced within 1 year after the payment; and 19
(b) may extend over a period of 6 years after the payment. 20
(4) A deduction can not be made in an amount that would reduce the 21
wages payable to the employee for a pay period to less than an amount 22
prescribed under a regulation. 23
in default of notice of termination 24
Deduction
426.(1) This section applies if-- 25
(a) an employment contract is governed by an industrial instrument 26
that provides for notice of termination of the employment for a 27
specified period; and 28
(b) an employee ceases the employment without giving the employer 29
the notice for the specified period. 30
s 427 294 s 428
Workplace Relations
(2) The employer may deduct from wages payable to the employee an 1
amount stated by the instrument to be forfeited or payable to the employer if 2
notice of termination is not given by an employee for the period specified. 3
may sue 4
Minor
427. A minor may sue, or bring another proceeding under this division, 5
for wages payable to the minor as an employee, in the same way and to the 6
same extent as if the minor were 18 years. 7
Division 4--Wages in rural and mining industries 8
recoverable against mortgagee if mortgagor defaults 9
Wages
428.(1) This section applies if an employee-- 10
(a) has performed work-- 11
(i) in cultivating, or otherwise improving, land that is subject to 12
a mortgage; or 13
(ii) in cultivating, or otherwise in connection with, a crop that is 14
subject to a lien; or 15
(iii) relating to animal or vegetable matter prepared or 16
manufactured by machinery that is subject to a bill of sale; or 17
(iv) in tending, feeding, driving, or otherwise in connection with, 18
stock that is subject to a mortgage; and 19
(b) is prevented from, or hindered in, recovering wages for the work 20
from the mortgagor as employer because-- 21
(i) the mortgagee has entered into, or taken possession of the 22
land, crop, machinery or stock, or is taken to have done so; 23
or 24
(ii) the mortgagee has sold the land, crop, machinery or stock, 25
under the mortgagee's security; or 26
(iii) a cheque, draft or order drawn by the mortgagor on the 27
mortgagee is dishonoured by the mortgagee. 28
(2) The mortgagee is taken to be the employee's employer for the 29
s 429 295 s 429
Workplace Relations
performance of the work. 1
(3) The mortgagor is taken, in engaging the employee for the work, to 2
have acted as the mortgagee's authorised agent. 3
(4) Subsections (2) and (3) do not affect appropriate accounting as 4
between the mortgagor and the mortgagee. 5
(5) A mortgagee is not liable for the employee's wages that have become 6
payable more than 6 months before whichever of the following events 7
happens first-- 8
(a) the employee first applies to the mortgagee for payment of the 9
wages; 10
(b) the mortgagee takes possession of, or sells, the land, crop, 11
machinery or stock. 12
(6) The mortgagee's liability under this section-- 13
(a) is additional to the mortgagor's liability for the employee's 14
wages; and 15
(b) does not affect rights, liabilities, functions and powers as between 16
the mortgagor and employee. 17
(7) An employee does not lose a right to bring a proceeding against the 18
mortgagee for unpaid wages, and costs of the proceeding, if the employee-- 19
(a) brings a proceeding against a mortgagor for wages (whether or 20
not the employee obtains an order for payment against the 21
mortgagor); and 22
(b) because of a reason in subsection (1)(b), fails to obtain payment 23
of the wages, or part of the wages, from the mortgagor. 24
warrant levied on property of mortgagor or mortgagee 25
Distress
429.(1) A warrant of distress issued to enforce an order for payment of 26
wages payable to an employee for work performed in connection with 27
property mentioned in section 428(1), as far as the land, crop, machinery or 28
stock is concerned-- 29
(a) authorises distress on and sale of the mortgagee's property and 30
the mortgagor's property; and 31
s 430 296 s 430
Workplace Relations
(b) may be executed on the mortgaged land or the encumbered crop, 1
machinery, or stock even though the mortgagee has entered into 2
or taken possession of the land, crop, machinery or stock, or is 3
taken to have done so, under the mortgagee's security. 4
(2) An amount paid by, or recovered from, the mortgagee for the 5
wages-- 6
(a) is taken to be an advance made by the mortgagee to the mortgagor 7
under the mortgagee's security; and 8
(b) may be recovered by the mortgagee under the security. 9
(3) In this section-- 10
"land" includes the fixtures on the land. 11
of ss 428 and 429 to mines 12
Application
430.(1) Sections 428198 and 429 apply, with necessary changes, if an 13
employee-- 14
(a) has performed work in or about-- 15
(i) a mine (including its fixtures) that is subject to a mortgage; 16
or 17
(ii) machinery or apparatus, used in or for a mine, that is subject 18
to a bill of sale; and 19
(b) is prevented from, or hindered in, recovering wages for the work 20
from the mortgagor as employer because-- 21
(i) the mortgagee has entered into, or taken possession of the 22
mine, machinery or apparatus, or is taken to have done so; or 23
(ii) has sold the mine, machinery or apparatus, under the 24
mortgagee's security; or 25
(iii) a cheque, draft or order drawn by the mortgagor on the 26
mortgagee is dishonoured by the mortgagee. 27
(2) However, a mortgagee is not liable for the employee's wages that 28
have become payable more than 1 month before whichever of the following 29
198 Section 428 (Wages recoverable against mortgagee if mortgagor defaults)
s 431 297 s 431
Workplace Relations
events happens first-- 1
(a) the employee first applies to the mortgagee for payment of the 2
wages; 3
(b) the mortgagee takes possession of, or sells, the mine, machinery 4
or apparatus. 5
(3) In this section-- 6
"wages" for work includes earnings for work. 7
in payment of wages earned in mine 8
Priority
431.(1) An amount of wages, of not more than 4 weeks, payable to an 9
employee for employment in or about a mine-- 10
(a) is a first charge on the claim or land in or on which the mine is 11
situated; and 12
(b) in the winding-up of a corporation formed for or engaged in 13
working the mine, must be paid in priority to all other debts, 14
secured or unsecured, of the corporation. 15
(2) Subsection (1)(a) applies even though-- 16
(a) the claim or land is mortgaged or charged to secure payment of 17
other amounts; or 18
(b) there is a lien on the claim or land. 19
(3) Subsection (1)(b) applies only to the extent that a law of the State may 20
validly apply to the distribution of assets in a winding-up. 21
(4) If a first charge exists under subsection (1)(a), the amount charged 22
includes-- 23
(a) all amounts awarded by a court as costs against an employer in a 24
proceeding brought by or for an employee to recover the wages 25
mentioned in the subsection; and 26
(b) the amount of costs, charges and expenses reasonably incurred in 27
attempting to enforce an order or orders for payment of the 28
wages. 29
(5) The debts that are a first charge under subsection (1)(a) or are to be 30
paid in priority under subsection (1)(b)-- 31
s 432 298 s 433
Workplace Relations
(a) rank equally among themselves; and 1
(b) if necessary, abate in equal proportions among themselves. 2
(6) In this section-- 3
"wages" for work includes earnings for work. 4
5--Occupational superannuation 5
Division
about superannuation fund 6
Agreement
432.(1) This section applies if an industrial instrument requires an 7
employer to pay contributions to a specified superannuation fund. 8
(2) Despite the instrument, the required contributions may be paid to a 9
complying superannuation fund agreed to by the employer and employee. 10
(3) The agreement must be written and signed by the employer and 11
employee. 12
(4) A person must not coerce someone else to make an agreement 13
mentioned in subsection (3). 14
Maximum penalty for subsection (4)--40 penalty units. 15
occupational superannuation 16
Contributing
433.(1) An employer must contribute, for eligible employees, to the 17
approved superannuation fund at the level required by the relevant industrial 18
instrument. 19
Maximum penalty--40 penalty units. 20
(2) The offence is a continuing offence that may be charged in 21
1 complaint for a period. 22
(3) An employer who contributed-- 23
(a) to a complying superannuation fund at a level required by a 24
relevant industrial instrument; but 25
(b) to a fund that is not the approved superannuation fund; 26
does not commit an offence unless the employer has knowingly 27
s 434 299 s 434
Workplace Relations
contravened the instrument. 1
(4) If the commission makes an order under section 434(1), an employer 2
who fails to contribute in accordance with the order is taken to fail to make 3
the contribution under the relevant industrial instrument, whether or not the 4
order was directed to that employer. 5
(5) The court by which a defendant is found guilty of an offence under 6
subsection (1) may make, in relation to the defendant, an order that a 7
magistrate is authorised by section 435199 to make on an application under 8
that section, and that section applies and extends accordingly. 9
to order superannuation contribution to particular fund 10
Power
434.(1) This section applies if-- 11
(a) an industrial matter relates to an allegation that an employer has 12
been, or is, contributing to a complying superannuation fund for 13
employees at a level required by a relevant industrial instrument; 14
but 15
(b) the fund is not the approved superannuation fund. 16
(2) The commission, of its own initiative or on application by an 17
inspector, organisation or employee concerned, may-- 18
(a) determine which complying superannuation fund the employer 19
should have been, or should be, contributing to to comply with 20
the relevant industrial instrument; and 21
(b) order the employer to contribute accordingly. 22
(3) If the commission considers it appropriate, the commission may 23
make its order to operate from the date when a particular employee became 24
eligible for payment of contribution to the fund determined by the 25
commission. 26
(4) The commission may recognise all or any of the contribution made 27
by an employer to a complying superannuation fund up to and including the 28
date of the commission's determination as having met the requirements, or 29
199 Section 435 (Magistrate's power for unpaid superannuation contribution)
s 435 300 s 435
Workplace Relations
a part of them, of a relevant industrial instrument, relating to employers' 1
contribution to the approved superannuation fund. 2
power for unpaid superannuation contribution 3
Magistrate's
435.(1) An application may be made to a magistrate for an order for 4
payment of contributions to the approved superannuation fund payable for 5
an eligible employee that are unpaid. 6
(2) The application may be made by-- 7
(a) an inspector; or 8
(b) an employee who is an eligible employee on whose behalf an 9
employer is required to contribute to an approved superannuation 10
fund; or 11
(c) an employee organisation of which an employee mentioned in 12
paragraph (b) is a member. 13
(3) The application must be made within 6 years after the contributions 14
became payable. 15
(4) On hearing the application, the magistrate must order the employer to 16
pay the employee-- 17
(a) the amount the magistrate finds to be payable and unpaid to the 18
employee within the 6 years before the date of the application; and 19
(b) an amount the magistrate considers appropriate, based on the 20
return that would have accrued in relation to the contribution had it 21
been properly paid to the fund. 22
(5) The order must require the amount to be paid to-- 23
(a) if the employee is employed by the employer--the approved 24
superannuation fund; or 25
(b) if the employee is no longer employed by the employer-- 26
(i) the approved superannuation fund; or 27
(ii) a complying superannuation fund; or 28
(iii) a superannuation fund nominated by the employee; or 29
(iv) an eligible rollover fund; or 30
s 436 301 s 436
Workplace Relations
(v) if the amount is less than the amount of total benefits that 1
may revert to an employee under the Superannuation 2
Industry (Supervision) Act 1993 (Cwlth)--the employee. 3
(6) The amount must be paid into the unclaimed moneys fund in the 4
Treasury, if a former employee in relation to whom an order is made-- 5
(a) can not be located after reasonable inquiry; or 6
(b) does not nominate a superannuation fund for the purpose of the 7
order, if required by the order to do so. 8
(7) The magistrate-- 9
(a) may order payment on the terms the magistrate considers 10
appropriate; and 11
(b) may order costs, or make no order for costs, as the magistrate 12
considers appropriate. 13
CHAPTER 10--OFFENCES 14
of court 15
Contempt
436.(1) The court has all the protection, powers, jurisdiction and authority 16
possessed by the Supreme Court in relation to contempt of court. 17
(2) In the court's exercise of the protection, powers, jurisdiction and 18
authority, the Rules of the Supreme Court relating to contempt of court 19
apply, with necessary changes, and must be complied with. 20
(3) The registrar or another officer of the court may apply to the court for 21
an order that a person be committed to prison for contempt of court. 22
(4) The court's jurisdiction to punish a contempt of the court may be 23
exercised by-- 24
(a) for a contempt committed in the face and hearing of the 25
court--the president, on the president's own initiative; or 26
(b) otherwise--the full court. 27
s 437 302 s 438
Workplace Relations
(5) The court has jurisdiction to punish an act or omission as a contempt 1
of the court, although a penalty is prescribed for the act or omission. 2
penalty orders 3
Disobeying
437.(1) A person must obey a penalty order, unless the person has a 4
reasonable excuse. 5
Maximum penalty--the penalty provided for in the order. 6
(2) In this section-- 7
"penalty order" means an order of the court or commission that provides 8
for payment of a penalty if the order is disobeyed. 9
conduct towards member of the commission, magistrate or 10
Improper
registrar 11
438.(1) A person must not-- 12
(a) wilfully insult or disturb an official; or 13
(b) use insulting language to an official; or 14
(c) interrupt an industrial tribunal's proceeding; or 15
(d) by writing or speech, use words intended to-- 16
(i) improperly influence an official; or 17
(ii) improperly influence a witness before an industrial tribunal; 18
or 19
(iii) bring an official or industrial tribunal into disrepute. 20
Maximum penalty--40 penalty units or 1 year's imprisonment. 21
(2) A person who commits an offence under this section before an 22
industrial tribunal may, by the tribunal's order, be excluded from the place 23
where the tribunal is sitting. 24
(3) The making of an order under subsection (2) does not affect the 25
offender's liability to be punished for the offence. 26
(4) A police officer, or a person acting under the authority of the 27
industrial tribunal, may enforce the tribunal's order, using necessary 28
reasonable force. 29
s 439 303 s 440
Workplace Relations
(5) In this section-- 1
"industrial tribunal" means the commission, an Industrial Magistrates 2
Court, or the registrar acting as registrar under this or another Act. 3
"official" means a member of the commission, a magistrate or the registrar 4
exercising jurisdiction or powers or performing functions under this or 5
another Act. 6
near tribunals 7
Disturbances
439. A person must not create, take part in, or continue a disturbance in 8
or near a place where the court, the commission, an Industrial Magistrates 9
Court or the registrar is sitting for this or another Act. 10
Maximum penalty--40 penalty units or 1 year's imprisonment. 11
by witness 12
Contempt
440.(1) A person must not, without lawful excuse-- 13
(a) if called to appear as a witness before an industrial 14
tribunal--disobey the summons; or 15
(b) if appearing as a witness before an industrial tribunal, whether or 16
not in response to a summons-- 17
(i) refuse to be sworn or to make an affirmation or declaration 18
as a witness; or 19
(ii) refuse to answer a question that the person is required by the 20
tribunal to answer; or 21
(iii) refuse to produce records that the person is required by the 22
tribunal to produce. 23
Maximum penalty--40 penalty units. 24
(2) In this section-- 25
"industrial tribunal" means the court, the commission, an Industrial 26
Magistrates Court or the registrar conducting a proceeding under this 27
or another Act. 28
s 441 304 s 442
Workplace Relations
or misleading statements 1
False
441.(1) A person must not state anything to an official for this Act that 2
the person knows is false or misleading in a material particular. 3
Maximum penalty--40 penalty units. 4
(2) It is enough for a complaint against a person for an offence against 5
subsection (1) to state that the statement made was `false or misleading' to 6
the person's knowledge. 7
(3) A person must not be prosecuted for an offence under this section if 8
the person can be prosecuted for an offence under section 105 or 298.200 9
(4) In this section-- 10
"official" means an inspector or the registrar. 11
misleading or incomplete documents 12
False,
442.(1) A person must not, for this Act, give an official a document 13
containing information the person knows is false, misleading or incomplete 14
in a material particular. 15
Maximum penalty--40 penalty units. 16
(2) Subsection (1) does not apply to a person if the person, when giving 17
the document-- 18
(a) informs the official, to the best of the person's ability, how it is 19
false, misleading or incomplete; and 20
(b) if the person has, or can reasonably obtain, the correct 21
information--gives the correct information. 22
(3) A person must not make an entry in a document required or 23
permitted to be made or kept under this Act knowing the entry to be false, 24
misleading or incomplete in a material particular. 25
Maximum penalty--40 penalty units. 26
(4) It is enough for a complaint against a person for an offence against 27
200 Section 105 (Person must not apply duress or make false statements in
connection with QWA etc.)
Section 298 (Power to enter and inspect)
s 443 305 s 443
Workplace Relations
subsection (1) or (3) to state that the statement made was `false, misleading 1
or incomplete' to the person's knowledge. 2
(5) A person must not be prosecuted for an offence under this section if 3
the person can be prosecuted under section 83 or 298.201 4
(6) In this section-- 5
"official" means an inspector, an authorised industrial officer or the 6
registrar. 7
officers 8
Obstructing
443.(1) A person must not-- 9
(a) obstruct an officer exercising a power, or performing a function, 10
under this or another Act; or 11
(b) if lawfully required by an officer to produce or exhibit a 12
document, or to allow a document to be examined--fail to 13
comply with the request, unless the person has a reasonable 14
excuse; or 15
(c) wilfully mislead an officer in a way likely to affect the 16
performance of the officer's function; or 17
(d) if lawfully asked a question for this or another Act by an 18
officer--fail to answer the question truthfully and to the best of 19
the person's knowledge, information and belief. 20
Maximum penalty--40 penalty units. 21
(2) A person must not be prosecuted for an offence under subsection (1) 22
if the person can be prosecuted under section 298.202 23
(3) In this section-- 24
"officer" means an officer of the court or commission. 25
201 Section 83 (Employer's declaration must be accurate) or 298 (Power to enter and
inspect)
202 Section 298 (Power to enter and inspect)
s 444 306 s 445
Workplace Relations
Act's obligations 1
Avoiding
444.(1) An employer, with intent to avoid an obligation under this Act to 2
pay an employee for a public holiday or accrued leave, must not-- 3
(a) dismiss the employee; or 4
(b) if the employee's entitlement to long service leave is worked out 5
under section 200 203 --interrupt the continuity of the employee's 6
service. 7
Maximum penalty--40 penalty units.. 8
(2) If the Industrial Magistrates Court finds an employer has contravened 9
subsection (1) in relation to long service leave, it must (in addition to any 10
order it may make imposing a penalty) order the defendant to pay the 11
dismissed employee a proportionate amount of long service leave on the 12
basis of 13 weeks leave for 15 years service. 13
(3) In this section-- 14
"dismiss" includes stand-down. 15
"leave" means annual, sick or long service leave. 16
"obligation" under this Act includes an obligation under an industrial 17
instrument. 18
of wages 19
Non-payment
445.(1) A person must pay wages payable to an employee under a 20
relevant industrial instrument or permit-- 21
(a) to the employee; or 22
(b) in accordance with the employee's written direction. 23
Maximum penalty--200 penalty units. 24
(2) An offence under subsection (1) may consist of-- 25
(a) a single failure to pay wages due on a particular day; or 26
(b) a failure to pay wages due over a period of time. 27
203 Section 200 (Service of casual employees)
s 446 307 s 447
Workplace Relations
(3) The offence starts on the day of the failure and continues until the 1
wages are paid. 2
(4) A complaint or a series of complaints may be made for any period 3
over which the offence continues. 4
(5) However, a complaint may only relate to offences that started within 5
6 years before the complaint is made. 6
(6) A magistrate may hear and decide a complaint for an offence under 7
this section, and in addition to any penalty that the magistrate may impose-- 8
(a) if the magistrate finds the defendant guilty--must order the 9
defendant to pay the employee the amount the magistrate finds to 10
be payable to the employee; or 11
(b) if the magistrate does not find the defendant guilty--may order 12
the defendant to pay the employee the amount the magistrate 13
finds, on the balance of probabilities, to be payable to the 14
employee. 15
(7) A magistrate may make the order-- 16
(a) despite an express or implied provision of an agreement to the 17
contrary; and 18
(b) on the terms the magistrate considers appropriate. 19
reduced wages 20
Accepting
446.(1) An employee must not enter into an agreement with an employer 21
to accept wages that, to the employee's knowledge, are reduced wages. 22
Maximum penalty--16 penalty units. 23
(2) The return by or for an employee, to or for the employer of a part of 24
wages paid under a relevant industrial instrument or permit for work 25
performed by the employee is evidence that the employee has entered into 26
an agreement mentioned in subsection (1). 27
statement about employment on reduced wages 28
Publishing
447.(1) A person must not publish or cause to be published, whether or 29
not for reward, a statement that can be reasonably interpreted to state that a 30
s 447 308 s 447
Workplace Relations
person is ready and willing to-- 1
(a) employ a person on reduced wages; or 2
(b) be employed on reduced wages. 3
Maximum penalty--16 penalty units. 4
(2) A proceeding for an offence under subsection (1) may be 5
commenced against a publisher of the statement only if-- 6
(a) the publisher has been warned by an inspector that the publication 7
of the statement, or of a statement substantially similar, is an 8
offence under this Act; and 9
(b) the publisher has published, or caused the publication of, the 10
statement after receiving the warning; and 11
(c) the Minister's consent to the proceeding is obtained. 12
(3) A proprietor of a newspaper or advertising medium is taken to have 13
published the statement with knowledge of its unlawfulness, unless the 14
proprietor shows that the proprietor-- 15
(a) had taken all reasonable precautions against committing the 16
offence; and 17
(b) had reasonable grounds to believe, and did believe, the publication 18
to be lawful; and 19
(c) had no reason to suspect the publication was unlawful. 20
(4) In this section-- 21
"publish" includes-- 22
(a) exhibit; and 23
(b) broadcast; and 24
(c) publish to a person. 25
"publisher" means-- 26
(a) the printer or proprietor of a newspaper; or 27
(b) the distributor or seller of a newspaper; or 28
(c) the printer, maker, operator or proprietor of an advertising device 29
or advertising medium; or 30
s 448 309 s 449
Workplace Relations
(d) the printer of a document uttered for advertising purposes; or 1
(e) a person acting under the authority of a person mentioned in 2
paragraphs (a) to (d). 3
to offer or accept premiums 4
Offence
448.(1) This section applies subject to the Private Employment Agencies 5
Act 1983. 6
(2) A person must not-- 7
(a) offer an employment premium; or 8
(b) demand an employment premium; or 9
(c) ask for an employment premium; or 10
(d) accept, or agree to accept, an employment premium. 11
Maximum penalty--16 penalty units. 12
(3) If a court finds a person (the "defendant") guilty of accepting an 13
employment premium, it must (in addition to any penalty order it may 14
make) order the defendant to pay an amount, equivalent to the amount or 15
value of the premium, to the person from whom the defendant accepted the 16
premium. 17
(4) In this section-- 18
"employment premium" includes a consideration, gift, allowance or 19
forbearance for the employment of a person. 20
of awards, certified agreements or permits 21
Contraventions
449.(1) A person must not contravene an award, certified agreement or 22
permit.204 23
Maximum penalty-- 24
(a) for a first offence-- 25
(i) if the offender is an employer that is a body corporate or an 26
204 For the contravention of a QWA, see section 93 (Parties must not contravene
QWA)
s 450 310 s 450
Workplace Relations
organisation--80 penalty units; or 1
(ii) if the offender is an employer that is not a body 2
corporate--16 penalty units; or 3
(iii) if the offender is an employee--16 penalty units; or 4
(b) for a second or subsequent offence consisting of a contravention 5
of the same provision of the instrument or permit-- 6
(i) if the offender is an employer that is a body corporate or an 7
organisation--100 penalty units; or 8
(ii) if the offender is an employer that is not a body 9
corporate--20 penalty units; or 10
(ii) if the offender is an employee--20 penalty units. 11
(2) For subsection (1), a second or subsequent offence is taken to be a 12
first offence if more than 1 year has passed since the commission of the last 13
similar offence of which the person was found guilty. 14
(3) An employer who pays (directly or by an agent) an employee, and an 15
employee who receives from an employer (or the employer's agent) 16
reduced wages is each taken to have contravened the instrument or permit. 17
(4) If an employee returns to an employer (or the employer's agent) a 18
part of wages paid to the employee under a relevant award, certified 19
agreement or permit-- 20
(a) the employee is taken to have received reduced wages; and 21
(b) the employer (or the employer's agent) is taken to have paid 22
reduced wages; 23
unless the return is in discharge, or partial discharge, of a lawful debt or 24
obligation of the employee. 25
restraining contraventions 26
Injunction
450.(1) This section applies if a person has been found guilty of an 27
offence involving the contravention of an industrial instrument, permit or 28
this Act. 29
(2) If satisfied the contravention consisted of the person's wilful action or 30
default, the full court, on application made to it, may grant an injunction 31
s 451 311 s 452
Workplace Relations
restraining the person from-- 1
(a) continuing the contravention; or 2
(b) committing further contraventions of the instrument, permit or 3
this Act, whether similar to or different from the contraventions 4
the person has been found guilty of. 5
(3) The person must obey the injunction. 6
Maximum penalty--200 penalty units. 7
considered parties to offences 8
Persons
451. Without limiting the Criminal Code, section 7,205 an organisation or 9
person who-- 10
(a) takes part in the commission of an offence under this Act; or 11
(b) counsels, procures or aids the commission of an offence under 12
this Act; or 13
(c) encourages the commission of an offence under this Act; or 14
(d) is concerned, directly or indirectly, in the commission of an 15
offence under this Act; 16
is taken to have committed the offence and to be liable to the penalty 17
prescribed for the offence. 18
officers must ensure corporation complies with ss 396, 433 19
Executive
and 445 20
452.(1) If a corporation commits an offence under section 396, 433 or 21
445,206 the executive officers of the corporation-- 22
(a) are also taken to have committed the offence; and 23
(b) are liable to the prescribed penalty and any other order the 24
magistrate may make under those sections. 25
205 Criminal Code, section 7 (Offender may be prosecuted under Code or other
statute)
206 Section 396 (Employee register), 433 (Contributing occupational
superannuation) or 445 (Non-payment of wages)
s 453 312 s 454
Workplace Relations
(2) However, it is a defence for an executive officer to prove-- 1
(a) if the officer was in a position to influence the conduct of the 2
corporation in relation to the offence--the officer exercised 3
reasonable diligence to ensure the corporation complied with the 4
sections; or 5
(b) the officer was not in a position to influence the conduct of the 6
corporation in relation to the offence. 7
(3) In this section-- 8
"executive officer", of a corporation, means a person who is concerned 9
with, or takes part in, the corporation's management, whether or not-- 10
(a) the person is a director; or 11
(b) the person's position is given the name of executive officer. 12
to commit offence 13
Attempt
453. A person who attempts to commit an offence under this Act-- 14
(a) commits an offence; and 15
(b) is liable to the same penalty as if the offence attempted had been 16
committed. 17
CHAPTER 11--LEGAL PROCEEDINGS 18
application of jurisdictional provisions 19
General
454. The provisions of this Act providing for the powers of and 20
procedures before the court, the commission or an Industrial Magistrates 21
Court apply in relation to the jurisdiction of the court, the commission or an 22
Industrial Magistrates Court under this or another Act, unless the contrary 23
intention appears. 24
s 455 313 s 456
Workplace Relations
provisions affecting proceeding under industrial Act 1
Evidentiary
455. In a proceeding under an industrial Act-- 2
(a) the appointment as employment advocate of a person claiming to 3
be, or stated to be, the employment advocate, and the authority of 4
the employment advocate to take a proceeding or do any act, must 5
be presumed, until the contrary is proved; and 6
(b) the appointment as inspector of a person claiming to be, or stated 7
to be, an inspector, and the authority of an inspector to take a 8
proceeding or do any act, must be presumed, until the contrary is 9
proved; and 10
(c) a signature purporting to be of the employment advocate is taken 11
as the signature it purports to be, until the contrary is proved; and 12
(d) a signature purporting to be of an inspector is taken as the 13
signature it purports to be, until the contrary is proved; and 14
(e) a document purporting to be a copy of a notice or order issued 15
under this Act by an inspector is admissible as evidence of the 16
issue of the notice or order and of the things in it; and 17
(f) the limits of a district or part of the State, or of a road, stated in a 18
complaint or other document made for the proceeding must be 19
presumed, until the contrary is proved; and 20
(g) judicial notice of the existence of industrial action, or of a 21
proposed industrial action, may be taken, if the tribunal concerned 22
considers the existence of the action, or the proposal for action, is 23
so well known as to require no proof of the fact. 24
material tendered in evidence 25
Confidential
456.(1) Subsection (2) applies if records, tendered to the court or 26
commission, relate to-- 27
(a) a person's trade secrets; or 28
(b) the financial position of a party or witness. 29
(2) The records can not, without the consent of the person, party or 30
witness, be inspected by anyone other than the president, a member of the 31
commission or an expert witness. 32
s 456 314 s 456
Workplace Relations
(3) Subsection (2) does not apply to records relating to the financial 1
position of a party or witness who claims that the financial position of an 2
industry or business does not permit the payment of wages, or the granting 3
of conditions-- 4
(a) claimed in the proceeding in which the records are tendered; or 5
(b) under a proposed industrial instrument or order to which the 6
proceeding relates. 7
(4) If the court or commission directs that information relating to a 8
person's trade secrets or financial position be given in evidence, the 9
evidence must be taken in private, if the person asks. 10
(5) The court, commission or registrar may direct-- 11
(a) a report, or part of a report, of a proceeding in an industrial cause 12
not be published; or 13
(b) evidence given, records tendered or things exhibited in a 14
proceeding for an industrial cause be withheld from release or 15
search. 16
(6) The direction may prohibit the publication, release or search 17
absolutely, or except on conditions ordered by the court, commission or 18
registrar. 19
(7) The direction must be complied with by all persons to whom it is 20
directed. 21
Maximum penalty--16 penalty units. 22
(8) A direction may be given if the court, commission or registrar 23
considers-- 24
(a) disclosure of the matter would not be in the public interest; or 25
(b) persons, other than parties to the cause, do not have a sufficient 26
legitimate interest in being informed of the matter. 27
(9) A person must not give as evidence, or publish material, in 28
contravention of this section or of a direction under this section. 29
Maximum penalty--16 penalty units. 30
s 457 315 s 457
Workplace Relations
(10) In this section-- 1
"expert witness", for records, means a person appointed by the court or 2
commission to examine the records and to report on them. 3
value at large of official records 4
Evidentiary
457.(1) The following are admissible in a proceeding as evidence of a 5
decision or action-- 6
(a) a copy of the decision, or of a record of other action of the court 7
or commission, purporting to bear the seal of the court or 8
commission; 9
(b) a copy of, or a document purporting to be an extract from, the 10
industrial gazette purporting to contain notice of a decision or 11
other action of the court or commission. 12
(2) In a proceeding-- 13
(a) a copy of, or a document purporting to be an extract from, the 14
industrial gazette purporting to contain notice of-- 15
(i) a declaration of a general ruling published under section 16
132;207 or 17
(ii) an amendment of an award or certified agreement; 18
is admissible as evidence of the making or approval of the 19
declaration or amendment and, for the period for which the 20
declaration or amendment remains in force, is evidence of the 21
matters in the notice, until the contrary is proved; and 22
(b) a copy of a certified agreement, certified as a true copy by the 23
registrar, is admissible as evidence of-- 24
(i) the agreement; and 25
(ii) its execution as shown in the copy; and 26
(iii) its certification by the commission; and 27
(c) a copy of a QWA, certified as a true copy by the registrar, is 28
admissible as evidence of-- 29
207 Section 132 (General rulings)
s 458 316 s 459
Workplace Relations
(i) the agreement; and 1
(ii) its execution as shown in the copy; and 2
(iii) its approval by an enterprise commissioner; and 3
(d) a copy of a permit issued by the commission, a magistrate or the 4
registrar, certified as a true copy by the appropriate clerk of the 5
Magistrates Court or the registrar, is admissible as evidence of the 6
permit; and 7
(e) a certificate issued by the registrar about an organisation's 8
registration is evidence of the matters in the certificate; and 9
(f) a certificate issued by the registrar that a stated person was, at a 10
stated time, a stated officer, or a member, of a stated organisation 11
is evidence of the matters. 12
of certain facts by statement 13
Proof
458. In a proceeding, a statement in a complaint or other process by 14
which the proceeding is started that-- 15
(a) a calling was, at or about a stated time, transferred from 1 person 16
to another; or 17
(b) a stated person is or is not, or was or was not, at a stated time, an 18
officer or member of an organisation; or 19
(c) a stated person is liable to pay, but has not paid, contribution to 20
the approved superannuation fund; 21
is proof of the matter stated, until the contrary is proved. 22
value of certificate of trustee of superannuation fund 23
Evidentiary
459.(1) In a proceeding, a trustee's certificate stating, for a period of 24
relevant service of an eligible employee concerned in the proceeding-- 25
(a) an amount was paid as contribution to a complying 26
superannuation fund of which the trustee is a trustee; or 27
(b) an amount worked out on the rate of return that stated 28
contributions would have attracted to the fund; 29
s 460 317 s 460
Workplace Relations
is evidence of the matters stated, until the contrary is proved. 1
(2) In this section-- 2
"trustee's certificate" means a certificate given, or purporting to have been 3
given, by a trustee of a complying superannuation fund. 4
proceedings generally 5
Offence
460.(1) A proceeding for an offence under an industrial Act is to be heard 6
and decided by the court or a magistrate, within the limits of the court's or 7
magistrate's jurisdiction. 8
(2) A proceeding before a magistrate is to be heard and decided 9
summarily, but the Industrial Magistrates Court where the proceeding is 10
taken is to be constituted by a magistrate sitting alone. 11
(3) If the parties to a proceeding commenced, or to be commenced, 12
before a magistrate agree, by notice signed by them or their representatives, 13
that the proceeding should be continued or taken before a magistrate at a 14
particular place in the State (other than the place where the proceeding 15
should be heard and decided under the Justices Act 1886)-- 16
(a) the magistrate at the particular place is authorised to hear and 17
decide the proceeding; and 18
(b) jurisdiction is conferred on each magistrate accordingly. 19
(4) If the proceeding has been commenced before the agreement is made, 20
the magistrate, if satisfied the agreement exists, must-- 21
(a) adjourn the proceeding to the magistrate at the agreed place; and 22
(b) send the record of the proceeding taken before the magistrate to 23
the clerk of the Magistrates Court at the agreed place. 24
(5) For the adjourned proceeding, evidence heard or produced in the 25
proceeding before it was adjourned, is taken to have been heard or produced 26
before the magistrate to whom the proceeding is adjourned, unless the 27
parties otherwise agree. 28
(6) Subject to subsection (7), a proceeding for an offence under this Act 29
must be commenced-- 30
(a) within 1 year after the offence was committed; or 31
s 461 318 s 462
Workplace Relations
(b) within 6 months after the offence comes to the complainant's 1
knowledge, but within 18 months after the offence was 2
committed. 3
(7) A proceeding for an offence under section 433 or 445208 must be 4
commenced within 6 years after the offence was committed. 5
may start proceedings 6
Organisations
461. Without limiting the authority of the State or a person to take a 7
proceeding, an organisation (in its registered name) may commence a 8
proceeding for-- 9
(a) contraventions of industrial instruments or permits; or 10
(b) an offence under this Act; or 11
(c) recovery of an amount payable to an employee. 12
amounts from organisations 13
Recovering
462.(1) This section applies for the recovery of-- 14
(a) a penalty imposed on an organisation under this Act; or 15
(b) an amount ordered to be paid by an organisation under this Act. 16
(2) Process may be issued and executed against the organisation's 17
property, whether the property is vested in trustees or is otherwise held for 18
the organisation, as if the organisation, as a corporation, were the absolute 19
owner of the property. 20
(3) In this section-- 21
"property" of an organisation means property that the organisation has-- 22
(a) legal title to; or 23
(b) a beneficial interest in, to the extent of the interest. 24
208 Section 433 (Contributing occupational superannuation) or 445 (Non-payment of
wages)
s 463 319 s 464
Workplace Relations
HAPTER 12--EMPLOYEES IN EMPLOYMENT 1
C
OF STATE 2
of Act to State 3
Application
463. This Act binds the State, other than in relation to-- 4
(a) a matter (other than something mentioned in paragraph (b)) about 5
which another Act prescribes a way by which the matter must, or 6
may, be determined, and a determination of the matter has been 7
made in that way and is in force; or 8
(b) a matter about which another Act prescribes a process or 9
procedure by which to pursue the matter and does not allow for 10
jurisdiction of the court or commission in relation to the matter; or 11
(c) a matter about which another Act excludes the jurisdiction of the 12
court or commission or the application of a decision within the 13
meaning of this Act about the matter; or 14
(d) section 235(2)209 of the repealed Act when-- 15
(i) an industrial instrument otherwise provides; or 16
(ii) the commission otherwise decides. 17
between industrial instruments etc. and statutory 18
Conflict
determination 19
464.(1) This section applies if-- 20
(a) another Act-- 21
(i) prescribes the way that a matter must, or may, be 22
determined; and 23
(ii) does not prescribe that, in determining the matter, a relevant 24
industrial instrument or decision of the court or commission 25
must be complied with; and 26
(b) a determination made about the matter under the other Act is 27
209 Industrial Relations Act 1990, section 235 (Payment for annual leave)
s 465 320 s 466
Workplace Relations
inconsistent with an industrial instrument or decision, whether 1
made before or after the instrument or decision. 2
(2) To the extent of any inconsistency between the determination and the 3
instrument or decision-- 4
(a) for a directive or guideline for reserved matters under the Public 5
Service Act 1996, section 34(1)-- 6
(i) a certified agreement prevails over the determination; and 7
(ii) the determination prevails over any other instrument or a 8
decision; and 9
(b) for any other determination--the determination prevails over the 10
instrument or decision. 11
of public property and officers 12
Protection
465.(1) Execution or attachment can not be made against property or 13
revenues of the State or a department to enforce an industrial instrument or 14
decision of the court, the commission or a magistrate. 15
(2) A person who is-- 16
(a) an employer of employees in a department; or 17
(b) taken to be an employer of employees in a department for this 18
Act; 19
is not personally liable under a relevant industrial instrument or for a 20
contravention of a relevant industrial instrument. 21
(3) In this section-- 22
"execution or attachment" includes process in the nature of execution or 23
attachment. 24
of reference to State 25
Ambit
466.(1) This Act binds an instrumentality or body that is not a 26
department or part of a department but that is taken by an Act, or otherwise 27
under law-- 28
(a) to be, or to represent, the State; or 29
s 467 321 s 468
Workplace Relations
(b) to have the rights, privileges or immunities of the State; 1
as it binds an employer, other than the State. 2
(2) A reference in section 463210 or 465 to the State does not include a 3
reference to an instrumentality or body mentioned in subsection (1). 4
of public sector units 5
Representation
467.(1) A public sector unit, or a person in a public sector unit, who is 6
concerned as an employer in an industrial cause must be represented in an 7
industrial tribunal by-- 8
(a) the unit's chief executive or an officer or employee of the unit 9
authorised by the chief executive; or 10
(b) if allowed under this Act--a lawyer or agent. 11
(2) In this section-- 12
"industrial tribunal" means the court, the commission or an Industrial 13
Magistrates Court. 14
"public sector unit" see Public Service Act 1996, section 20. 15
cause affecting diverse employees 16
Industrial
468.(1) Subsection (2) applies if the Minister decides an industrial cause 17
is one that affects, or is likely to affect, employees in more than 1 public 18
sector unit. 19
(2) The chief executive of the department is taken to be-- 20
(a) the employer of all employees who are, or are likely to be, 21
affected; and 22
(b) a party to the cause and to a proceeding in the court, the 23
commission or an Industrial Magistrates Court in the cause; 24
instead of all other persons who, apart from this subsection, would be 25
employers of the employees or any of them. 26
(3) An-- 27
210 Section 463 (Application of Act to State)
s 469 322 s 470
Workplace Relations
(a) agreement made by the chief executive as employer; or 1
(b) order made in a proceeding to which the chief executive is a party; 2
binds all persons, and their employees, to whom the agreement or order 3
purports to apply. 4
CHAPTER 13--GENERAL 5
working in and outside State 6
Employees
469.(1) This section applies if an employer-- 7
(a) has a workplace, or is present, in Queensland; and 8
(b) engages in Queensland an employee whose employment is, with 9
the employer's consent, performed partly in Queensland and 10
partly in another State. 11
(2) An industrial instrument that binds the employer and employee for 12
the employment performed in Queensland also binds them for the 13
employment performed in the other State. 14
work permit 15
Student's
470.(1) A permit may be issued to a student taking part in a tertiary study 16
course to work in a calling for a period. 17
(2) The permit may be issued, with or without conditions, by-- 18
(a) on the student's application--the registrar; or 19
(b) on appeal from the registrar--the commission. 20
(3) The student must provide satisfactory proof on the application that the 21
period of work in the calling is necessary to complete the course. 22
(4) The registrar or commission must state in the permit-- 23
(a) the period of work; and 24
(b) the student's wage rate. 25
s 471 323 s 471
Workplace Relations
(5) When a permit is issued, the registrar must immediately notify the 1
secretary of an employee organisation in the calling of-- 2
(a) the issue of the permit; and 3
(b) the permit's conditions. 4
(6) This section applies, and a permit has effect, despite an award or 5
certified agreement. 6
or infirm persons permits 7
Aged
471.(1) An application may be made to a magistrate for a permit for an 8
aged or infirm person, alleged to be unable to earn the minimum wage 9
provided for by an industrial instrument that applies to a calling, to work in 10
the calling for less than the minimum wage. 11
(2) The application may be made by-- 12
(a) the aged or infirm person; or 13
(b) an inspector. 14
(3) A magistrate may issue the permit, with or without conditions. 15
(4) On receiving an application, a magistrate must immediately notify the 16
secretary of an employee organisation in the calling of-- 17
(a) the application; and 18
(b) a time (at least 3 days and not more than 7 days from the date of 19
the notice) when the magistrate will hear any objection to the issue 20
of the permit. 21
(5) At the notified time, or at a time to which the matter is adjourned, the 22
magistrate must hear any objections from the organisation's authorised 23
representative. 24
(6) An organisation may apply, at any time under the rules of court, to a 25
magistrate to cancel the permit. 26
(7) This section applies, and a permit has effect, despite an award or 27
certified agreement. 28
s 472 324 s 474
Workplace Relations
of entry provisions void 1
Right
472. A provision of an industrial instrument, EFA, industrial agreement, 2
arrangement (whether written or unwritten) or order that requires or allows 3
an officer or employee of an organisation to do any of the following things 4
is not enforceable-- 5
(a) enter premises-- 6
(i) occupied by an employer who is bound by it; or 7
(ii) where work to which it applies is being carried on; 8
(b) inspect any work, material, machinery, appliance, article, 9
document or other thing on the premises; 10
(c) interview an employee on the premises. 11
provisions void 12
Preference
473.(1) A provision of an industrial instrument, EFA, industrial 13
agreement or order or an arrangement (whether written or unwritten) that 14
requires or allows preference is not enforceable. 15
(2) In this section-- 16
"preference" means preference within the meaning of section 228 of the 17
repealed Act. 18
of award and certified agreement to be displayed 19
Copy
474.(1) This section applies to a workplace where an award or certified 20
agreement has application. 21
(2) The employer must attach a copy of the award or agreement, at or 22
near the entrance to the workplace in a position where it is easily read by the 23
employees in the workplace. 24
Maximum penalty--20 penalty units. 25
(3) In this section-- 26
"workplace" includes a factory, workroom or shop. 27
s 475 325 s 478
Workplace Relations
of amendments in reprint of award or certified 1
Incorporation
agreement 2
475. If an award or certified agreement is amended, the registrar may 3
reprint the award or certified agreement in a form certified as correct by the 4
registrar. 5
award or certified agreement 6
Obsolete
476.(1) The registrar, after the inquiry the registrar considers sufficient, 7
may notify in the industrial gazette an intention to declare a stated award or 8
certified agreement, made or continued in force under this Act, obsolete. 9
(2) A person may, within the stated time and in the stated way, file an 10
objection notice with the commission. 11
(3) The commission must hear and decide the objection. 12
(4) If no objection is filed within the stated time, or all objections filed are 13
dismissed, the registrar may notify in the industrial gazette that the award or 14
certified agreement is obsolete. 15
(5) The award or certified agreement then stops having effect. 16
of employment on termination 17
Certificate
477.(1) An employer, when asked by a person whose employment with 18
the employer has been terminated, must give the person a certificate, signed 19
by the employer, about the particulars prescribed under a regulation. 20
Maximum penalty--20 penalty units. 21
(2) In this section-- 22
"terminated" means terminated by the employer or employee. 23
pretences relating to employment 24
False
478.(1) A person must not-- 25
(a) pretend someone else has been employed by the person for a 26
period, or in a capacity, other than that for, or in, which the other 27
person was employed; or 28
s 478 326 s 478
Workplace Relations
(b) assert in writing that someone else has been employed by the 1
person for a period, or in a capacity, knowing the assertion to be 2
false; or 3
(c) assert in writing another matter relating to the person's 4
employment of someone else, knowing the assertion to be false in 5
a material particular. 6
Maximum penalty--40 penalty units. 7
(2) A person must not-- 8
(a) forge a certificate that purports to be a discharge from, or a record 9
of, previous employment; or 10
(b) use a document that purports to be a discharge from, or a record 11
of, previous employment, knowing the document is not genuine 12
or is false; or 13
(c) pretend, or falsely claim, when seeking employment, to be a 14
person named in a genuine document mentioned in paragraph (b) 15
as a person to whom the document was given; or 16
(d) seek to obtain employment by assuming someone else's name, 17
living or dead, with intent to deceive. 18
Maximum penalty--40 penalty units. 19
(3) If, under a relevant industrial instrument in a calling, an employee's 20
wages depends wholly or partly on the employee's age, experience or 21
duration of previous employment, a person must not give information, or 22
make a statement, about the particulars that the person knows is false-- 23
(a) when seeking employment in the calling; or 24
(b) while an employee in the calling. 25
Maximum penalty--16 penalty units. 26
(4) A person's liability to be dealt with for an offence under 27
subsection (1) or (2) does not affect the person's liability to be dealt with 28
under the Criminal Code for forgery or false pretences. 29
(5) However, the person must not be dealt with under both this Act and 30
the Criminal Code for the same conduct. 31
s 479 327 s 480
Workplace Relations
from liability 1
Protection
479.(1) An official is not civilly liable for an act done, or omission made, 2
honestly and without negligence under this or another Act mentioned in 3
section 376(5).211 4
(2) If subsection (1) prevents civil liability attaching to a person, the 5
liability attaches instead to the State. 6
(3) In this section-- 7
"official" means-- 8
(a) the Minister; or 9
(b) the chief executive; or 10
(c) the employment advocate; or 11
(d) the Commonwealth employment advocate; or 12
(e) the registrar; or 13
(f) an officer of the court or commission; or 14
(g) an inspector or an officer of the Commonwealth public service 15
exercising the powers and performing the functions of an 16
inspector; or 17
(h) a person acting under the direction of an inspector. 18
to financially distressed 19
Payments
480.(1) Subsection (2) applies if a person is-- 20
(a) suffering hardship because an employer has failed to pay the 21
person the whole or part of wages; and 22
(b) unlikely to be able to recover by lawful means the whole or a 23
substantial part of the unpaid wages. 24
(2) The Governor in Council may authorise payment of an amount, not 25
more than the person is unlikely to recover, to the person from the 26
unclaimed moneys fund. 27
211 Section 376 (Appointment of inspectors)
s 481 328 s 483
Workplace Relations
(3) The payment does not relieve the employer from liability to pay the 1
unpaid wages. 2
(4) If the person later receives remuneration in full or part satisfaction of 3
the employer's liability, the person must immediately pay the department 4
(for payment to the unclaimed moneys fund) an amount equal to the lesser 5
of-- 6
(a) the value of the remuneration received, as assessed by the 7
Minister; or 8
(b) the amount of the payment made to the person and not previously 9
repaid by the person under this subsection. 10
(5) The amount payable to the department-- 11
(a) is a debt payable to the department; and 12
(b) may be recovered by action in a court of competent jurisdiction. 13
(6) In this section-- 14
"remuneration" means remuneration, in money or kind. 15
"unclaimed moneys fund" means the unclaimed moneys fund kept in the 16
Treasury. 17
and applications to be written 18
Notices
481. If a person must give a notice or make an application under this Act, 19
the notice or application must be written, unless otherwise provided. 20
descriptions 21
Inaccurate
482. No misnomer, inaccurate description or omission in or from a 22
document given under this Act prevents or abridges the operation of this 23
Act in relation to the subject matter of the misnomer, inaccurate description 24
or omission, if the subject matter is sufficiently clear to be understood. 25
of information 26
Confidentiality
483. A person must not disclose information acquired when performing 27
functions or exercising powers under this Act to someone else, unless the 28
disclosure is-- 29
s 484 329 s 485
Workplace Relations
(a) made for this Act when performing a function under this Act; or 1
(b) authorised by-- 2
(i) the Minister; or 3
(ii) a court order, for hearing and determining a proceeding 4
before the court; or 5
(iii) a regulation; or 6
(c) required or permitted by another Act. 7
Maximum penalty--16 penalty units. 8
of Act generally 9
Application
484.(1) If a provision of this Act does not apply to a person or a class of 10
person, a decision is inoperative to the extent that it purports to apply to the 11
person or a member of the class about the provision's subject matter. 12
(2) In its application, this Act does not create a right, privilege or benefit 13
for a person for a period of service as an employee if, for the period, a 14
similar right, privilege or benefit was given to or received by the person 15
under a corresponding provision of the repealed Act. 16
power 17
Regulation-making
485.(1) The Governor in Council may make regulations under this Act. 18
(2) A regulation may be made-- 19
(a) requiring an employer who is a party to a certified agreement or 20
QWA to supply information for statistical purposes; and 21
(b) requiring an employer who is a party to a QWA to supply copies 22
of documents prescribed under the regulation to the employee; 23
and 24
(c) about the required form of QWAs or ancillary documents 25
(including a requirement that the document be in the English 26
language); and 27
(d) about the witnessing of signatures on QWAs or ancillary 28
documents; and 29
s 486 330 s 486
Workplace Relations
(e) about the making and retention by employers of records relating 1
to the employment of persons under QWAs, and the inspection 2
of the records; and 3
(f) creating an offence under a regulation; and 4
(g) fixing a penalty for an offence under a regulation (including 5
different penalties for successive offences against a regulation) of 6
not more than 20 penalty units. 7
(3) A regulation may exempt a person from a provision of this Act. 8
(4) The exemption may be subject to a specified condition. 9
(5) If a person's exemption is conditional, the exemption applies only 10
while the person complies with the condition. 11
(6) If-- 12
(a) an exemption applies to a person; and 13
(b) a decision purports to apply to the person for something covered 14
by the exemption; 15
the decision is inoperative to that extent. 16
HAPTER 14--INDUSTRIAL RELATIONS 17
C
ADVISORY COUNCIL 18
of council 19
Establishment
486.(1) The industrial relations advisory council (the "council") is to be 20
established. 21
(2) The council is to be made up of a maximum of 12 members. 22
(3) The council consists of-- 23
(a) employers, or officers or employees of employer organisations; 24
and 25
(b) employees, or officers or employees of employee organisations; 26
and 27
s 487 331 s 490
Workplace Relations
(c) persons who have knowledge of, or experience in, industrial 1
relations; and 2
(d) the chief executive, who is the chairperson. 3
(4) The members mentioned in subsections (3)(a) to (c) (the "appointed 4
members") are to be appointed by the Minister. 5
(5) The Minister must appoint an appointed member as the deputy 6
chairperson. 7
of office 8
Term
487.(1) The appointment of a member is for the term (not longer than 9
3 years) stated in the notice of the member's appointment. 10
(2) An appointed member may resign the appointment at any time, by 11
signed notice given to the Minister. 12
of members 13
Deputies
488.(1) This section applies if a member, other than the chairperson, can 14
not perform the functions of the appointment because of absence, illness, or 15
another cause. 16
(2) The Minister may appoint a person to act as the deputy of the 17
member during the member's inability. 18
(3) While a deputy of a member acts, the deputy must perform the 19
functions, may exercise the powers, and has the entitlements, of the 20
member. 21
of appointed members 22
Remuneration
489. An appointed member is entitled to the allowances and reasonable 23
expenses approved by the Minister. 24
of council 25
Functions
490.(1) The council's functions are-- 26
(a) to investigate, and report to the Minister on, a matter about 27
s 491 332 s 491
Workplace Relations
industrial relations-- 1
(i) referred to it by the Minister; or 2
(ii) considered by the council to be appropriate to be brought to 3
the Minister's attention; and 4
(b) to investigate, and report to the Minister on, a particular industrial 5
matter that has come to its attention; and 6
(c) to investigate, and report to the Minister on, other matters that 7
come within the operation of an industrial Act; and 8
(d) to review an industrial Act and its operation; and 9
(e) to make the recommendations to the Minister it considers 10
appropriate about a matter within the scope of its functions. 11
(2) In performing its functions, the council-- 12
(a) must consult with-- 13
(i) the president on a matter relating to the exercise or 14
performance of the court's jurisdiction, functions and 15
powers; and 16
(ii) the chief commissioner on a matter relating to the exercise or 17
performance of the commission's jurisdiction, functions or 18
powers; and 19
(b) may consult with an organisation or other association of persons, 20
or an individual; and 21
(c) may confer with the Minister about a matter it is investigating; 22
and 23
(d) must consider the attainment of the objects of the industrial Act 24
concerned. 25
of council meetings 26
Conduct
491.(1) Meetings of the council are to be-- 27
(a) called by the chairperson; and 28
(b) held when the chairperson decides, but at least 3 times a year. 29
(2) The chairperson must preside at all meetings at which the chairperson 30
s 492 333 s 492
Workplace Relations
is present, and in the chairperson's absence, the deputy chairperson must 1
preside. 2
(3) A quorum of the council consists of 6 members of whom the 3
chairperson or deputy chairperson must be 1. 4
(4) Business must not be conducted at a meeting unless a quorum is 5
present. 6
(5) Business before a meeting at which a quorum is present must be 7
decided by majority vote of the members present and entitled to vote. 8
(6) A member present at a meeting and entitled to vote who refrains from 9
voting on an item of business before the council, other than with the 10
chairperson's leave on the ground of conflict of interests, is taken to have 11
voted in the negative. 12
(7) If there is an equality of votes on an item of business, the presiding 13
member has a second or casting vote. 14
(8) Minutes of each meeting are to be recorded in writing, and the 15
original only of the minutes must be produced at, or for, a meeting. 16
(9) Records of the council are in the chairperson's custody. 17
CHAPTER 15--SAVINGS, REPEALS AND OTHER 18
AMENDMENTS 19
20
Savings
492.(1) A person prescribed under any Act to be an employee within the 21
meaning of the repealed Act continues to be an employee within the 22
meaning of this Act. 23
(2) Subsection (3) applies to an award, decision, exemption, judgment, 24
ruling, permit or licence or other act of authority (the "instrument") that 25
was-- 26
(a) made, given, done, granted, certified or approved by the court, the 27
commission, a magistrate or the registrar under the repealed Act, 28
and in relation to which there is a corresponding provision under 29
s 493 334 s 494
Workplace Relations
this Act; and 1
(b) in force immediately before the commencement of this Act. 2
(3) The instrument-- 3
(a) continues in force as if it had been made, given, done, granted or 4
approved by the court, commission, magistrate or registrar, 5
according to their respective functions and jurisdictions, under the 6
corresponding provision of this Act; and 7
(b) may be amended, revoked or suspended under this Act. 8
(4) A proceeding started before the commencement of this section under 9
a provision of the repealed Act and pending at the date of the repeal may be 10
carried on and prosecuted as if it had been started under the corresponding 11
provision of this Act. 12
(5) A proceeding is taken to be part heard after the start of the hearing 13
until the decision in the proceeding is given. 14
and rules to continue 15
Regulation
493.(1) The following instruments made under the repealed Act continue 16
in force as if they had been made under this Act-- 17
(a) the Industrial Relations Regulation 1990; 18
(b) the Industrial Court Rules 1990. 19
(2) The instruments are to be read with the changes necessary to make 20
them consistent with this Act and to adapt their operation to the provisions 21
of this Act. 22
23
Repeals
494. The following Acts are repealed-- 24
(a) the Industrial Relations Act 1990; 25
(b) the City of Brisbane (Garbage Services) Act 1985. 26
s 495 335 s 497
Workplace Relations
Acts--sch 4 1
Amended
495. Schedule 4 amends the Acts mentioned in it. 2
HAPTER 16--TRANSITIONALS 3
C
ART 1--LIMITED CONTINUATION OF CERTAIN 4
P
CONDITIONS 5
of certain general conditions in existing instruments 6
Preservation
496.(1) The repealed Act, sections 221, 222, 230, 233, 235, 236 and 237, 7
continues to apply to an existing award or agreement for 18 months after the 8
commencement of this section. 9
(2) In this section-- 10
"existing award or agreement" means an award, industrial agreement, 11
certified agreement or EFA in force immediately before the 12
commencement of this section and continued in force under this Act. 13
ART 2--EXISTING AWARDS 14
P
for pt 2 15
Definitions
497. In this part-- 16
"interim period" means the period of 18 months beginning on the day 17
section 128 commences.212 18
"special consent provision" means a provision of an award that gives 19
effect to a decision of the commission that is expressed to be made in 20
accordance with 1 or more of the following principles-- 21
212 Section 128 (Allowable award matters)
s 498 336 s 499
Workplace Relations
(a) the Enterprise Bargaining Principle adopted in the State Wage 1
Case (1992) 139 QGIG 369; 2
(b) the Enterprise Awards and Agreement Principle adopted in the 3
State Wage Case (1994) 145 QGIG 314; 4
(c) Principle 2.2 (Consent Award, Industrial Agreement or Award 5
Variation to Give Effect to an Enterprise Agreement) adopted in 6
the State Wage Case (1995) 148 QGIG 320 and incorporated in 7
State Wage Case (1995) 150 QGIG 1116. 8
of commission's powers under this part 9
Exercise
498. In exercising its powers under this part, the commission must 10
consider the desirability of helping parties to awards to agree on appropriate 11
amendments of their awards, rather than have parts of awards cease to have 12
effect under section 500213 at the end of the interim period. 13
of awards during the interim period 14
Amendment
499.(1) An award that is in force immediately before the commencement 15
of this section continues to have effect after the commencement. 16
(2) If a party to the award applies to the commission to amend the award, 17
the commission may, during the interim period, amend the award so that it 18
only deals with allowable award matters. 19
(3) For this section, an exceptional matters order is taken to relate wholly 20
to allowable award matters. 21
(4) Special consent provisions can not be amended under this section. 22
(5) The commission may deal with the application by arbitration only if 23
satisfied the applicant has made reasonable attempts to reach agreement with 24
the other parties to the award about how the award should be amended and 25
the treatment of matters that are not allowable award matters. 26
(6) Subsection (7) applies if-- 27
(a) an award provides for wage rates the commission considers-- 28
213 Section 500 (Parts of awards stop having effect at the end of the interim period)
s 499 337 s 499
Workplace Relations
(i) are not operating as minimum rates; or 1
(ii) were made on the basis that they were not intended to 2
operate as minimum rates; and 3
(b) the application seeks to have the wage rates amended so that they 4
are stated as minimum wage rates. 5
(7) The commission may amend the award so that it provides for 6
minimum wage rates consistent with-- 7
(a) sections 122 and 123;214 and 8
(b) the limitation on the commission's power in section 129.215 9
(8) If the commission amends the award mentioned in subsection (7), it 10
must include provisions that ensure overall entitlements to pay provided by 11
the award are not reduced by the amendment, unless the commission 12
considers it would be in the public interest not to include the provisions. 13
(9) The commission must, if it considers it appropriate, review an award 14
to decide whether it meets the following criteria-- 15
(a) it does not include matters of detail or process that are more 16
appropriately dealt with by agreement at the workplace or 17
enterprise level; 18
(b) it does not prescribe work practices or procedures that restrict or 19
hinder the efficient performance of work; 20
(c) it does not contain provisions that have the effect of restricting or 21
hindering productivity, having regard to fairness to employees; 22
(d) whenever possible, it contains facilitative provisions that allow 23
agreement at the workplace or enterprise level, between 24
employers and employees (including individual employees), on 25
how the award provisions are to apply; 26
(e) whenever possible, it contains provisions enabling the 27
employment of regular part-time employees; 28
(f) it is stated in plain English and is easy to understand in both 29
214 Sections 122 (Objects of ch 3) and 123 (Performance of commission's functions
under this chapter)
215 Section 129 (Limitation on commission's powers for awards)
s 500 338 s 501
Workplace Relations
structure and content; 1
(g) it does not contain provisions that are obsolete or need updating; 2
(h) whenever possible, it provides support to training arrangements 3
through appropriate wages for apprentices and trainees and a 4
supported wage system for people with disabilities; 5
(i) it does not contain discriminatory provisions. 6
(10) If the commission decides the award does not meet the criteria in 7
subsection (9), it may take the steps it considers appropriate to facilitate the 8
amendment of the award so that it meets the criteria. 9
of awards stop having effect at the end of the interim period 10
Parts
500.(1) At the end of the interim period each award stops having effect to 11
the extent that it provides for matters other than allowable award matters. 12
(2) For this section-- 13
(a) an exceptional matters order is taken to relate wholly to allowable 14
award matters; and 15
(b) an award that is made under section 55(4)216 is taken to relate 16
wholly to allowable award matters. 17
of awards after the end of the interim period 18
Amendment
501.(1) As soon as practicable after the end of the interim period, the 19
commission must review each award that-- 20
(a) is in force; and 21
(b) the commission considers has been affected by section 500. 22
(2) The commission must amend the award to remove provisions that 23
have stopped having effect under section 500. 24
(3) The commission may also amend the award so that, for an allowable 25
award matter, it is stated in a way that reasonably represents employees 26
entitlements for the matter as provided in the award as in force immediately 27
216 Section 55 (What happens if commission terminates a bargaining period under
s 54(3) or (7))
s 501 339 s 501
Workplace Relations
before the end of the interim period. 1
(4) Subsection (5) applies if, immediately before the end of the interim 2
period, the award provided for wage rates the commission considers 3
were-- 4
(a) not operating as minimum rates; or 5
(b) made on the basis that they were not intended to operate as 6
minimum rates. 7
(5) The commission may amend the award so that it provides for 8
minimum wage rates consistent with-- 9
(a) sections 122 and 123;217 and 10
(b) the limitation on the commission's power in section 129.218 11
(6) If the commission amends the award mentioned in subsection (5), it 12
must include provisions that ensure overall entitlements to pay provided by 13
the award are not reduced by the amendment, unless the commission 14
considers it would be in the public interest not to include the provisions. 15
(7) The commission must, if it considers it appropriate, review each 16
award mentioned in subsection (1) to decide whether it meets the following 17
criteria-- 18
(a) it does not include matters of detail or process that are more 19
appropriately dealt with by agreement at the workplace or 20
enterprise level; 21
(b) it does not prescribe work practices or procedures that restrict or 22
hinder the efficient performance of work; 23
(c) it does not contain provisions that have the effect of restricting or 24
hindering productivity, having regard to fairness to employees; 25
(d) whenever possible, it contains facilitative provisions that allow 26
agreement at the workplace or enterprise level, between 27
employers and employees (including individual employees), on 28
how the award provisions are to apply; 29
217 Sections 122 (Objects of ch 3) and 123 (Performance of commission's functions
under this chapter)
218 Section 129 (Limitation on commission's powers for awards)
s 502 340 s 503
Workplace Relations
(e) whenever possible, it contains provisions enabling the 1
employment of regular part-time employees; 2
(f) it is stated in plain English and is easy to understand in both 3
structure and content; 4
(g) it does not contain provisions that are obsolete or need updating; 5
(h) whenever possible, it provides support to training arrangements 6
through appropriate wages for apprentices and trainees and a 7
supported wage system for people with disabilities; 8
(i) it does not contain discriminatory provisions. 9
(8) If the commission decides the award does not meet the criteria in 10
subsection (7), it may take the steps it considers appropriate to facilitate the 11
amendment of the award so that it meets the criteria. 12
to be dealt with by full bench 13
Matters
502.(1) A full bench may establish principles about amending awards 14
under this part. 15
(2) After the principles have been established, the commission's power 16
to amend an award under this part is exercisable only by a full bench, unless 17
the contents of the award-- 18
(a) give effect to determinations of a full bench under this part; or 19
(b) are consistent with principles established by a full bench under 20
this section. 21
PART 3--EXISTING INDUSTRIAL AGREEMENTS 22
industrial agreement continues 23
Existing
503.(1) An industrial agreement that is in force immediately before the 24
commencement of this section continues to have effect after the 25
commencement. 26
(2) The provisions of the repealed Act (other than those relating to the 27
s 504 341 s 505
Workplace Relations
making of an industrial agreement) continue to apply to the industrial 1
agreement, subject to this part. 2
(3) The commission may amend the industrial agreement, before its term 3
expires, in accordance with a written agreement filed by the parties to the 4
industrial agreement in the registrar's office. 5
(4) However, the term of the industrial agreement can not be extended by 6
agreement. 7
(5) The industrial agreement may be terminated, before its term expires, 8
by written agreement filed by the parties to the industrial agreement in the 9
registrar's office. 10
agreement displaced by QWA 11
Industrial
504. If a QWA comes into operation in relation to an employee who is 12
bound by the industrial agreement, the industrial agreement stops having 13
effect in relation to the employee. 14
PART 4--EXISTING CERTIFIED AGREEMENTS 15
termination provisions for existing certified agreements 16
New
505.(1) A certified agreement that is in force immediately before the 17
commencement of this section continues to have effect after the 18
commencement. 19
(2) Section 38219 applies to a certified agreement entered into before the 20
commencement of this section if, whether before or after the 21
commencement-- 22
(a) the period of operation stated in the agreement has ended; or 23
(b) if it has been extended or further extended under the repealed Act, 24
section 168--the period as extended or further extended has 25
ended. 26
219 Section 38 (Terminating a certified agreement after its nominal expiry date)
s 506 342 s 507
Workplace Relations
that prevail over certified agreements 1
EFAs
506.(1) This section applies if-- 2
(a) an EFA is continued in force by part 5;220 and 3
(b) any part of the period of operation stated in the agreement (the 4
"post-commencement EFA period"), or that period as extended 5
or further extended, happens after the commencement of this 6
section; and 7
(c) the EFA is, during the post-commencement EFA period, to any 8
extent inconsistent with a certified agreement, whether made 9
before or after the commencement of this section; and 10
(d) the certified agreement was certified after implementation of the 11
EFA was approved. 12
(2) The EFA prevails over the certified agreement, to the extent of the 13
inconsistency, during the post-commencement EFA period. 14
agreements that prevail over EFAs 15
Certified
507.(1) This section applies if-- 16
(a) an EFA is continued in force by part 5;221 and 17
(b) a certified agreement, whether made before or after the 18
commencement of this section, is to any extent inconsistent with 19
the EFA; and 20
(c) section 506 does not apply to the inconsistency. 21
(2) The certified agreement prevails over the EFA, to the extent of the 22
inconsistency. 23
220 Part 5 (Existing EFAs)
221 Part 5 (Existing EFAs)
s 508 343 s 511
Workplace Relations
55(4) awards and exceptional matters orders prevail over pre 1
Section
and post commencement certified agreements 2
508. Section 30(2)222 applies to certified agreements made before or after 3
the commencement of this Act. 4
PART 5--EXISTING EFAS 5
EFA continues 6
Existing
509.(1) An EFA that is in force immediately before the commencement 7
of this section continues to have effect after the commencement. 8
(2) The provisions of the repealed Act (other than those relating to the 9
making of an EFA) continue to apply to the EFA, subject to this part. 10
(3) However, the period of operation of the EFA can not be extended 11
after the commencement. 12
FA displaced by QWA 13
E
510. If a QWA comes into operation in relation to an employee who is 14
bound by the EFA, the EFA stops having effect in relation to the employee. 15
displaced by certain awards or orders 16
EFA
511. The following prevail over an EFA, to the extent of any 17
inconsistency-- 18
(a) an exceptional matters order; 19
(b) an award made under section 55(4).223 20
222 Section 30 (Effect of a certified agreement in relation to awards and other
agreements)
223 Section 55 (What happens if commission terminates a bargaining period under
s 54(3) or (7))
s 512 344 s 515
Workplace Relations
PART 6--UNFAIR DISMISSALS 1
before commencement of this section 2
Dismissals
512. The repealed Act, part 12, division 5 continues to apply to a 3
dismissal within the meaning of that division that happened before the 4
commencement of this section. 5
PART 7--REPRESENTATION RIGHTS OF 6
EMPLOYEE ORGANISATIONS 7
under the repealed Act, s 45 8
Applications
513. If an application has been made under the repealed Act, section 45-- 9
(a) that section continues to apply to the hearing; and 10
(b) an order made as a result of the hearing has effect as if it had been 11
made under that section before its repeal. 12
PART 8--REFERENCES AND APPOINTMENTS 13
to Industrial Relations Act 1990 14
References
514. In an Act or document, a reference to the repealed Act may, if the 15
context permits, be taken to be a reference to this Act. 16
continue 17
Appointments
515. A person who immediately before the commencement of this 18
section held an office or appointment under the repealed Act continues to 19
hold the office or appointment, but does so subject to this Act. 20
21
345
Workplace Relations
SCHEDULE 1 1
¡
NTERNATIONAL COVENANT ON ECONOMIC, 2
I
SOCIAL AND CULTURAL RIGHTS 3
sch 5 4
The States Parties to the present Covenant, 5
Considering that, in accordance with the principles proclaimed in the 6
Charter of the United Nations, recognition of the inherent dignity and of the 7
equal and inalienable rights of all members of the human family is the 8
foundation of freedom, justice and peace in the world, 9
Recognizing that these rights derive from the inherent dignity of the 10
human person, 11
Recognizing that, in accordance with the Universal Declaration of Human 12
Rights, the ideal of free human beings enjoying freedom from fear and want 13
can only be achieved if conditions are created whereby everyone may enjoy 14
his economic, social and cultural rights, as well as his civil and political 15
rights, 16
Considering the obligation of States under the Charter of the United 17
Nations to promote universal respect for, and observance of, human rights 18
and freedoms, 19
Realizing that the individual, having duties to other individuals and to the 20
community to which he belongs, is under a responsibility to strive for the 21
promotion and observance of the rights recognized in the present Covenant, 22
Agree upon the following articles: 23
346
Workplace Relations
SCHEDULE 1 (continued)
ART II 1
P
Article 2 2
1. Each State Party to the present Covenant undertakes to take steps, 3
individually and through international assistance and co-operation, especially 4
economic and technical, to the maximum of its available resources, with a 5
view to achieving progressively the full realization of the rights recognized 6
in the present Covenant by all appropriate means, including particularly the 7
adoption of legislative measures. 8
2. The States Parties to the present Covenant undertake to guarantee that 9
the rights enunciated in the present Covenant will be exercised without 10
discrimination of any kind as to race, colour, sex, language, religion, 11
political or other opinion, national or social origin, property, birth or other 12
status. 13
3. Developing countries, with due regard to human rights and their 14
national economy, may determine to what extent they would guarantee the 15
economic rights recognized in the present Covenant to non-nationals. 16
Article 3 17
The States Parties to the present Covenant undertake to ensure the equal 18
right of men and women to the enjoyment of all economic, social and 19
cultural rights set forth in the present Covenant. 20
Article 4 21
The States Parties to the present Covenant recognize that, in the 22
enjoyment of those rights provided by the State in conformity with the 23
347
Workplace Relations
SCHEDULE 1 (continued)
present Covenant, the State may subject such rights only to such limitations 1
as are determined by law only in so far as this may be compatible with the 2
nature of these rights and solely for the purpose of promoting the general 3
welfare in a democratic society. 4
Article 5 5
1. Nothing in the present Covenant may be interpreted as implying for 6
any State, group or person any right to engage in any activity or to perform 7
any act aimed at the destruction of any of the rights or freedoms recognized 8
herein, or at their limitation to a greater extent than is provided for in the 9
present Covenant. 10
2. No restriction upon or derogation from any of the fundamental human 11
rights recognized or existing in any country in virtue of law, conventions, 12
regulations or custom shall be admitted on the pretext that the present 13
Covenant does not recognize such rights or that it recognizes them to a 14
lesser extent. 15
ART III 16
P
Article 6 17
1. The States Parties to the present Covenant recognize the right to work, 18
which includes the right of everyone to the opportunity to gain his living by 19
work which he freely chooses or accepts, and will take appropriate steps to 20
safeguard this right. 21
2. The steps to be taken by a State Party to the present Covenant to 22
achieve the full realization of this right shall include technical and vocational 23
348
Workplace Relations
SCHEDULE 1 (continued)
guidance and training programmes, policies and techniques to achieve 1
steady economic, social and cultural development and full and productive 2
employment under conditions safeguarding fundamental political and 3
economic freedoms to the individual. 4
Article 7 5
The States Parties to the present Covenant recognize the right of everyone 6
to the enjoyment of just and favourable conditions of work which ensure, in 7
particular-- 8
(a) Remuneration which provides all workers, as a minimum, with-- 9
(i) Fair wages and equal remuneration for work of equal value 10
without distinction of any kind, in particular women being 11
guaranteed conditions of work not inferior to those enjoyed 12
by men, with equal pay for equal work; 13
(ii) A decent living for themselves and their families in 14
accordance with the provisions of the present Covenant; 15
(b) Safe and healthy working conditions; 16
(c) Equal opportunity for everyone to be promoted in his 17
employment to an appropriate higher level, subject to no 18
considerations other than those of seniority and competence; 19
(d) Rest, leisure and reasonable limitation of working hours and 20
periodic holidays with pay, as well as remuneration for public 21
holidays. 22
Article 8 23
1. The States Parties to the present Covenant undertake to ensure-- 24
(a) The right of everyone to form trade unions and join the trade 25
union of his choice, subject only to the rules of the organization 26
concerned, for the promotion and protection of his economic and 27
349
Workplace Relations
SCHEDULE 1 (continued)
social interests. No restrictions may be placed on the exercise of 1
this right other than those prescribed by law and which are 2
necessary in a democratic society in the interests of national 3
security or public order or for the protection of the rights and 4
freedoms of others; 5
(b) The right of trade unions to establish national federations or 6
confederations and the right of the latter to form or join 7
international trade-union organizations; 8
(c) The right of trade unions to function freely subject to no 9
limitations other than those prescribed by law and which are 10
necessary in a democratic society in the interests of national 11
security or public order or for the protection of the rights and 12
freedoms of others; 13
(d) The right to strike, provided that it is exercised in conformity with 14
the laws of the particular country. 15
2. This article shall not prevent the imposition of lawful restrictions on 16
the exercise of these rights by members of the armed forces or of the police 17
or of the administration of the State. 18
3. Nothing in this article shall authorize States Parties to the International 19
Labour Organisation Convention of 1948 concerning Freedom of 20
Association and Protection of the Right to Organize to take legislative 21
measures which would prejudice, or apply the law in such a manner as 22
would prejudice, the guarantees provided for in that Convention. 23
Article 9 24
The States Parties to the present Covenant recognize the right of everyone 25
to social security, including social insurance. 26
350
Workplace Relations
SCHEDULE 1 (continued)
Article 10 1
The States Parties to the present Covenant recognize that: 2
1. The widest possible protection and assistance should be accorded to 3
the family, which is the natural and fundamental group unit of society, 4
particularly for its establishment and while it is responsible for the care and 5
education of dependent children. Marriage must be entered into with the free 6
consent of the intending spouses. 7
2. Special protection should be accorded to mothers during a reasonable 8
period before and after childbirth. During such period working mothers 9
should be accorded paid leave or leave with adequate social security 10
benefits. 11
3. Special measures of protection and assistance should be taken on 12
behalf of all children and young persons without any discrimination for 13
reasons of parentage or other conditions. Children and young persons 14
should be protected from economic and social exploitation. Their 15
employment in work harmful to their morals or health or dangerous to life 16
or likely to hamper their normal development should be punishable by law. 17
States should also set age limits below which the paid employment of child 18
labour should be prohibited and punishable by law. 19
Article 11 20
1. The States Parties to the present Covenant recognize the right of 21
everyone to an adequate standard of living for himself and his family, 22
including adequate food, clothing and housing, and to the continuous 23
improvement of living conditions. The States Parties will take appropriate 24
steps to ensure the realization of this right, recognizing to this effect the 25
essential importance of international cooperation based on free consent. 26
351
Workplace Relations
SCHEDULE 1 (continued)
2. The States Parties to the present Covenant, recognizing the 1
fundamental right of everyone to be free from hunger, shall take, 2
individually and through international co-operation, the measures, including 3
specific programmes, which are needed-- 4
(a) To improve methods of production, conservation and distribution 5
of food by making full use of technical and scientific knowledge, 6
by disseminating knowledge of the principles of nutrition and by 7
developing or reforming agrarian systems in such a way as to 8
achieve the most efficient development and utilization of natural 9
resources; 10
(b) Taking into account the problems of both food-importing and 11
food-exporting countries, to ensure an equitable distribution of 12
world food supplies in relation to need. 13
Article 12 14
1. The States Parties to the present Covenant recognize the right of 15
everyone to the enjoyment of the highest attainable standard of physical and 16
mental health. 17
2. The steps to be taken by the States Parties to the present Covenant to 18
achieve the full realization of this right shall include those necessary for-- 19
(a) The provision for the reduction of the stillbirth-rate and of infant 20
mortality and for the healthy development of the child; 21
(b) The improvement of all aspects of environmental and industrial 22
hygiene; 23
(c) The prevention, treatment and control of epidemic, endemic, 24
occupational and other diseases; 25
(d) The creation of conditions which would assure to all medical 26
service and medical attention in the event of sickness. 27
352
Workplace Relations
SCHEDULE 1 (continued)
Article 13 1
1. The States Parties to the present Covenant recognize the right of 2
everyone to education. They agree that education shall be directed to the full 3
development of the human personality and the sense of its dignity, and shall 4
strengthen the respect for human rights and fundamental freedoms. They 5
further agree that education shall enable all persons to participate effectively 6
in a free society, promote understanding, tolerance and friendship among all 7
nations and all racial, ethnic or religious groups, and further the activities of 8
the United Nations for the maintenance of peace. 9
2. The States Parties to the present Covenant recognize that, with a view 10
to achieving the full realization of this right-- 11
(a) Primary education shall be compulsory and available free to all; 12
(b) Secondary education in its different forms, including technical and 13
vocational secondary education, shall be made generally available 14
and accessible to all by every appropriate means, and in particular 15
by the progressive introduction of free education; 16
(c) Higher education shall be made equally accessible to all, on the 17
basis of capacity, by every appropriate means, and in particular by 18
the progressive introduction of free education; 19
(d) Fundamental education shall be encouraged or intensified as far as 20
possible for those persons who have not received or completed 21
the whole period of their primary education; 22
(e) The development of a system of schools at all levels shall be 23
actively pursued, an adequate fellowship system shall be 24
established, and the material conditions of teaching staff shall be 25
continuously improved. 26
3. The States Parties to the present Covenant undertake to have respect 27
for the liberty of parents and, when applicable, legal guardians to choose for 28
their children schools, other than those established by the public authorities, 29
which conform to such minimum educational standards as may be laid 30
353
Workplace Relations
SCHEDULE 1 (continued)
down or approved by the State and to ensure the religious and moral 1
education of their children in conformity with their own convictions. 2
4. No part of this article shall be construed so as to interfere with the 3
liberty of individuals and bodies to establish and direct educational 4
institutions, subject always to the observance of the principles set forth in 5
paragraph 1 of this article and to the requirement that the education given in 6
such institutions shall conform to such minimum standards as may be laid 7
down by the State. 8
Article 14 9
Each State Party to the present Covenant which, at the time of becoming 10
a Party, has not been able to secure in its metropolitan territory or other 11
territories under its jurisdiction compulsory primary education, free of 12
charge, undertakes, within two years, to work out and adopt a detailed plan 13
of action for the progressive implementation, within a reasonable number of 14
years, to be fixed in the plan, of the principle of compulsory education free 15
of charge for all. 16
Article 15 17
1. The States Parties to the present Covenant recognize the right of 18
everyone-- 19
(a) To take part in cultural life; 20
(b) To enjoy the benefits of scientific progress and its applications; 21
(c) To benefit from the protection of the moral and material interests 22
resulting from any scientific, literary or artistic production of 23
which he is the author. 24
354
Workplace Relations
SCHEDULE 1 (continued)
2. The steps to be taken by the States Parties to the present Covenant to 1
achieve the full realization of this right shall include those necessary for the 2
conservation, the development and the diffusion of science and culture. 3
3. The States Parties to the present Covenant undertake to respect the 4
freedom indispensable for scientific research and creative activity. 5
4. The States Parties to the present Covenant recognize the benefits to be 6
derived from the encouragement and development of international contacts 7
and co-operation in the scientific and cultural fields. 8
9
355
Workplace Relations
SCHEDULE 2 1
¡
FAMILY RESPONSIBILITIES CONVENTION 2
sch 5 3
The General Conference of the International Labour Organisation, 4
Having been convened at Geneva by the Governing Body of the 5
International Labour Office and having met in its Sixty-seventh 6
Session on 3 June 1981, and 7
Noting the Declaration of Philadelphia concerning the Aims and 8
Purposes of the International Labour Organisation which recognises 9
that `all human beings, irrespective of race, creed or sex, have the right 10
to pursue their material well-being and their spiritual development in 11
conditions of freedom and dignity, of economic security and equal 12
opportunity', and 13
Noting the terms of the Declaration on Equality of Opportunity and 14
Treatment for Women Workers and of the resolution concerning a 15
plan of action with a view to promoting equality of opportunity and 16
treatment for women workers, adopted by the International Labour 17
Conference in 1975, and 18
Noting the provisions of international labour Conventions and 19
Recommendations aimed at ensuring equality of opportunity and 20
treatment for men and women workers, namely the Equal 21
Remuneration Convention and Recommendation, 1951, the 22
Discrimination (Employment and Occupation) Convention and 23
Recommendation, 1958, and Part VIII of the Human Resources 24
Development Recommendation, 1975, and 25
Recalling that the Discrimination (Employment and Occupation) 26
Convention, 1958, does not expressly cover distinctions made on the 27
basis of family responsibilities, and considering that supplementary 28
standards are necessary in this respect, and 29
356
Workplace Relations
SCHEDULE 2 (continued)
Noting the terms of the Employment (Women with Family 1
Responsibilities) Recommendation, 1965, and considering the changes 2
which have taken place since its adoption, and 3
Noting that instruments on equality of opportunity and treatment for 4
men and women have also been adopted by the United Nations and 5
other specialised agencies, and recalling, in particular, the fourteenth 6
paragraph of the Preamble of the United Nations Convention on the 7
Elimination of All Forms of Discrimination against Women, 1979, to 8
the effect that States Parties are `aware that a change in the traditional 9
role of men as well as the role of women in society and in the family is 10
needed to achieve full equality between men and women', and 11
Recognising that the problems of workers with family responsibilities 12
are aspects of wider issues regarding the family and society which 13
should be taken into account in national policies, and 14
Recognising the need to create effective equality of opportunity and 15
treatment as between men and women workers with family 16
responsibilities and between such workers and other workers, and 17
Considering that many of the problems facing all workers are 18
aggravated in the case of workers with family responsibilities and 19
recognising the need to improve the conditions of the latter both by 20
measures responding to their special needs and by measures designed 21
to improve the conditions of workers in general, and 22
Having decided upon the adoption of certain proposals with regard to 23
equal opportunities and equal treatment for men and women workers: 24
workers with family responsibilities, which is the fifth item on the 25
agenda of the session, and 26
Having determined that these proposals shall take the form of an 27
international Convention, 28
adopts this twenty-third day of June of the year one thousand nine hundred 29
and eighty-one the following Convention, which may be cited as the 30
Workers with Family Responsibilities Convention, 1981: 31
357
Workplace Relations
SCHEDULE 2 (continued)
Article 1 1
1. This Convention applies to men and women workers with 2
responsibilities in relation to their dependent children, where such 3
responsibilities restrict their possibilities of preparing for, entering, 4
participating in or advancing in economic activity. 5
2. The provisions of this Convention shall also be applied to men and 6
women workers with responsibilities in relation to other members of their 7
immediate family who clearly need their care or support, where such 8
responsibilities restrict their possibilities of preparing for, entering, 9
participating in or advancing in economic activity. 10
3. For the purposes of this Convention, the terms "dependent child" 11
and "other member of the immediate family who clearly needs care or 12
support" mean persons defined as such in each country by one of the 13
means referred to in Article 9 of this Convention. 14
4. The workers covered by virtue of paragraphs 1 and 2 of this Article are 15
hereinafter referred to as "workers with family responsibilities". 16
Article 2 17
This Convention applies to all branches of economic activity and all 18
categories of workers. 19
Article 3 20
1. With a view to creating effective equality of opportunity and treatment 21
for men and women workers, each Member shall make it an aim of national 22
policy to enable persons with family responsibilities who are engaged or 23
358
Workplace Relations
SCHEDULE 2 (continued)
wish to engage in employment to exercise their right to do so without being 1
subject to discrimination and, to the extent possible, without conflict 2
between their employment and family responsibilities. 3
2. For the purposes of paragraph 1 of this Article, the term 4
"discrimination" means discrimination in employment and occupation as 5
defined by Articles 1 and 5 of the Discrimination (Employment and 6
Occupation) Convention, 1958. 7
Article 4 8
With a view to creating effective equality of opportunity and treatment for 9
men and women workers, all measures compatible with national conditions 10
and possibilities shall be taken-- 11
(a) to enable workers with family responsibilities to exercise their 12
right to free choice of employment; and 13
(b) to take account of their needs in terms and conditions of 14
employment and in social security. 15
Article 5 16
All measures compatible with national conditions and possibilities shall 17
further be taken-- 18
(a) to take account of the needs of workers with family 19
responsibilities in community planning; and 20
(b) to develop or promote community services, public or private, 21
such as childcare and family services and facilities. 22
359
Workplace Relations
SCHEDULE 2 (continued)
Article 6 1
The competent authorities and bodies in each country shall take 2
appropriate measures to promote information and education which engender 3
broader public understanding of the principle of equality of opportunity and 4
treatment for men and women workers and of the problems of workers 5
with family responsibilities, as well as a climate of opinion conducive to 6
overcoming these problems. 7
Article 7 8
All measures compatible with national conditions and possibilities, 9
including measures in the field of vocational guidance and training, shall be 10
taken to enable workers with family responsibilities to become and remain 11
integrated in the labour force, as well as to re-enter the labour force after an 12
absence due to those responsibilities. 13
Article 8 14
Family responsibilities shall not, as such, constitute a valid reason for 15
termination of employment. 16
Article 9 17
The provisions of this Convention may be applied by laws or regulations, 18
collective agreements, works rules, arbitration awards, court decisions or a 19
combination of these methods, or in any other manner consistent with 20
national practice which may be appropriate, account being taken of national 21
conditions. 22
360
Workplace Relations
SCHEDULE 2 (continued)
Article 10 1
1. The provisions of this Convention may be applied by stages if 2
necessary, account being taken of national conditions--Provided that such 3
measures of implementation as are taken shall apply in any case to all the 4
workers covered by Article 1, paragraph 1. 5
2. Each Member which ratifies this Convention shall indicate in the first 6
report on the application of the Convention submitted under article 22 of the 7
Constitution of the International Labour Organisation in what respect, if any, 8
it intends to make use of the faculty given by paragraph 1 of this Article, 9
and shall state in subsequent reports the extent to which effect has been 10
given or is proposed to be given to the Convention in that respect. 11
Article 11 12
Employers' and workers' organisations shall have the right to participate, 13
in a manner appropriate to national conditions and practice, in devising and 14
applying measures designed to give effect to the provisions of this 15
Convention. 16
Article 12 17
The formal ratifications of this Convention shall be communicated to the 18
Director-General of the International Labour Office for registration. 19
Article 13 20
1. This Convention shall be binding only upon those Members of the 21
International Labour Organisation whose ratifications have been registered 22
with the Director-General. 23
361
Workplace Relations
SCHEDULE 2 (continued)
2. It shall come into force twelve months after the date on which the 1
ratifications of two Members have been registered with the 2
Director-General. 3
3. Thereafter, this Convention shall come into force for any Member 4
twelve months after the date on which its ratification has been registered. 5
Article 14 6
1. A Member which has ratified this Convention may denounce it after 7
the expiration of ten years from the date on which the Convention first 8
comes into force, by an act communicated to the Director-General of the 9
International Labour Office for registration. Such denunciation shall not take 10
effect until one year after the date on which it is registered. 11
2. Each Member which has ratified this Convention and which does not, 12
within the year following the expiration of the period of ten years mentioned 13
in the preceding paragraph, exercise the right of denunciation provided for in 14
this Article, will be bound for another period of ten years and, thereafter, 15
may denounce this Convention at the expiration of each period of ten years 16
under the terms provided for in this Article. 17
Article 15 18
1. The Director-General of the International Labour Office shall notify all 19
Members of the International Labour Organisation of the registration of all 20
ratifications and denunciations communicated to him by the Members of the 21
Organisation. 22
2. When notifying the Members of the Organisation of the registration of 23
the second ratification communicated to him, the Director-General shall 24
362
Workplace Relations
SCHEDULE 2 (continued)
draw the attention of the Members of the Organisation to the date upon 1
which the Convention will come into force. 2
Article 16 3
The Director-General of the International Labour Office shall 4
communicate to the Secretary-General of the United Nations for registration 5
in accordance with Article 102 of the Charter of the United Nations full 6
particulars off all ratifications and acts of denunciation registered by him in 7
accordance with the provisions of the preceding Articles. 8
Article 17 9
At such times as it may consider necessary the Governing Body of the 10
International Labour Office shall present to the General Conference a report 11
on the working of this Convention and shall examine the desirability of 12
placing on the agenda of the conference the question of its revision in whole 13
or in part. 14
Article 18 15
1. Should the Conference adopt a new Convention revising this 16
Convention in whole or in part, then, unless the new Convention otherwise 17
provides-- 18
(a) the ratification by a Member of the new revising Convention shall 19
ipso jure involve the immediate denunciation of this Convention, 20
notwithstanding the provisions of Article 14 above, if and when 21
the new revising Convention shall have come into force; 22
(b) as from the date when the new revising Convention comes into 23
force this Convention shall cease to be open to ratification by the 24
Members. 25
363
Workplace Relations
SCHEDULE 2 (continued)
2. This Convention shall in any case remain in force in its actual form 1
and content for those Members which have ratified it but have not ratified 2
the revising Convention. 3
Article 19 4
The English and French versions of the text of this Convention are 5
equally authoritative. 6
The foregoing is the authentic text of the Convention duly adopted by the 7
General Conference of the International Labour Organisation during its 8
Sixty-seventh Session which was held at Geneva and declared closed the 9
twenty-fourth day of June 1981. 10
IN FAITH WHEREOF we have appended our signatures this 11
twenty-fifth day of June 1981. 12
13
364
Workplace Relations
SCHEDULE 3 1
¡
ERMINATION OF EMPLOYMENT CONVENTION 2
T
sch 5 3
The General Conference of the International Labour Organisation, 4
Having been convened at Geneva by the Governing Body of the 5
International Labour Office, and having met in its Sixty-eighth Session 6
on 2 June 1982, and 7
Noting the existing international standards contained in the Termination 8
of Employment Recommendation, 1963, and 9
Noting that since, the adoption of the Termination of Employment 10
Recommendation, 1963, significant developments have occurred in the 11
law and practice of many member States on the questions covered by 12
that Recommendation, and 13
Considering that these developments have made it appropriate to adopt 14
new international standards on the subject, particularly having regard to 15
the serious problems in this field resulting from the economic 16
difficulties and technological changes experienced in recent years in 17
many countries, 18
Having decided upon the adoption of certain proposals with regard to 19
termination of employment at the initiative of the employer, which is 20
the fifth item on the agenda of the session, and 21
Having determined that these proposals shall take the form of an 22
international Convention; 23
adopts this twenty-second day of June of the year one thousand nine 24
hundred and eighty-two the following Convention, which may be cited as 25
the Termination of Employment Convention, 1982: 26
365
Workplace Relations
SCHEDULE 3 (continued)
PART I--METHODS OF IMPLEMENTATION, 1
SCOPE AND DEFINITIONS 2
Article 1 3
The provisions of this Convention shall, in so far as they are not 4
otherwise made effective by means of collective agreements, arbitration 5
awards or court decisions or in such other manner as may be consistent 6
with national practice, be given effect by laws or regulations. 7
Article 2 8
1. This Convention applies to all branches of economic activity and to all 9
employed persons. 10
2. A Member may exclude the following categories of employed persons 11
from all or some of the provisions of this Convention-- 12
(a) workers engaged under a contract of employment for a specified 13
period of time or a specified task; 14
(b) workers serving a period of probation or a qualifying period of 15
employment, determined in advance and of reasonable duration; 16
(c) workers engaged on a casual basis for a short period. 17
3. Adequate safeguards shall be provided against recourse to contracts of 18
employment for a specified period of time the aim of which is to avoid the 19
protection resulting from this Convention. 20
4. In so far as necessary, measures may be taken by the competent 21
authority or through the appropriate machinery in a country, after 22
consultation with the organisations of employers and workers concerned, 23
366
Workplace Relations
SCHEDULE 3 (continued)
where such exist, to exclude from the application of this Convention or 1
certain provisions thereof categories of employed persons whose terms and 2
conditions of employment are governed by special arrangements which as a 3
whole provide protection that is at least equivalent to the protection afforded 4
under the Convention. 5
5. In so far as necessary, measures may be taken by the competent 6
authority or through the appropriate machinery in a country, after 7
consultation with the organisations of employers and workers concerned, 8
where such exist, to exclude from the application of this Convention or 9
certain provisions thereof other limited categories of employed persons in 10
respect of which special problems of a substantial nature arise in the light of 11
the particular conditions of employment of the workers concerned or the 12
size or nature of the undertaking that employs them. 13
6. Each Member which ratifies this Convention shall list in the first 14
report on the application of the Convention submitted under article 22 of the 15
Constitution of the International Labour Organisation any categories which 16
may have been excluded in pursuance of paragraphs 4 and 5 of this Article, 17
giving the reasons for such exclusion, and shall state in subsequent reports 18
the position of its law and practice regarding the categories excluded, and the 19
extent to which effect has been given or is proposed to be given to the 20
Convention in respect of such categories. 21
Article 3 22
For the purpose of this Convention the terms "termination" and 23
"termination of employment" mean termination of employment at the 24
initiative of the employer. 25
367
Workplace Relations
SCHEDULE 3 (continued)
ART II--STANDARDS OF GENERAL 1
P
APPLICATION 2
Division A--Justification for termination 3
Article 4 4
The employment of a worker shall not be terminated unless there is a 5
valid reason for such termination connected with the capacity or conduct of 6
the worker or based on the operational requirements of the undertaking, 7
establishment or service. 8
Article 5 9
The following, inter alia, shall not constitute valid reasons for 10
termination-- 11
(a) union membership or participation in union activities outside 12
working hours or, with the consent of the employer, within 13
working hours; 14
(b) seeking office as, or acting or having acted in the capacity of, a 15
workers' representative; 16
(c) the filing of a complaint or the participation in proceedings against 17
an employer involving alleged violation of laws or regulations or 18
recourse to competent administrative authorities; 19
(d) race, colour, sex, marital status, family responsibilities, 20
pregnancy, religion, political opinion, national extraction or social 21
origin; 22
(e) absence from work during maternity leave. 23
368
Workplace Relations
SCHEDULE 3 (continued)
Article 6 1
1. Temporary absence from work because of illness or injury shall not 2
constitute a valid reason for termination. 3
2. The definition of what constitutes temporary absence from work, the 4
extent to which medical certification shall be required and possible 5
limitations to the application of paragraph 1 of this Article shall be 6
determined in accordance with the methods of implementation referred to in 7
Article 1 of this Convention. 8
Division B--Procedure prior to or at the time of termination 9
Article 7 10
The employment of a worker shall not be terminated for reasons related 11
to the worker's conduct or performance before he is provided an 12
opportunity to defend himself against the allegations made, unless the 13
employer cannot reasonably be expected to provide this opportunity. 14
Division C--Procedure of appeal against termination 15
Article 8 16
1. A worker who considers that his employment has been unjustifiably 17
terminated shall be entitled to appeal against that termination to an impartial 18
body, such as a court, labour tribunal, arbitration committee or arbitrator. 19
2. Where termination has been authorised by a competent authority the 20
application of paragraph 1 of this Article may be varied according to 21
national law and practice. 22
369
Workplace Relations
SCHEDULE 3 (continued)
3. A worker may be deemed to have waived his right to appeal against 1
the termination of his employment if he has not exercised that right within a 2
reasonable period of time after termination. 3
Article 9 4
1. The bodies referred to in Article 8 of this Convention shall be 5
empowered to examine the reasons given for the termination and the other 6
circumstances relating to the case and to render a decision on whether the 7
termination was justified. 8
2. In order for the worker not to have to bear alone the burden of proving 9
that the termination was not justified, the methods of implementation 10
referred to in Article 1 of this Convention shall provide for one or the other 11
or both of the following possibilities-- 12
(a) the burden of proving the existence of a valid reason for the 13
termination as defined in Article 4 of this Convention shall rest on 14
the employer; 15
(b) the bodies referred to in Article 8 of this Convention shall be 16
empowered to reach a conclusion on the reason for the 17
termination having regard to the evidence provided by the parties 18
and according to procedures provided for by national law and 19
practice. 20
3. In cases of termination stated to be for reasons based on the 21
operational requirements of the undertaking, establishment or service, the 22
bodies referred to in Article 8 of this Convention shall be empowered to 23
determine whether the termination was indeed for these reasons, but the 24
extent to which they shall also be empowered to decide whether these 25
reasons are sufficient to justify that termination shall be determined by the 26
methods of implementation referred to in Article 1 of this Convention. 27
370
Workplace Relations
SCHEDULE 3 (continued)
Article 10 1
If the bodies referred to in Article 8 of this Convention find that 2
termination is unjustified and if they are not empowered or do not find it 3
practicable, in accordance with national law and practice, to declare the 4
termination invalid and/or order or propose reinstatement of the worker, 5
they shall be empowered to order payment of adequate compensation or 6
such other relief as may be deemed appropriate. 7
D--Period of notice 8
Division
Article 11 9
A worker whose employment is to be terminated shall be entitled to a 10
reasonable period of notice or compensation in lieu thereof, unless he is 11
guilty of serious misconduct, that is, misconduct of such a nature that it 12
would be unreasonable to require the employer to continue his employment 13
during the notice period. 14
Division E--Severance allowance and other income protection 15
Article 12 16
1. A worker whose employment has been terminated shall be entitled, in 17
accordance with national law and practice, to-- 18
(a) a severance allowance or other separation benefits, the amount of 19
which shall be based inter alia on length of service and the level of 20
wages, and paid directly by the employer or by a fund constituted 21
by employers' contributions; or 22
(b) benefits from unemployment insurance or assistance or other 23
forms of social security, such as old-age or invalidity benefits, 24
371
Workplace Relations
SCHEDULE 3 (continued)
under the normal conditions to which such benefits are subject; or 1
(c) a combination of such allowance and benefits. 2
2. A worker who does not fulfil the qualifying conditions for 3
unemployment insurance or assistance under a scheme of general scope 4
need not be paid any allowance or benefit referred to in paragraph 1, 5
subparagraph (a), of this Article solely because he is not receiving an 6
unemployment benefit under paragraph 1, subparagraph (b). 7
3. Provision may be made by the methods of implementation referred to 8
in Article 1 of this Convention for loss of entitlement to the allowance or 9
benefits referred to in paragraph 1, subparagraph (a), of this Article in the 10
event of termination for serious misconduct. 11
ART III--SUPPLEMENTARY PROVISIONS 12
P
CONCERNING TERMINATIONS OF EMPLOYMENT 13
FOR ECONOMIC, TECHNOLOGICAL, 14
STRUCTURAL OR SIMILAR REASONS 15
Division A--Consultation of workers' representatives 16
Article 13 17
1. When the employer contemplates terminations for reasons of an 18
economic, technological, structural or similar nature, the employer shall-- 19
(a) provide the workers' representatives concerned in good time with 20
relevant information including the reasons for the terminations 21
contemplated, the number and categories of workers likely to be 22
affected and the period over which the terminations are intended 23
372
Workplace Relations
SCHEDULE 3 (continued)
to be carried out; 1
(b) give, in accordance with national law and practice, the workers' 2
representatives concerned, as early as possible, an opportunity for 3
consultation on measures to be taken to avert or to minimise the 4
terminations and measures to mitigate the adverse effects of any 5
terminations on the workers concerned such as finding alternative 6
employment. 7
2. The applicability of paragraph 1 of this Article may be limited by the 8
methods of implementation referred to in Article 1 of this Convention to 9
cases in which the number of workers whose termination of employment is 10
contemplated is at least a specified number or percentage of the workforce. 11
3. For the purposes of this Article the term "the workers' 12
representatives concerned" means the workers' representatives 13
recognised as such by national law or practice, in conformity with the 14
Workers' Representatives Convention, 1971. 15
B--Notification to the competent authority 16
Division
Article 14 17
1. When the employer contemplates terminations for reasons of an 18
economic, technological, structural or similar nature, he shall notify, in 19
accordance with national law and practice, the competent authority thereof as 20
early as possible, giving relevant information, including a written statement 21
of the reasons for the terminations, the number and categories of workers 22
likely to be affected and the period over which the terminations are intended 23
to be carried out. 24
2. National laws or regulations may limit the applicability of paragraph 1 25
of this Article to cases in which the number of workers whose termination 26
373
Workplace Relations
SCHEDULE 3 (continued)
of employment is contemplated is at least a specified number or percentage 1
of the workforce. 2
3. The employer shall notify the competent authority of the terminations 3
referred to in paragraph 1 of this Article a minimum period of time before 4
carrying out the terminations, such period to be specified by national laws or 5
regulations. 6
ART IV--FINAL PROVISIONS 7
P
Article 15 8
The formal ratifications of this Convention shall be communicated to the 9
Director-General of the International Labour Office for registration. 10
Article 16 11
1. This Convention shall be binding only upon those Members of the 12
International Labour Organisation whose ratifications have been registered 13
with the Director-General. 14
2. It shall come into force twelve months after the date on which the 15
ratifications of two Members have been registered with the 16
Director-General. 17
3. Thereafter, this Convention shall come into force for any Member 18
twelve months after the date on which its ratification has been registered. 19
374
Workplace Relations
SCHEDULE 3 (continued)
Article 17 1
1. A Member which has ratified this Convention may denounce it after 2
the expiration of ten years from the date on which the Convention first 3
comes into force, by an act communicated to the Director-General of the 4
International Labour Office for registration. Such denunciation shall not take 5
effect until one year after the date on which it is registered. 6
2. Each Member which has ratified this Convention and which does not, 7
within the year following the expiration of the period of ten years mentioned 8
in the preceding paragraph, exercise the right of denunciation provided for in 9
this Article, will be bound for another period of ten years and, thereafter, 10
may denounce this Convention at the expiration of each period of ten years 11
under the terms provided for in this Article. 12
Article 18 13
1. The Director-General of the International Labour Office shall notify all 14
Members of the International Labour Organisation of the registration of all 15
ratifications and denunciations communicated to him by the Members of the 16
Organisation. 17
2. When notifying the Members of the Organisation of the registration of 18
the second ratification communicated to him, the Director-General shall 19
draw the attention of the Members of the Organisation to the date upon 20
which the Convention will come into force. 21
Article 19 22
The Director-General of the International Labour Office shall 23
communicate to the Secretary-General of the United Nations for registration 24
in accordance with article 102 of the Charter of the United Nations full 25
375
Workplace Relations
SCHEDULE 3 (continued)
particulars of all ratifications and acts of denunciation registered by him in 1
accordance with the provisions of the preceding Articles. 2
Article 20 3
At such times as it may consider necessary the Governing Body of the 4
International Labour Office shall present to the General Conference a report 5
on the working of this Convention and shall examine the desirability of 6
placing on the agenda of the conference the question of its revision in whole 7
or in part. 8
Article 21 9
1. Should the Conference adopt a new Convention revising this 10
Convention in whole or in part, then, unless the new Convention otherwise 11
provides-- 12
(a) the ratification by a Member of the new revising Convention shall 13
ipso jure involve the immediate denunciation of this Convention, 14
notwithstanding the provisions of Article 17 above, if and when 15
the new revising Convention shall have come into force; 16
(b) as from the date when the new revising Convention comes into 17
force this Convention shall cease to be open to ratification by the 18
Members. 19
2. This Convention shall in any case remain in force in its actual form 20
and content for those Members which have ratified it but have not ratified 21
the revising Convention. 22
376
Workplace Relations
SCHEDULE 3 (continued)
Article 22 1
The English and French versions of the text of this Convention are 2
equally authoritative. 3
The foregoing is the authentic text of the Convention duly adopted by the 4
General Conference of the International Labour Organisation during its 5
Sixty-eighth Session which was held at Geneva and declared closed the 6
twenty-third day of June 1982. 7
IN FAITH WHEREOF we have appended our signatures this 8
twenty-third day of June 1982. 9
10
377
Workplace Relations
SCHEDULE 4 1
¡
MENDED ACTS 2
A
section 495 3
ACTS INTERPRETATION ACT 1954 4
´
1. Section 36, definitions "Industrial Court", "industrial magistrate", 5
"Industrial Relations Commission", `Industrial Relations Act 1990'-- 6
omit, insert-- 7
`Workplace Relations Act 1996'. 8
ANZAC DAY ACT 1995 9
´
1. Section 15(1)(a), `0.0034%'-- 10
omit, insert-- 11
`0.34%'. 12
PUBLIC SERVICE ACT 1996 13
´
1. Section 117(2), `an agreement made under the Industrial Relations 14
Act 1990, part 11'-- 15
omit, insert-- 16
`an industrial agreement'. 17
2. Section 117-- 18
insert-- 19
378
Workplace Relations
SCHEDULE 4 (continued)
`(3) In this section-- 1
"industrial agreement" means an agreement made under-- 2
(a) the Industrial Relations Act 1990, part 11 and continued in force 3
under the Workplace Relations Act 1996; or 4
(b) the Workplace Relations Act 1996, chapter 2, part 1.'. 5
RADING (ALLOWABLE HOURS) ACT 1990 6
´T
1. Section 6(1)(b), `6'-- 7
omit, insert-- 8
`20'. 9
2. Section 6(1)(c), `20'-- 10
omit, insert-- 11
`60'. 12
3. Section 15-- 13
omit. 14
4. Section 16(2), `day on which' to `closed'-- 15
omit, insert-- 16
`Sunday or public holiday'. 17
5. Section 17(2)(b)-- 18
omit. 19
379
Workplace Relations
SCHEDULE 4 (continued)
6. Section 18-- 1
omit. 2
7. Section 21(1)-- 3
omit, insert-- 4
`21.(1) A full bench of the industrial commission may decide trading 5
hours for non-exempt shops. 6
`(1A) However, the full bench is not to decide trading hours that are less 7
than the following hours on a stated day, other than a public holiday-- 8
(a) 8 a.m. and 9 p.m. for Monday to Friday; 9
(b) 8 a.m. and 5 p.m. for Saturday.'. 10
8. Section 21-- 11
insert-- 12
`(3) In subsection (1A)-- 13
"public holiday" see the Holidays Act 1983.'. 14
9. Section 26(e)-- 15
omit, insert-- 16
`(e) the public interest, consumers' interest, and business interest 17
(whether small, medium or large);'. 18
VOCATIONAL EDUCATION, TRAINING AND 19
´
EMPLOYMENT ACT 1991 20
1. Section 4, definitions "industrial award or industrial agreement" 21
and "industrial organisation"-- 22
omit. 23
380
Workplace Relations
SCHEDULE 4 (continued)
2. Section 4-- 1
insert-- 2
` "industrial award" means an award under the Workplace Relations Act 3
1996. 4
"industrial inspector" means an inspector under the Workplace Relations 5
Act 1996. 6
"industrial instrument" means-- 7
(a) an industrial instrument under the Workplace Relations Act 1996; 8
or 9
(b) an award or agreement made under the Workplace Relations Act 10
1996 (Cwlth). 11
"industrial organisation" means-- 12
(a) registered under the Industrial Organisations Act 1996 as an 13
organisation; or 14
(b) registered under the Workplace Relations Act 1996 (Cwlth).'. 15
3. Section 4, definition "registration", `a person'-- 16
omit, insert-- 17
`an entity'. 18
4. Section 4, definition "registration", `the person'-- 19
omit, insert-- 20
`the entity'. 21
5. Section 9-- 22
insert-- 23
`(p) to perform the functions of an approving authority under-- 24
381
Workplace Relations
SCHEDULE 4 (continued)
(i) the Workplace Relations Act 1996; or 1
(ii) the Workplace Relations Act 1996 (Cwlth).'. 2
6. Section 13(1)(d), `persons'-- 3
omit, insert-- 4
`entities'. 5
7. Section 20(1)(a)(iii), `persons'-- 6
omit, insert-- 7
`entities'. 8
8. Section 26(1), `person'-- 9
omit, insert-- 10
`appropriately qualified person or other appropriate entity'. 11
9. Section 67(1), definition "prescribed words", paragraph (b), 12
`person'-- 13
omit, insert-- 14
`entity'. 15
10. Section 83(3) and (4), `award'-- 16
omit, insert-- 17
`instrument'. 18
382
Workplace Relations
SCHEDULE 4 (continued)
11. Section 84(1), (2) (first and second mention) and (4) (first 1
mention), `award'-- 2
omit, insert-- 3
`instrument'. 4
12. Section 84(2)(b) and (4), `award or agreement'-- 5
omit, insert-- 6
`instrument or industrial agreement'. 7
13. Section 84(5)-- 8
omit, insert-- 9
`(5) Subsection (5A) applies if the industrial commission has made an 10
order under the Workplace Relations Act 1996 in relation to an approved 11
occupational superannuation fund as the one to which an industrial 12
instrument requires contribution to be made. 13
`(5A) If an employer fails to make the contribution as required by the 14
order, the employer is taken to fail to make the contribution as required by 15
the industrial instrument.'. 16
14. Section 86(1)(a) and (5), `award'-- 17
omit, insert-- 18
`instrument'. 19
15. Section 87(1), (2), (3) (first mention) and (4) to (6), `award'-- 20
omit, insert-- 21
`instrument'. 22
383
Workplace Relations
SCHEDULE 4 (continued)
16. Section 87(3)(a) and (b), `award or agreement'-- 1
omit, insert-- 2
`instrument or industrial agreement'. 3
17. Section 87(7), `but not later than 3 months after they become 4
due'-- 5
omit, insert-- 6
`, but within 3 months after the leave becomes due,'. 7
18. Section 92-- 8
omit, insert-- 9
`Inspection of time and wages record 10
`92.(1) An employer must produce a time and wages record for 11
inspection by-- 12
(a) a training consultant; or 13
(b) an industrial inspector; or 14
(c) a person authorised by the State Training Council. 15
`(2) In this section-- 16
"time and wages record" see the Workplace Relations Act 1996, 17
section 391.'. 18
19. Section 98(4)-- 19
insert-- 20
`(d) a training consultant or industrial inspector;'. 21
384
Workplace Relations
SCHEDULE 4 (continued)
20. Section 99(2) and (3), at the end-- 1
insert-- 2
`Maximum penalty--40 penalty units.'. 3
21. Section 99-- 4
insert-- 5
`(4A) An offence under subsection (2), (3) or (4) is a continuing offence, 6
that may be charged in 1 complaint for a period.'. 7
22. Section 100(6)-- 8
insert-- 9
`(d) a training consultant or industrial inspector;'. 10
23. Section 101(1)-- 11
insert-- 12
` "amount due", to an apprentice, includes an amount equal to the cost of 13
tools of trade to which section 98(2)224 relates that have not been 14
provided to the apprentice. 15
"demand" means a written demand.'. 16
24. Section 101(3)(b)(i), `award'-- 17
omit, insert-- 18
`instrument'. 19
224 Section 98 (Provision of tools of trade)
385
Workplace Relations
SCHEDULE 4 (continued)
25. Section 102(3)(a)(iii), `award'-- 1
omit, insert-- 2
`instrument'. 3
26. Section 103(1)-- 4
insert-- 5
` "relevant industrial instrument" of an apprentice includes an industrial 6
instrument determined by the State Training Council under 7
section 86(5) for the apprentice's apprenticeship calling.'. 8
27. Section 103(2) and (3), `award'-- 9
omit, insert-- 10
`instrument'. 11
28. Section 106(2), `award'-- 12
omit, insert-- 13
`instrument'. 14
29. Section 112(2)(a)(i), `award'-- 15
omit, insert-- 16
`instrument'. 17
30. Section 123(1)(a)-- 18
insert-- 19
`(iii) the appointment as industrial inspector of a person claiming 20
to be, or stated to be, an industrial inspector, and the 21
authority of an industrial inspector to take a proceeding or do 22
any act;'. 23
386
Workplace Relations
SCHEDULE 4 (continued)
31. Section 123(1)-- 1
insert-- 2
`(h) a copy of an industrial instrument (other than an instrument made 3
under the Workplace Relations Act 1996 (Cwlth)), certified as a 4
true copy by the registrar of the industrial commission, is 5
admissible as evidence of the instrument; 6
(i) a certificate purporting to be a certificate of a trustee of an 7
occupational superannuation fund, for a period of service of an 8
apprentice or trainee concerned in the proceeding about-- 9
(i) an amount paid as contribution to the fund; or 10
(ii) an amount worked out on the rate of return that stated 11
contributions would have attracted to the fund; 12
is evidence of the matters.'. 13
WORKPLACE HEALTH AND SAFETY ACT 1995 14
´
1. Section 66, definition "union", `Industrial Relations Act 1990'-- 15
omit, insert-- 16
`Industrial Organisations Act 1996'. 17
2. Section 164(3), `aggrieved by'-- 18
omit, insert-- 19
`dissatisfied with'. 20
3. Section 164(4), `Industrial Relations Act 1990'-- 21
omit, insert-- 22
`Workplace Relations Act 1996'. 23
387
Workplace Relations
SCHEDULE 4 (continued)
4. Section 164-- 1
insert-- 2
`(6) In this section-- 3
"person dissatisfied with a decision" in a proceeding means-- 4
(a) a party to the proceeding; or 5
(b) a person bound by the decision; or 6
(c) if an inspector started the proceeding--any inspector.'. 7
8
388
Workplace Relations
SCHEDULE 5 1
¡
DICTIONARY 2
section 5 3
"additional approval requirements", for chapter 2, part 2, see section 68. 4
"administer", for chapter 7, part 6, see section 331. 5
"agreement", for chapter 2, part 3, see section 115. 6
"allowable award matter" see section 128. 7
"amendment agreement", for chapter 2, part 2, see section 68. 8
"ancillary document", for chapter 2, part 2, see section 68. 9
"Anti-Discrimination Conventions" means-- 10
(a) the Equal Remuneration Convention; and 11
(b) the Convention of the Elimination of all Forms of Discrimination 12
against Women; and 13
(c) the Discrimination (Employment and Occupation) Convention; 14
and 15
(d) articles 3 and 7 of the International Covenant on Economic, Social 16
and Cultural Rights (the English text of which is in schedule 1). 17
"apprentice" see Vocational Education, Training and Employment Act 18
1991, section 4. 19
"apprenticeship", for chapter 2, part 3, see section 115. 20
"appropriately qualified", for a person to whom a power under this Act 21
may be delegated, includes having the qualifications, experience or 22
standing appropriate to exercise the power. 23
24
Example of `standing'--
25
A person's classification level in the public service.
"approval notice", for chapter 2, part 2, see section 68. 26
389
Workplace Relations
SCHEDULE 5 (continued)
"approved apprenticeship", for chapter 2, part 3, see section 115. 1
"approved superannuation fund" means a complying superannuation 2
fund-- 3
(a) nominated in an industrial instrument; or 4
(b) agreed between an employer and employee under section 432. 5
"approved traineeship", for chapter 2, part 3, see section 115. 6
"approving authority", for chapter 2, part 3, see section 115. 7
"assistant registrar" see section 315. 8
"attempt to commit an offence" see Criminal Code, section 4. 9
"Australian commission" means the Australian Industrial Relations 10
Commission. 11
"award"-- 12
(a) generally-- 13
(i) means-- 14
(A) an award made under chapter 3 or continued in force 15
under this Act; or 16
(B) an award as amended under the chapter; and 17
(ii) for a person bound by an exceptional matters 18
order--includes the exceptional matters order; and 19
(b) for chapter 2, part 3--see also section 115. 20
"bargaining agent", for chapter 2, part 2, see section 68. 21
"business hours" of an employer means the hours of operation of the 22
employer's business. 23
"calling" means-- 24
(a) a craft, manufacture, occupation, trade, undertaking or vocation; 25
or 26
(b) a section of something mentioned in paragraph (a). 27
390
Workplace Relations
SCHEDULE 5 (continued)
"certified agreement" means-- 1
(a) an agreement certified under chapter 2, part 1 or continued in 2
force under this Act; or 3
(b) a certified agreement as amended under the part. 4
"certified copy", for chapter 2, part 2, see section 68. 5
"chief commissioner" see section 270. 6
"commission" see section 269.225 7
"commissioner" see section 270. 8
"Commonwealth Act" means the Workplace Relations Act 1996 (Cwlth). 9
"Commonwealth award" means an award made under the 10
Commonwealth Act. 11
"Commonwealth employment advocate" means the employment 12
advocate, or an authorised officer, under the Commonwealth Act. 13
"complying superannuation fund" see Superannuation Industry 14
(Supervision) Act 1993 (Cwlth). 15
"continuous service"-- 16
(a) for chapter 4, part 3, see section 160; and 17
(b) for chapter 4, part 4, see section 190. 18
"court" see section 252. 19
"decision"-- 20
(a) means a decision of the court, the commission, a magistrate or the 21
registrar; and 22
(b) includes-- 23
(i) an award, declaration, determination, direction, judgment, 24
order or ruling; and 25
(ii) an agreement approved, certified, or amended by the 26
225 As to whether or not a reference to the commission includes a reference to the
commission constituted by an enterprise commissioner, see section 288(2).
391
Workplace Relations
SCHEDULE 5 (continued)
commission and an extension of the agreement. 1
"demarcation dispute" includes-- 2
(a) a dispute arising between 2 or more organisations, or within an 3
organisation, about the rights, status or functions of members of 4
the organisations or organisation in relation to the employment of 5
the members; or 6
(b) a dispute arising between employers and employees, or between 7
members of different organisations, about the demarcation of 8
functions of employees or classes of employees; or 9
(c) a dispute about the representation under this Act of the industrial 10
interests of employees by an employee organisation. 11
"designated award", for chapter 2, part 3, see section 115. 12
"discrimination" means discrimination-- 13
(a) that would contravene the Anti-Discrimination Act 1991; or 14
(b) on the basis of family responsibilities. 15
"Discrimination (Employment and Occupation) Convention" means 16
the Discrimination (Employment and Occupation) Convention 1958. 17
"dismiss", for chapter 5, part 5, see section 232. 18
"dual commissioner" see section 320. 19
"eligible association" means an association that is eligible to be, but is not, 20
registered as an organisation under the Industrial Organisations Act 21
1996. 22
"eligible employee" means an employee who, under a relevant industrial 23
instrument, is an eligible employee for entitlement to occupational 24
superannuation benefits. 25
"eligible rollover fund" see Superannuation Industry (Supervision) Act 26
1993 (Cwlth). 27
"employee"-- 28
(a) generally--see section 7; and 29
(b) for chapter 2, part 2--see also section 68; and 30
392
Workplace Relations
SCHEDULE 5 (continued)
(c) for chapter 4, part 3--see also section 160. 1
"employee organisation" see Industrial Organisations Act 1996. 2
"employer"-- 3
(a) generally--see section 8; and 4
(b) for chapter 2, part 2--see also section 68; and 5
(c) for chapter 9, part 2, division 2--see also section 404. 6
"employer organisation" see Industrial Organisations Act 1996. 7
"EFA" means an enterprise flexibility agreement continued in force under 8
this Act. 9
"Equal Remuneration Convention" means the Equal Remuneration 10
Convention 1951. 11
"equal remuneration for work of equal value", for chapter 4, part 2, see 12
section 150. 13
"exceptional matters order" means an order of the commission under 14
section 130. 15
"exercising", for chapter 7, part 6, see section 331. 16
"existing employee", for chapter 2, part 2, see section 68. 17
"extension agreement", for chapter 2, part 2, see section 68. 18
"Family Responsibilities Convention" means the Workers with Family 19
Responsibilities Convention 1981 (the English text of which is in 20
schedule 2). 21
"file", for chapter 2, part 2, see section 68. 22
"filing receipt", for chapter 2, part 2, see section 68. 23
"filing requirements", for chapter 2, part 2, see section 68. 24
"full bench" means a full bench of the commission. 25
"industrial Act" means-- 26
(a) this Act; or 27
(b) the Industrial Organisations Act 1996. 28
393
Workplace Relations
SCHEDULE 5 (continued)
"industrial action" means a lockout or strike. 1
"industrial agreement" means an industrial agreement under the repealed 2
Act continued in force under this Act. 3
"industrial authority"-- 4
(a) for chapter 4, part 4--see section 190; and 5
(b) otherwise--means a commission, court, board, tribunal or other 6
entity having authority under the law of the Commonwealth or 7
another State to exercise powers of conciliation or arbitration for 8
industrial matters or industrial disputes. 9
"industrial cause" includes an industrial matter and industrial dispute. 10
"industrial commission" see section 269. 11
"industrial court" see section 252. 12
"industrial dispute" means-- 13
(a) a dispute, including a threatened, pending or probable dispute, 14
about an industrial matter; or 15
(b) a situation that is likely to give rise to a dispute about an industrial 16
matter. 17
"industrial instrument" means an award, certified agreement or QWA. 18
"industrial matter" see section 9. 19
"industrial magistrate" see section 308. 20
"industrial registrar" see section 315. 21
"industrial relations commission" see section 269. 22
"initial day", for chapter 2, part 3, see section 115. 23
"injured employee", for chapter 5, part 5, see section 232. 24
"injury", for chapter 5, part 5, see section 232. 25
"inspector" means a person who holds an appointment as an inspector 26
under section 376. 27
"invalid reason", for a dismissal, see section 217(b). 28
394
Workplace Relations
SCHEDULE 5 (continued)
"joint session" means a proceeding in which a commissioner sits with a 1
member of an industrial authority. 2
"law", for chapter 4, part 3, see section 160. 3
"lockout" means an employer's action in closing a workplace, or 4
suspending or discontinuing the employer's business, or any branch of 5
it, or an employer's failure to continue to employ a number of 6
employees, with intent-- 7
(a) to compel or induce employees to agree to employment 8
conditions or to comply with demands made on them by the 9
employer, or another employer, contrary to this Act; or 10
(b) to cause loss or inconvenience to employees; or 11
(c) to incite, instigate, aid, abet or procure another lockout; or 12
(d) to help another employer to compel or induce employees to agree 13
to employment conditions or comply with demands made by the 14
other employer. 15
"long paternity leave", for chapter 4, part 3, see section 160. 16
"magistrate" see section 308. 17
"management committee" see Industrial Organisation Act 1996. 18
"maternity leave", for chapter 4, part 3, see section 160. 19
"medical certificate", for chapter 4, part 3, see section 160. 20
"member" of the commission means-- 21
(a) a commissioner; or 22
(b) an enterprise commissioner. 23
"multiple-business agreement" see section 13. 24
"negotiating party" see section 40. 25
"new employee", for chapter 2, part 2, see section 68. 26
"no-disadvantage test" see chapter 2, part 3. 27
"nominal expiry date"-- 28
(a) of a certified agreement--see section 14; and 29
395
Workplace Relations
SCHEDULE 5 (continued)
(b) of a QWA--see section 68. 1
"obstruct" includes assault, hinder, intimidate, resist or threaten. 2
"officer" of the court or commission, see sections 315(4) and 349(4). 3
"officer" of an organisation, or branch of an organisation, see Industrial 4
Organisations Act 1996. 5
"organisation" see Industrial Organisations Act 1996. 6
"owner", for chapter 4, part 4, see section 190. 7
"parental leave", for chapter 4, part 3, see section 160. 8
"part 3 long paternity leave", for chapter 4, part 3, see section 160. 9
"part 3 maternity leave", for chapter 4, part 3, see section 160. 10
"part 3 short paternity leave", for chapter 4, part 3, see section 160. 11
"paternity leave", for chapter 4, part 3, see section 160. 12
"party"-- 13
(a) for an industrial instrument or permit--includes a person bound 14
by the instrument or permit; or 15
(b) for chapter 2, part 2--see section 68. 16
"pay" an employee includes pay, with the employee's written consent, on 17
account of the employee. 18
"penalty provision"-- 19
(a) for chapter 2, part 1, division 9--see section 62; and 20
(b) for chapter 2, part 2, division 7--see section 96. 21
"period of operation", for chapter 2, part 2, see section 68. 22
"permit" means-- 23
(a) a students permit; or 24
(b) an aged or infirm persons permit. 25
"person dissatisfied" with a decision in a proceeding means-- 26
(a) a party to the proceeding; or 27
396
Workplace Relations
SCHEDULE 5 (continued)
(b) a person bound by the decision; or 1
(c) if an inspector started the proceeding--any inspector. 2
"place" means-- 3
(a) any land, building, structure, vehicle, vessel or aircraft; or 4
(b) part of anything mentioned in paragraph (a). 5
"president" see section 253. 6
"QWA" means a Queensland workplace agreement under chapter 2, part 2. 7
"QWA date", for chapter 2, part 2, see section 68. 8
"QWA industrial action", for chapter 2, part 2, division 8, see 9
section 100. 10
"records" means any document containing data. 11
"reduced wages" means wages at a rate less than that provided for under a 12
relevant industrial instrument or permit. 13
"refusal notice", for chapter 2, part 2, see section 68. 14
"registrar" see section 315. 15
"relevant award", for chapter 2, part 3, see section 115. 16
"relevant or designated award", for chapter 2, part 2, see section 68. 17
"regular part-time employee" means an employee who-- 18
(a) works less than full-time ordinary hours; and 19
(b) has reasonably predictable hours of work; and 20
(c) is entitled to receive, on a proportionate basis, equivalent wages 21
and employment conditions to those specified in an award for 22
full-time employees who do the same type of work. 23
"repealed Act" means the Industrial Relations Act 1990. 24
"rules of court" means the rules of court made, or continued in force, 25
under this Act. 26
"short paternity leave", for chapter 4, part 3, see section 160. 27
"single business" see section 12. 28
397
Workplace Relations
SCHEDULE 5 (continued)
"spouse" of an employee includes-- 1
(a) a former spouse; and 2
(b) a person of the opposite sex to the employee who lives with the 3
employee in a marriage-like relationship, although not legally 4
married to the employee. 5
"strike"-- 6
(a) means the conduct of 2 or more employees who are, or have 7
been, employed by the same employer, or different employers, 8
consisting in-- 9
(i) a wilful failure to perform work required of them under their 10
employment contracts; or 11
(ii) a performance of work in a way in which it is not 12
customarily performed; or 13
(iii) the adoption of a practice or strategy resulting in a restriction, 14
limitation or delay in the performance of work or a 15
restriction or limitation of the product of work; or 16
(iv) a ban, restriction or limitation on the performance of work or 17
on acceptance or offering for work; or 18
(v) a wilful failure of the employees to attend for work that is 19
not allowed by the employer; or 20
(vi) a wilful failure to perform any work at all by employees who 21
attend for work that is not allowed by the employer; 22
that is because of a combination, agreement or understanding 23
(expressed or implied) entered into by the employees or any of 24
them and that has a purpose-- 25
(vii) to compel or induce an employer to agree to employment 26
conditions, or to employ, or cease to employ, a person or 27
class of person, or to comply with demands made by the 28
employees or any of them or by any other employees; or 29
(viii)to cause loss or inconvenience to an employer in the conduct 30
of business; or 31
398
Workplace Relations
SCHEDULE 5 (continued)
(ix) to incite, instigate, aid, abet or procure another strike; or 1
(x) to help employees in the employment of another employer to 2
compel or induce the employer to agree to employment 3
conditions or to employ, or cease to employ, a person or 4
class of person or to comply with demands made by any 5
employees; and 6
(b) includes conduct capable of constituting a strike even though the 7
conduct relates to part only of the functions the employees must 8
perform in their employment; but 9
(c) does not include action by an employee if-- 10
(i) the action was based on a reasonable concern by the 11
employee about an imminent risk to his or her health or 12
safety; and 13
(ii) the employee did not unreasonably contravene a direction of 14
his or her employer to perform other available work 15
(whether at the same or another workplace) that was safe and 16
appropriate for the employee to perform. 17
"take" a statutory declaration, for chapter 7, part 6, see section 331. 18
"termination agreement", for chapter 2, part 2, see section 68. 19
"Termination of Employment Convention" means the Termination of 20
Employment Convention 1982 (the English text of which is in 21
schedule 3). 22
"termination notice", for chapter 2, part 2, see section 68. 23
"trainee" see Vocational Education, Training and Employment Act 1991, 24
section 4. 25
"transfer" of a calling includes the transmission, assurance, conveyance, 26
assignment and succession of the calling (either by operation of law or 27
by agreement and either before or after the commencement of this 28
Act). 29
"wage rate" includes pay rate and prices for work. 30
399
Workplace Relations
SCHEDULE 5 (continued)
"wages"-- 1
(a) means an amount payable to an employee for-- 2
(i) work performed, or to be performed, by the employee; or 3
(ii) a public holiday; or 4
(iii) leave the employee is entitled to; or 5
(iv) termination of employment; and 6
(b) includes-- 7
(i) an amount payable from wages for the employee, with the 8
employee's written consent; and 9
(ii) a salary. 10
"working day", for chapter 2, part 2, see section 16. 11
"young employee" means a person under 21 years engaged in a calling 12
(other than an apprentice or a person subject to the Vocational 13
Education, Training and Employment Act 1991) who receives a lower 14
wage rate than that fixed by an industrial instrument for employees 15
21 years or over in the calling. 16
17
© State of Queensland 1996
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