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PARLIAMENT OF VICTORIA
Federal Awards (Uniform System) Act 2003
Act No.
TABLE OF PROVISIONS
Clause Page
PART 1--PRELIMINARY 1
1. Purposes 1
2. Commencement 2
3. Definitions 2
4. What is an industry? 5
5. Act binds the Crown 5
PART 2--COMMON RULE ORDERS 6
6. What is a common rule order? 6
7. Effect of common rule order 6
8. Application for common rule order 7
9. Procedure on application for common rule order 8
10. Restrictions on discretion of Tribunal 8
11. Requirement on Tribunal to specify scope of order 10
12. Variation of common rule orders 10
13. Revocation of common rule orders 12
PART 3--COMPLIANCE 13
Division 1--Information Services Officers 13
14. What are the functions of information services officers? 13
15. Appointment of information services officers 13
16. Identity cards 14
17. Police to assist information services officers 14
18. When may powers be exercised? 14
19. Power of entry 15
20. Powers on entry 17
21. Power to require production of documents 17
22. Retention of documents 18
23. Search warrant 18
24. Announcement before entry 19
25. Copy of warrant to be given to occupier 20
26. Confidentiality 20
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Clause Page
Division 2--Entry and Inspection of Premises etc. by Registered
Organisations 21
27. Definitions and purpose of Division 21
28. Investigating suspected contraventions of Act 22
29. Discussions with employees 24
30. Conduct not authorised under sections 28 and 29 24
31. Issue of permits 25
32. Revocation of permits 26
33. Conduct attracting civil penalties 27
34. Civil penalties 27
35. Application and enforcement of civil penalties 28
Division 3--Victimisation 28
36. Prohibition of victimisation 28
Division 4--Other Offences 29
37. Failing to produce documents, hindering information services
officers and giving them false information 29
38. Protection against self-incrimination 29
39. Impersonation of information services officer 30
Division 5--Prosecutions, Evidence and Recovery of Money 30
40. Proceedings for offences to be brought in Industrial Division of
the Magistrates' Court 30
41. Who can prosecute under this Act? 30
42. Judicial notice of signatures 31
43. Conduct of agents imputed to corporations 32
44. Reverse onus of proof in certain cases 32
45. Recovery of money owed 32
46. Court may order payment of arrears on finding of guilt 33
47. Representation in Magistrates' Court proceedings 34
48. Proceedings by and against unincorporated clubs 35
PART 4--GENERAL 36
49. Regulations 36
PART 5--AMENDMENT OF COMMONWEALTH POWERS
(INDUSTRIAL RELATIONS) ACT 1996 37
50. Definition 37
51. Common rules 37
52. New section 4A inserted 37
4A. Further reference--common rules 37
53. Matters excluded from a reference 38
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Clause Page
PART 6--AMENDMENT OF VICTORIAN CIVIL AND
ADMINISTRATIVE TRIBUNAL ACT 1998 39
54. Amendment of Schedule 1 39
ENDNOTES 41
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PARLIAMENT OF VICTORIA
Initiated in Assembly 26 February 2003
A BILL
to amend the Commonwealth Powers (Industrial Relations) Act
1996 to refer to the Parliament of the Commonwealth a further matter
relating to industrial relations, to empower the Victorian Civil and
Administrative Tribunal to make orders applying federal award
conditions as common rules in Victoria and for this purpose to amend
the Victorian Civil and Administrative Tribunal Act 1998 and for
other purposes.
Federal Awards (Uniform System) Act
2003
The Parliament of Victoria enacts as follows:
PART 1--PRELIMINARY
1. Purposes
The purposes of this Act are--
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Federal Awards (Uniform System) Act 2003
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Part 1--Preliminary
s. 2
(a) to refer to the Parliament of the
Commonwealth a further matter relating to
industrial relations; and
(b) to empower the Victorian Civil and
5 Administrative Tribunal to make orders
applying federal award conditions as
common rules in Victoria.
2. Commencement
(1) This Act comes into operation on a day or days to
10 be proclaimed.
(2) A proclamation must not be made under sub-
section (1) bringing section 52 into operation
unless the proclamation includes a statement that
the Governor in Council is satisfied that a Bill has
15 been introduced into the Senate or the House of
Representatives of the Parliament of the
Commonwealth containing provisions about the
matter to be referred to that Parliament by
proposed section 4A(1) of the Commonwealth
20 Powers (Industrial Relations) Act 1996.
(3) A proclamation must not be made under sub-
section (1) bringing Part 2, 3, 4 or 6 into operation
if section 52 has been proclaimed to come into
operation.
25 3. Definitions
In this Act--
"allowable award matters" has the same
meaning as in the Commonwealth Act, as
affected by item 50 of Schedule 5 to the
30 Workplace Relations and Other Legislation
Amendment Act 1996 of the
Commonwealth;
"award" means award made under the
Commonwealth Act;
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"common rule order" means an order made
under Part 2;
"Commonwealth Act" means the Workplace
Relations Act 1996 of the Commonwealth;
5 "contract" includes--
(a) an arrangement or understanding; and
(b) a collateral contract relating to a
contract;
"Department" means Department of Innovation,
10 Industry and Regional Development;
"employee" includes any person whose usual
occupation is that of employee, but does not
include a person who is undertaking a
vocational placement;
15 "employer" includes--
(a) a person who is usually an employer;
and
(b) an unincorporated club;
"Federal Commission" means the Australian
20 Industrial Relations Commission;
"industry" has the meaning given by section 4;
"industrial instrument" includes an award or
agreement made under the Commonwealth
Act;
25 "information services officer" means a person
appointed under section 15;
"interested organisation" means an organisation
that is not a registered organisation but that
is representative of a significant number of
30 employers in an industry or a range of
industries;
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"peak body" means a body that is representative
of a significant number of organisations
representing employers or employees in an
industry or a range of industries;
5 "registered organisation" means an organisation
registered under the Commonwealth Act;
"relevant industrial legislation" means--
(a) this Act;
(b) the Long Service Leave Act 1992;
10 (c) the Public Holidays Act 1993;
(d) regulations and other subordinate
instruments (including common rule
orders) made under an Act referred to
in paragraph (a), (b) or (c);
15 "rules" means rules made by the Rules
Committee under section 157 of the
Victorian Civil and Administrative
Tribunal Act 1998;
"Secretary" means Secretary to the Department;
20 "subordinate instrument" has the meaning
given by section 3 of the Interpretation of
Legislation Act 1984;
"Tribunal" means Victorian Civil and
Administrative Tribunal established by the
25 Victorian Civil and Administrative
Tribunal Act 1998;
"vocational placement" means a placement that
is--
(a) undertaken with an employer for which
30 a person is not entitled to be paid any
remuneration; and
(b) undertaken as a requirement of an
education or training course; and
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(c) authorised under a law or an
administrative arrangement of Victoria,
the Commonwealth, another State or a
Territory.
5 4. What is an industry?
In this Act, "industry" includes--
(a) any trade, manufacture, business, project or
occupation in which persons work; and
(b) a part of an industry or a number of
10 industries; and
(c) a class of employment within an industry or
a number of industries.
5. Act binds the Crown
(1) This Act binds the Crown, not only in right of
15 Victoria, but also, so far as the legislative power
of Parliament permits, the Crown in all its other
capacities.
(2) Nothing in this Act makes the Crown in any of its
capacities liable to be prosecuted for an offence.
__________________
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Part 2--Common Rule Orders
s. 6
PART 2--COMMON RULE ORDERS
6. What is a common rule order?
(1) A common rule order is an order made by the
Tribunal declaring that a specified term or part of
5 a term of a specified award is, subject to any
conditions, exceptions and limitations that are
specified in the order, a common rule for a
specified industry.
(2) A common rule has the effect of binding all
10 employers and employees in the industry
concerned so that their employment relationship is
governed by the provisions of the common rule.
(3) A common rule order is of no effect to the extent
that it relates to a term or part of a term of an
15 award that provides for matters other than
allowable award matters.
Note: As a result of section 109 of the Commonwealth
Constitution, a common rule order is also of no effect
to the extent that it is inconsistent with the
20 Workplace Relations Act 1996 of the
Commonwealth or with any award or agreement
made under that Act.
(4) A condition, exception or limitation specified in a
common rule order may apply to all employers
25 bound by the order or to a specified employer or
class of employer.
7. Effect of common rule order
(1) A provision of a contract of employment is of no
effect to the extent that it provides a condition of
30 employment that is less favourable to an employee
than that applicable under a relevant common rule
order.
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(2) An employer must not--
(a) enter into, or purport to enter into, a contract
of employment that provides a condition of
employment that is less favourable to the
5 employee than that applicable under a
relevant common rule order; or
(b) provide a condition of employment to an
employee that is less favourable to the
employee than that applicable under a
10 relevant common rule order; or
(c) otherwise contravene a term of a relevant
common rule order that applies to the
employer.
Penalty: 120 penalty units.
15 (3) An employer who becomes bound by a common
rule order is entitled to set off an amount that is
payable to an employee under the order against
any amount payable to the employee under his or
her contract of employment (as that contract
20 existed before the coming into force of the order)
that is at least equivalent to the amount that is
required to be paid to the employee under the
order.
(4) Sub-sections (1) and (2) have effect subject to
25 sub-section (3).
8. Application for common rule order
The Tribunal may make a common rule order on
an application made by--
(a) the Minister; or
30 (b) a registered organisation that is
representative of employees or employers in
the relevant industry; or
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(c) a peak body that is representative of
employers or employees in the relevant
industry.
9. Procedure on application for common rule order
5 (1) An applicant for a common rule order must
publish, as required by the rules, a notice--
(a) specifying the industry in relation to which
the common rule order is sought; and
(b) specifying the relevant term or part of the
10 term of the award; and
(c) inviting any registered organisation,
interested organisation or person interested
and wanting to be heard or make a written
submission to appear before the Tribunal or
15 make a written submission to the Tribunal as
specified in the notice.
(2) Before making a common rule order, the Tribunal
must hear all organisations and persons appearing.
10. Restrictions on discretion of Tribunal
20 (1) The Tribunal must make a common rule order in
relation to an industry on an application under
section 8 if satisfied that--
(a) work is being performed in Victoria in that
industry; and
25 (b) there is an award in force that is binding on
employers in that industry; and
(c) an employer would be required to observe
the terms of the award in respect of an
employee performing work referred to in
30 paragraph (a) if the employer were bound by
the award.
(2) If more than one award covers a particular kind of
work, the Tribunal, on making a common rule
order applying to that work, must ensure that the
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award a term, or part of a term, of which is to be
declared a common rule--
(a) is the most relevant to the work; and
(b) most comprehensively and appropriately
5 deals with employment conditions; and
(c) is otherwise the most appropriate award for
the purpose.
(3) The Tribunal must not make a common rule order
applying to a particular kind of work if a common
10 rule order already applies to that work and deals
with the term, or the part of the term, which it is
sought to have declared a common rule.
(4) The Tribunal may impose a condition, exception
or limitation on a term, or a part of a term, of an
15 award specified in a common rule order only if
satisfied that it is necessary to do so on one or
more of the following grounds--
(a) the term, or part, is not relevant to the
relationship between employers and
20 employees who are to be bound by the order;
(b) the term, or part, confers a power or imposes
a duty on the Federal Commission;
(c) the term, or part, imposes a financial
obligation on an employer who is to be
25 bound by the order and the employer does
not have the capacity to meet that obligation;
(d) the condition, exception or limitation is
necessary to enable the practical operation of
the order.
30 (5) In determining whether the ground referred to in
sub-section (4)(c) is made out, the Tribunal must
have regard to any statement of principles by, and
any relevant decision of, the Federal Commission
with respect to economic incapacity.
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11. Requirement on Tribunal to specify scope of order
(1) The Tribunal must ensure that the scope and
application of a common rule order is specified in
the order, for example, the class of employee to
5 which it applies. Employees may be classified,
for this purpose, according to their category of
employment or the nature of the work performed
by them.
(2) Despite anything to the contrary in section 118(1)
10 of the Victorian Civil and Administrative
Tribunal Act 1998, if the Tribunal is satisfied
that there are exceptional circumstances, it may
provide that a common rule order comes into
effect on a day earlier than the day on which the
15 order is made.
(3) Despite a common rule order coming into effect
on a day earlier than it is made, a person cannot be
charged with an offence against section 7(2), or
any other offence in relation to contravention of
20 the common rule order, in respect of conduct
occurring before the day on which the order is
made.
12. Variation of common rule orders
(1) Subject to this section, if--
25 (a) a term, or part of a term, of an award is
declared to be a common rule by a common
rule order; and
(b) subsequent to the making of the common
rule order, that term, or that part of the term,
30 is varied by the Federal Commission--
the variation has effect, by force of this sub-
section, as a common rule and the common rule
order is varied accordingly with effect from the
end of 28 days after the date of effect of the
35 variation of the award.
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(2) The Secretary must cause a notice to be published
in the Government Gazette and a newspaper
generally circulating in Victoria--
(a) giving details of the variation or proposed
5 variation by the Federal Commission of a
term, or part of a term, referred to in sub-
section (1); and
(b) informing employers bound by the common
rule order concerned of their right to apply to
10 the Tribunal under sub-section (3).
(3) An employer bound by the common rule order
may apply to the Tribunal, within the period
specified in the rules, for an order under sub-
section (4) on the ground that--
15 (a) the variation imposes a financial obligation
on the employer and the employer does not
have the capacity to meet that obligation; or
(b) the variation alters the effect of a condition,
exception or limitation specified in the
20 common rule order that is applicable to the
employer.
(4) If an application is made in accordance with sub-
section (3)--
(a) the Tribunal may order that--
25 (i) the variation is not binding on the
applicant; or
(ii) the condition, exception or limitation is
amended as set out in the order as it has
effect in relation to the applicant; and
30 (b) the variation is not enforceable against the
applicant before the application is finally
determined by the Tribunal.
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(5) In determining whether the ground referred to in
sub-section (3)(a) is made out, the Tribunal must
have regard to any statement of principles by, and
any relevant decision of, the Federal Commission
5 with respect to economic incapacity.
13. Revocation of common rule orders
(1) If--
(a) the terms of an award are declared to be a
common rule by a common rule order; and
10 (b) subsequent to the making of the common
rule order the Federal Commission sets aside
the award--
the Tribunal, on application by a person or body
referred to in section 8, may, by order, revoke the
15 common rule order.
(2) If--
(a) one or more terms of an award are declared
to be a common rule by a common rule
order; and
20 (b) subsequent to the making of the common
rule order the Federal Commission sets aside
those terms--
the Tribunal, on application by a person or body
referred to in section 8, may, by order, omit those
25 terms from the common rule order.
__________________
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Act No.
Part 3--Compliance
s. 14
PART 3--COMPLIANCE
Division 1--Information Services Officers
14. What are the functions of information services
officers?
5 (1) The primary function of information services
officers is to provide information about the
operation of relevant industrial legislation to
employers, employees, registered organisations,
interested organisations, peak bodies and other
10 interested members of the community.
(2) Information services officers also have the
function of ensuring compliance with relevant
industrial legislation, and any other functions
conferred by or under this or any other Act.
15 15. Appointment of information services officers
The Secretary may, by instrument, appoint as an
information services officer for the purposes of
this Act a person employed under Part 3 of the
Public Sector Management and Employment
20 Act 1998 who, in the Secretary's opinion--
(a) is competent to perform the functions and
exercise the powers of an information
services officer; and
(b) is of good repute, having regard to character,
25 honesty and integrity; and
(c) agrees in writing to perform the functions of
an information services officer in accordance
with the criteria established from time to
time by the Secretary.
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16. Identity cards
(1) Each information services officer must be issued
with an identity card in the form approved by the
Secretary.
5 (2) The identity card must bear a photograph and the
signature of the information services officer.
(3) An information services officer must produce his
or her identity card for inspection--
(a) before exercising a power under this Part
10 other than a requirement made by post, fax,
e-mail or other electronic communication;
and
(b) at any time during the exercise of a power
under this Part, if asked to do so.
15 Penalty: 10 penalty units.
17. Police to assist information services officers
(1) An information services officer may request the
assistance of a member of the police force.
(2) A member of the police force may assist an
20 information services officer to take any action
authorised by this Part.
18. When may powers be exercised?
(1) An information services officer may exercise
powers under this Part only to the extent that it is
25 reasonably necessary to do so for the purpose of
determining compliance with relevant industrial
legislation.
(2) In exercising powers under this Part, an
information services officer must--
30 (a) cause as little inconvenience as possible; and
(b) not remain on premises any longer than is
reasonably necessary.
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19. Power of entry
(1) At any time during ordinary working hours, an
information services officer may without force
enter--
5 (a) any premises at which the officer has
reasonable grounds for believing that work
to which a common rule order applies is
being or has been performed; or
(b) any premises, being a place of business at
10 which the officer has reasonable grounds for
believing that there are documents relevant
to the purpose of determining compliance
with relevant industrial legislation.
(2) If an owner or occupier of premises is present
15 when an information services officer exercises a
power of entry under this section, the officer
must--
(a) produce his or her identity card for
inspection; and
20 (b) inform the owner or occupier of the purpose
of the entry.
(3) If an information services officer exercises a
power of entry under this section without the
owner or occupier being present, the officer
25 must--
(a) on leaving the premises, leave a notice
setting out--
(i) the time of entry; and
(ii) the purpose of entry; and
30 (iii) a description of all things done while
on the premises; and
(iv) the time of departure; and
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(v) the procedure for contacting the officer
for further details of the entry; and
(b) post a copy of the notice--
(i) to the owner of the premises, if the
5 identity and address of the owner are
known to the officer; and
(ii) to the occupier of the premises, if the
identity and address of the occupier are
known to the officer.
10 (4) An information services officer does not have
authority to enter any part of premises used for
residential purposes, unless--
(a) the officer has, before the entry and in
addition to complying with sub-section (2),
15 informed the occupier that he or she may
refuse to consent to the entry; and
(b) the occupier has consented to the entry.
(5) If an occupier consents to an entry under sub-
section (4), the information services officer who
20 requested consent must before entering the
premises ask the occupier to sign an
acknowledgment in the prescribed form stating--
(a) that the occupier has been informed of the
purpose of the entry; and
25 (b) that the occupier has been informed that he
or she may refuse to consent to the entry; and
(c) that the occupier has consented to the entry;
and
(d) the date and time that the occupier
30 consented.
(6) An occupier who signs an acknowledgment must
be given a copy of the signed acknowledgment
before the information services officer leaves the
premises.
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(7) If, in any proceeding, an acknowledgment is not
produced to the court or a tribunal, it must be
presumed, until the contrary is proved, that the
occupier did not consent to the entry.
5 (8) Sub-section (4) does not apply to any part of
premises used both for residential purposes and
for work to which a common rule order applies.
However, an information services officer may
only enter such premises under this section if an
10 owner or occupier is present.
20. Powers on entry
On exercising a power of entry under section 19,
an information services officer may--
(a) inspect any work, material, machinery,
15 appliance, article, facility or other thing;
(b) take samples of any goods or substances in
accordance with the regulations;
(c) interview any employee;
(d) require a person having the custody of, or
20 access to, a document relevant to the purpose
of determining compliance with relevant
industrial legislation to produce the
document to the information services officer
within a reasonable period specified by the
25 information services officer;
(e) inspect, and make copies of or take extracts
from, a document produced to him or her.
21. Power to require production of documents
(1) An information services officer, by written notice,
30 may require a person to produce to him or her,
within a reasonable period specified in the notice,
a document relevant to the purpose of determining
compliance with relevant industrial legislation.
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(2) An information services officer may inspect, and
make copies of or take extracts from, a document
produced to him or her under sub-section (1).
22. Retention of documents
5 (1) An information services officer may retain a
document produced to him or her for the period
necessary for the purpose of performing functions
and exercising powers as an information services
officer.
10 (2) During the period that the information services
officer retains a document, he or she must permit
the person otherwise entitled to its possession to
inspect it and make copies of or take extracts from
it.
15 23. Search warrant
(1) An information services officer may apply to a
magistrate for the issue of a search warrant in
relation to particular premises if the information
services officer believes on reasonable grounds
20 that there is, or may be within the next 72 hours,
on the premises a particular thing that may be
evidence of the commission of an offence against
this Act or the regulations.
(2) A magistrate may issue a search warrant under
25 this section if the magistrate is satisfied by
evidence on oath, whether oral or by affidavit, that
there are reasonable grounds for suspecting that
there is, or may be within 72 hours, on premises a
particular thing that may be evidence of the
30 commission of an offence against this Act or the
regulations.
(3) The search warrant may authorise an information
services officer named in the warrant and any
assistants the information services officer
35 considers necessary--
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(a) to enter the premises, or part of the premises,
named or described in the warrant; and
(b) to search for the thing named or described in
the warrant.
5 (4) In addition to any other requirement, a search
warrant issued under this section must state--
(a) the offence suspected; and
(b) the premises to be searched; and
(c) a description of the thing for which the
10 search is to be made; and
(d) any conditions to which the warrant is
subject; and
(e) whether entry is authorised to be made at any
time or during stated hours; and
15 (f) a day, not later than 7 days after the issue of
the warrant, on which the warrant ceases to
have effect.
(5) A search warrant must be issued in accordance
with the Magistrates' Court Act 1989 and in the
20 form prescribed under that Act.
(6) The rules to be observed with respect to search
warrants mentioned in the Magistrates' Court
Act 1989 extend and apply to warrants under this
section.
25 24. Announcement before entry
(1) Before executing a search warrant, the
information services officer named in the warrant
or a person assisting him or her must--
(a) announce that he or she is authorised by the
30 warrant to enter the premises; and
(b) give any person at the premises an
opportunity to allow entry to the premises.
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s. 25
(2) The information services officer or a person
assisting him or her need not comply with sub-
section (1) if the officer or person believes on
reasonable grounds that immediate entry to the
5 premises is required to ensure--
(a) the safety of any person; or
(b) that the effective execution of the warrant is
not frustrated.
25. Copy of warrant to be given to occupier
10 If the occupier or another person who apparently
represents the occupier is present at the premises
when a search warrant is being executed, the
information services officer must--
(a) identify himself or herself to that person by
15 producing his or her identity card for
inspection by that person; and
(b) give to that person a copy of the execution
copy of the warrant.
26. Confidentiality
20 (1) An information services officer must not, except
to the extent necessary to carry out his or her
functions, give to any other person, whether
directly or indirectly, any information acquired by
the officer in carrying out those functions.
25 Penalty: 60 penalty units.
(2) Sub-section (1) does not apply to the giving of
information--
(a) to a court or tribunal in the course of legal
proceedings; or
30 (b) pursuant to an order of a court or tribunal; or
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(c) to the extent reasonably required to enable
the investigation or the enforcement of a law
of Victoria or of any other State or Territory
or of the Commonwealth; or
5 (d) with the written authority of the Secretary; or
(e) with the written authority of the person to
whom the information relates.
Division 2--Entry and Inspection of Premises etc. by
Registered Organisations
10 27. Definitions and purpose of Division
(1) In this Division--
"ancillary document" has the meaning given in
section 285B(5) of the Commonwealth Act;
"AWA" has the same meaning as in the
15 Commonwealth Act;
"Court" means Magistrates' Court sitting as the
Industrial Division;
"officer" of a registered organisation includes
any person who is concerned in, or takes part
20 in, the management of the organisation;
"permit" means permit issued under section 31;
"relevant organisation" in respect of a person
who holds a permit, means the registered
organisation of which he or she is an officer
25 or employee;
"specified award" means an award, a specified
term or part of a term of which has been
declared to be a common rule order.
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(2) The purpose of this Division is to provide for
workplace entry, inspection and discussions by
authorised representatives of registered industrial
organisations, similar to the provisions of
5 Division 11A of Part IX of the Commonwealth
Act (as in force on 27 February 2003).
28. Investigating suspected contraventions of Act
(1) This section applies if a person who holds a
permit suspects that a contravention of this Act
10 has occurred, or is occurring.
(2) For the purpose of investigating the suspected
contravention, the person may enter, during
working hours, any premises--
(a) occupied by an employer who is bound by a
15 common rule order that is based on a
specified award that binds the relevant
organisation; and
(b) where employees work who are members of
the relevant organisation.
20 (3) After entering the premises, the person may, for
the purpose of investigating the suspected
contravention--
(a) require the employer of the employees to
allow the person, during working hours, to
25 inspect and, if the person wishes, to make
copies of any of the following that are kept
by the employer on the premises and are
relevant to the suspected contravention--
(i) any time sheets; or
30 (ii) any pay sheets; or
(iii) any other documents, other than an
AWA, an ancillary document or a
document that shows some or all of the
content of an AWA or of an ancillary
35 document; and
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(b) during working hours, inspect or view any
work, material, machinery, or appliance, that
is relevant to the suspected contravention;
and
5 (c) during working hours, interview any
employees who are--
(i) members of the relevant organisation;
or
(ii) eligible to become members of the
10 relevant organisation--
about the suspected contravention.
(4) For the purpose of investigating the suspected
contravention, the person may (regardless of
whether the person exercises powers under sub-
15 section (2) or (3)) require the employer of the
employees mentioned in sub-section (2)--
(a) to produce documents of the kind mentioned
in any of sub-paragraphs (i), (ii) or (iii) of
sub-section (3)(a) at the premises at which
20 the employees work or at some other agreed
place; and
(b) if the documents are to be produced at the
premises at which the employees work--to
allow the person, during working hours, to
25 enter the premises and--
(i) inspect the documents; and
(ii) if the person wishes to do so--make
copies of the documents; and
(c) if the documents are to be produced at some
30 other place--to allow the person, at an
agreed time, to inspect the documents at that
place and, if the person wishes to do so, to
make copies of them.
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29. Discussions with employees
(1) Subject to sub-sections (2) and (3), a person who
holds a permit may enter premises in which--
(a) work is being carried on to which a specified
5 award applies that is binding on the relevant
organisation; and
(b) employees who are, or are eligible to
become, members of the relevant
organisation work--
10 for the purpose of holding discussions with any of
those employees who wish to participate in those
discussions.
(2) The person may only enter the premises during
working hours and may only hold the discussions
15 during the employees' meal-time or other breaks.
(3) The person may not enter premises if all of the
following conditions are satisfied--
(a) no more than 20 employees are employed to
work at the premises; and
20 (b) all the employees at the premises are
employed by an employer who is the holder
of a conscientious objection certificate under
section 267 of the Commonwealth Act that
has been endorsed as provided for in
25 section 285C(4) of that Act; and
(c) none of the employees employed at the
premises is a member of a registered
organisation.
30. Conduct not authorised under sections 28 and 29
30 (1) If--
(a) a person proposes to enter, or is on, premises
in accordance with section 28 or 29; and
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(b) the occupier of the premises requires the
person to show his or her permit--
the person is not entitled under that section to
enter or remain on the premises unless he or she
5 shows the occupier the permit.
(2) A person is only entitled to enter premises, and
exercise powers, under section 28 or 29, if the
person has given the occupier of the premises at
least 24 hours notice of the person's intention to
10 do so.
(3) A person is not, in exercising any powers under
section 28 or 29, entitled to enter any part of
premises used for residential purposes, except
with the permission of the occupier.
15 31. Issue of permits
(1) The Court may, on application by a registered
organisation, issue a permit for the purposes of
this Division to an officer or employee of the
organisation.
20 (2) The regulations may prescribe the form and
content of the permit.
(3) Unless revoked earlier, a permit remains in force
until the earlier of--
(a) 3 years after the day on which it was issued;
25 (b) the time at which the person to whom it was
issued ceases to be an officer or employee of
the relevant organisation.
(4) If one or more permits issued to a person under
this section have been revoked, the Court must
30 take that fact into account when deciding whether
to issue a further permit under this section to the
person.
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32. Revocation of permits
(1) An application for revocation of a permit may be
made to the Court by--
(a) an employer claiming that--
5 (i) the employer, or an employee of the
employer, has been hindered or
obstructed by the holder of the permit;
or
(ii) the holder of the permit has otherwise
10 acted in an improper manner; or
(b) a registered organisation of employers,
claiming that--
(i) one of its members, or an employee of
one of its members, has been hindered
15 or obstructed by the holder of the
permit; or
(ii) the holder of the permit has otherwise
acted in an improper manner; or
(c) an information services officer claiming
20 that--
(i) an employer, or an employee of an
employer, has been hindered or
obstructed by the holder of the permit;
or
25 (ii) the holder of the permit has otherwise
acted in an improper manner.
(2) An application for the revocation of a permit must
set out the grounds on which the application is
made.
30 (3) The Court may, on an application under sub-
section (1), revoke the permit if satisfied that the
grounds for the application have been made out.
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33. Conduct attracting civil penalties
(1) A person exercising powers under section 28
or 29 must not deliberately hinder or obstruct an
employer or employees.
5 (2) The occupier of premises must not refuse or
unduly delay entry to the premises by a person
entitled to enter the premises under section 28
or 29.
(3) An employer must not refuse or fail to comply
10 with a requirement under section 28(3)(a) or (4).
(4) A person must not otherwise intentionally hinder
or obstruct a person exercising powers under
section 28 or 29.
(5) For the avoidance of doubt, a failure to agree on a
15 place or a time as mentioned in section 28(4)(a)
or (c) does not constitute hindering or obstructing
a person exercising powers under section 28(4).
(6) A person to whom a permit has been issued must,
within 14 days after the expiry or revocation of
20 the permit, return the permit to the Court.
34. Civil penalties
(1) If a person contravenes a penalty provision, the
contravention is not an offence. However, a court
may make an order imposing a penalty on a
25 person who contravenes a penalty provision.
(2) The penalty cannot be more than $10 000 for a
body corporate or $2000 in other cases.
(3) An application for an order under sub-section (1)
may be made by any person.
30 (4) A court may grant an injunction requiring a
person not to contravene, or to cease
contravening, a penalty provision.
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(5) In this section--
"court" means Supreme Court, County Court or
Magistrates' Court;
"penalty provision" means section 33(1), (2),
5 (3), (4) or (6).
35. Application and enforcement of civil penalties
(1) A court that imposes a penalty under section 34(1)
may order that the penalty, or a part of the
penalty, be paid--
10 (a) into the Consolidated Fund; or
(b) to a particular registered organisation or
other person.
(2) An order imposing a penalty under section 34(1)
is taken, for the purposes of enforcement, to be an
15 order made by the court in a civil proceeding.
Division 3--Victimisation
36. Prohibition of victimisation
(1) An employer, a registered organisation or an
interested organisation must not victimise an
20 employee.
Penalty: 120 penalty units.
(2) An employer or an organisation victimises an
employee if the employer or organisation subjects
or threatens to subject the employee to any
25 detriment because the employee, or a person
associated with the employee, has--
(a) claimed a benefit or exercised a power or
right that he or she is entitled to claim or
exercise under this Act or a common rule
30 order; or
(b) brought, or otherwise participated in, a
proceeding under this Act; or
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(c) informed any person of an alleged
contravention of this Act, the regulations or a
common rule order by any person.
(3) In this section--
5 "employee" includes a prospective employee;
"employer" includes a prospective employer.
Division 4--Other Offences
37. Failing to produce documents, hindering information
services officers and giving them false information
10 (1) A person must not, without reasonable excuse--
(a) fail to comply with a notice to produce a
document given under section 20 or 21; or
(b) otherwise obstruct or hinder an information
services officer performing functions or
15 exercising powers under this Part.
Penalty: 60 penalty units.
(2) A person must not--
(a) give information to an information services
officer that the person knows to be false or
20 misleading in a material particular; or
(b) produce a document to an information
services officer that the person knows to be
false or misleading in a material particular
without indicating the respect in which it is
25 false or misleading and, if practicable,
providing correct information.
Penalty: 60 penalty units.
38. Protection against self-incrimination
(1) It is a reasonable excuse for a natural person to
30 refuse or fail to give information, produce a
document or do any other thing that the person is
required to do by or under this Act if the giving of
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the information, the production of the document
or the doing of the other thing would tend to
incriminate the person.
(2) Despite sub-section (1), it is not a reasonable
5 excuse for a natural person to refuse or fail to
produce a record or other document that the
person is required to keep by this Act or the
regulations, if the production of the record or
other document would tend to incriminate the
10 person.
(3) Nothing in this section affects the application of
section 105 of the Victorian Civil and
Administrative Tribunal Act 1998.
39. Impersonation of information services officer
15 A person must not impersonate an information
services officer.
Penalty: 60 penalty units.
Division 5--Prosecutions, Evidence and Recovery of Money
40. Proceedings for offences to be brought in Industrial
20 Division of the Magistrates' Court
If a person is charged with an offence against this
Act or the regulations, the charge must be heard,
and all penalties recovered, before the Magistrates'
Court sitting as the Industrial Division.
25 41. Who can prosecute under this Act?
(1) A prosecution for an offence against this Act or
the regulations may only be brought by a person
authorised by--
(a) the Minister; or
30 (b) the Secretary, if the Minister has authorised
the Secretary to give such an authorisation;
or
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(c) a person employed in the Department under
Part 3 of the Public Sector Management
and Employment Act 1998 who the
Minister has authorised to give such an
5 authorisation.
(2) Any authorisation--
(a) must be in writing; and
(b) may be given generally, or only in relation to
a particular case or cases, or a particular
10 class of case or cases; and
(c) may be revoked by the person who gave it at
any time by notice in writing.
(3) The revocation of an authorisation does not affect
any proceedings started by a person before that
15 person's authorisation was revoked unless the
notice of revocation states otherwise.
(4) In a prosecution for an offence against this Act or
the regulations, the Industrial Division of the
Magistrates' Court must presume, in the absence
20 of evidence to the contrary, that the prosecutor is
authorised to bring the prosecution.
(5) A prosecution may only be conducted by--
(a) the person authorised to bring the
prosecution; or
25 (b) a legal practitioner (within the meaning of
the Legal Practice Act 1996) briefed by the
person authorised to bring the prosecution.
42. Judicial notice of signatures
All courts must take judicial notice of--
30 (a) the signature of a person who is, or was at
the time the signature purports to have been
made, the Minister, the Secretary or an
employee to whom section 41(1)(c) applies;
and
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(b) the fact that a person listed in paragraph (a)
held the position he or she purported to hold
at the time the signature purports to have
been made.
5 43. Conduct of agents imputed to corporations
For the purposes of this Act, any conduct engaged
in on behalf of a corporation--
(a) by a director, employee or agent of the
corporation acting within the scope of the
10 person's actual or apparent authority; or
(b) by any other person at the direction, or with
the consent (express or implied) of such a
director, employee or agent--
is also conduct engaged in by the corporation.
15 44. Reverse onus of proof in certain cases
In a prosecution against an employer for failing to
pay an employee an amount owed to the employee
under a contract of employment if--
(a) the employee is dead; and
20 (b) the employer alleges that the period shown in
the charge as being the period of continuous
employment of the employee with the
employer is wrong--
the employer bears the onus of proving the
25 allegation.
45. Recovery of money owed
(1) An employee who is owed any money by an
employer under this Act or any other Act, or
under any contract of employment or common
30 rule order, may take proceedings in the Industrial
Division of the Magistrates' Court to recover the
money owing. The debt must arise out of the
employment relationship.
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(2) The proceedings must be started within 6 years
after the employee's entitlement to the money
arising.
(3) Before proceedings may be started under this
5 section, the employer must be given a written
demand for the money owed.
(4) If the Court is satisfied that the employer--
(a) had reasonable notice of the employee's
claim; and
10 (b) had no reasonable grounds on which to
dispute the claim; and
(c) in the circumstances should have paid the
claim without the need for proceedings being
taken to establish the validity of the claim--
15 the Court may order the employer to pay interest
to the employee on top of any other amount to
which the employee is entitled.
(5) The interest must not be greater than the rate fixed
under section 2 of the Penalty Interest Rates Act
20 1983 that applies at the time the Court makes the
order.
(6) If a claim is made under this section by an
employee's personal representative, sub-sections
(4) and (5) apply despite anything to the contrary
25 in section 29 of the Administration and Probate
Act 1958.
46. Court may order payment of arrears on finding of
guilt
(1) If the Industrial Division of the Magistrates' Court
30 finds an employer guilty of an offence relating to
the underpayment of an employee, the Court may
order the employer to pay the employee any
amount that the employee was underpaid and that
is still owed to the employee, in addition to
35 imposing a penalty for the offence.
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(2) However, under this section the Court may only
order the employer to pay an amount in respect of
a period of up to 6 years.
(3) Sub-sections (4), (5) and (6) of section 45 apply to
5 this section.
(4) An order under this section may be enforced as if
it were an order made by the Court in a civil
proceeding. However, if any amount remains to be
paid after all reasonable means of civil
10 enforcement have been tried, the order may be
enforced as if it were a fine imposed by the Court.
(5) Nothing in this section limits an employee's rights
under section 45, and nothing in that section limits
the power of the Court under this section.
15 47. Representation in Magistrates' Court proceedings
(1) An employee may be represented in any
proceeding referred to in section 45 or 46 by a
person who is an employee or agent of--
(a) a registered organisation of which the
20 employee is a member or eligible to become
a member; or
(b) a peak body of which an organisation
representing the employee is a member.
(2) An employer may be represented in any
25 proceeding referred to in section 45 or 46 by a
person who is an employee or agent of--
(a) a registered organisation of which the
employer is a member or eligible to become
a member; or
30 (b) an interested organisation of which the
employer is a member or eligible to become
a member; or
(c) a peak body of which an organisation
representing the employer is a member.
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48. Proceedings by and against unincorporated clubs
(1) For the purposes of this Act, the treasurer of a
club is to be taken to be the employer of a person
employed for the purposes or on behalf of the
5 club, and any proceeding that may be taken under
this Act by or against the club may be taken by or
against the treasurer on behalf of the club.
(2) The treasurer is authorised to retain out of the
funds of the club sufficient money to meet
10 payments made by the treasurer on behalf of the
club under this section.
(3) In this section--
"club" means an unincorporated club;
"treasurer" includes a person having possession
15 or control of any funds of a club.
__________________
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s. 49
PART 4--GENERAL
49. Regulations
(1) The Governor in Council may make regulations
for or with respect to--
5 (a) requiring employers to keep records in
relation to work to which a common rule
order relates;
(b) prescribing any matter or thing required or
permitted by this Act to be prescribed or
10 necessary to be prescribed to give effect to
this Act.
(2) The regulations--
(a) may be of general or limited application;
(b) may differ according to differences in time,
15 place or circumstances;
(c) may impose a penalty, not exceeding
20 penalty units, for a contravention of the
regulations.
__________________
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Act No.
Part 5--Amendment of Commonwealth Powers (Industrial Relations) Act
s. 50
1996
PART 5--AMENDMENT OF COMMONWEALTH POWERS
(INDUSTRIAL RELATIONS) ACT 1996
50. Definition
See: In section 3 of the Commonwealth Powers
Act No.
5 (Industrial Relations) Act 1996, insert the
59/1996.
LawToday: following definition--
www.dms.
dpc.vic.
' "industry" includes--
gov.au
(a) any business, trade, manufacture,
undertaking or calling of employers;
10 and
(b) any calling, service, employment,
handicraft, industrial occupation or
vocation of employees; and
(c) a branch of an industry and a group of
15 industries;'.
51. Common rules
In section 5(1) of the Commonwealth Powers
(Industrial Relations) Act 1996, paragraph (e) is
repealed.
20 52. New section 4A inserted
After section 4 of the Commonwealth Powers
(Industrial Relations) Act 1996 insert--
"4A. Further reference--common rules
(1) The matter of the making of an award or
25 order as, or declaring any term of an award
or order to be, a common rule in the State for
an industry, to the extent to which it is not
otherwise included in the legislative powers
of the Commonwealth, is referred to the
30 Parliament of the Commonwealth for a
period commencing on the day on which
section 52 of the Federal Awards (Uniform
System) Act 2003 commences and ending
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s. 53
1996
on the day fixed under sub-section (2) as the
day on which the reference of that matter
under this Act terminates but no longer.
(2) The Governor in Council, by proclamation
5 published in the Government Gazette, may
fix a day as the day on which the reference
under sub-section (1) terminates.
(3) The matter referred to the Parliament of the
Commonwealth by sub-section (1) is so
10 referred subject to the Commonwealth of
Australia Constitution Act and pursuant to
section 51(xxxvii) of that Act.".
53. Matters excluded from a reference
In section 5(1) and (2) of the Commonwealth
15 Powers (Industrial Relations) Act 1996, after
"section 4" insert "or 4A".
__________________
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Act No.
Part 6--Amendment of Victorian Civil and Administrative Tribunal Act
s. 54
1998
PART 6--AMENDMENT OF VICTORIAN CIVIL AND
ADMINISTRATIVE TRIBUNAL ACT 1998
54. Amendment of Schedule 1
See: In Schedule 1 to the Victorian Civil and
Act No.
5 Administrative Tribunal Act 1998, before Part 8
53/1998.
Reprint No. 2 insert--
as at
15 July 2001
"PART 7A--FEDERAL AWARDS (UNIFORM
and
SYSTEM) ACT 2003
amending
Act Nos
98/2000, 28A. Constitution of Tribunal
2/2001,
10 68/2001, In a proceeding under the Federal Awards (Uniform
96/2001,
System) Act 2003 the Tribunal is to be constituted
36/2002,
by--
41/2002 and
45/2002.
(a) one member who, in the opinion of the
LawToday:
President, has knowledge of, or experience in,
www.dms.
15 dpc.vic. industrial relations matters; or
gov.au
(b) if it is constituted by more than one member, at
least one member who, in the opinion of the
President, has knowledge of, or experience in,
industrial relations matters.
20 28B. Intervention by Minister
The Minister administering the Federal Awards
(Uniform System) Act 2003 may intervene in a
proceeding under that Act at any time before the
Tribunal has finished hearing it.
25 28C. Unincorporated associations can be parties
(1) Section 61(1) does not apply to a proceeding under
the Federal Awards (Uniform System) Act 2003.
(2) An unincorporated association that is a party to a
proceeding under the Federal Awards (Uniform
30 System) Act 2003 has the same right to representation
in the proceeding as a body corporate.
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Part 6--Amendment of Victorian Civil and Administrative Tribunal Act
s. 54
1998
28D. Representation
In addition to any right of representation under
section 62, a party to a proceeding under the Federal
Awards (Uniform System) Act 2003 may be
5 represented by an employee or agent of--
(a) a registered organisation or interested
organisation of which the party is a member or
eligible to become a member; or
(b) a peak body of which an organisation
10 representing the employee is a member.".
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Act No.
Endnotes
ENDNOTES
By Authority. Government Printer for the State of Victoria.
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Act No.
INDEX
Subject Clause
Act
amendments to other Acts 50-54
commencement 2
Crown bound by 5
purposes 1
Awards (def.) 3
Common rule orders
applications for 8-9
coming into effect earlier than day made 11
conditions, limitations, exceptions 6, 10, 12
definition 3, 6
effect 6-7
making of and matters Tribunal must consider 10
revocation, omission of terms from 13
scope 11
variation 12
43
Corporations
Court (def.) 27, 34
3, 4, 27, 34, 36, 48
Definitions
Employees
definition 3, 36
recovery of money owed to 45-47
victimisation 36
Employers
applications for revocation of permits 32
definition 3, 36
financial incapacity 10, 12
providing less favourable employment conditions 7
underpayment of employees 45-47
victimisation of employees by 36
Entry powers
industrial officers 28-30
Information Services Officers 19-20, 23-25
Industrial legislation
See Relevant industrial legislation
Industry (def.) 4
Information Services Officers
applications for revocation of permits by 32
appointment 15
confidentiality 26
definition 3
functions 14
identity cards 16, 19
impersonation of 39
offences against 37
police assistance 17
powers (exercise of) 18
42
551011B.I1-28/2/2003 BILL LA CIRCULATION 25-10-2004
Federal Awards (Uniform System) Act 2003
Act No.
Subject Clause
powers and duties regarding
entry 19-20, 23-25
production of documents 20-21
retention of documents 22
search warrants 23-25
3, 36, 47
Interested organisations
Magistrates' Court - Industrial Division
issue, revocation of permits 31-32
proceedings for offences 40, 41
proceedings to recover money owed to employees 45-47
Minister
applications regarding common rule orders 8-9, 13
judicial notice of signature of 42
power to authorise persons to bring prosecutions 41
Offences and penalties
by and against information services officers 16, 26, 37, 39
civil penalties 33-35
proceedings, prosecutions in general 40-43, 48
providing less favourable employment conditions 7
underpayment of employees 45-47
victimisation 36
Organisations See Interested organisations;
Registered organisations
3, 8-9, 13, 47
Peak bodies
31-33
Permits
Proceedings
by and against unincorporated clubs 48
for offences against Act in general 40-43
for recovery of money owed by employers 45-47
44
Proof
41, 44
Prosecutions
Registered organisations
applications for revocation of permits 32
applications regarding common rule orders 8-9, 13
definition 3
power to enter premises
conduct not authorised by 30
contraventions of penalty provisions 33-35
definitions 27
for discussions with employees 29
for investigating suspected contraventions 28
hindrance, obstruction 33
permits 31-33
representation in proceedings 47
victimisation of employees by 36
31, 49
Regulations
Relevant industrial legislation (def.) 3
23-25
Search warrants
3, 12, 15, 41, 42
Secretary
Self-incrimination
protection against 38
43
551011B.I1-28/2/2003 BILL LA CIRCULATION 25-10-2004
Federal Awards (Uniform System) Act 2003
Act No.
Subject Clause
48
Unincorporated clubs
36
Victimisation
8-13
Victorian Civil and Administrative Tribunal
44
551011B.I1-28/2/2003 BILL LA CIRCULATION 25-10-2004
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