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Federal Awards (Uniform System) Bill
Circulation Print
EXPLANATORY MEMORANDUM
PART 1--PRELIMINARY
Clause 1 states that the main purpose of this Act is to refer to the
Commonwealth Parliament a further matter relating to industrial
relations, and to empower the Victorian Civil and Administrative
Tribunal (VCAT) to make orders applying federal award
conditions as common rules in Victoria.
Clause 2 sets out the Act's commencement dates. The Act comes into
operation on a day or days to be proclaimed. Section 52 does not
come into operation unless the Governor in Council is satisfied
that a Bill has been introduced into the Senate or the House of
Representatives of the Commonwealth Parliament containing
provisions about the matter to be referred to that Parliament by
proposed section 4A(1) of the Commonwealth Powers
(Industrial Relations) Act 1996. Clause 2(3) provides that, if
section 52 has come into operation, the remaining Parts of the
Act will not come into operation.
Clause 3 sets out the definitions of terms used in the Act.
Clause 4 defines an "industry" for the purposes of the Act.
Clause 5 provides that the Act binds the Crown, but that nothing in the Act
makes the Crown liable to be prosecuted for an offence.
PART 2--COMMON RULE ORDERS
Clause 6 defines a "common rule order" as an order made by VCAT,
having the effect of binding all employers and employees in the
industry concerned. A common rule order is of no effect to the
extent that it relates to a term or part of a term of an award that
provides for matters other than allowable matters.
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Clause 7 states the effect of a common rule order. A provision of a
contract of employment is of no effect to the extent it provides a
condition of employment less favourable to an employee than
that applicable under a common rule order. It is an offence for an
employer to provide a condition of employment to an employee
that is less favourable than that applicable under a common rule
order (penalty: 120 penalty units). It is also an offence to fail to
comply with a term of a common rule order (penalty: 120 penalty
units). An employer who becomes bound by a common rule
order is entitled to set off an amount that is payable to an
employee against any amount payable to the employee under his
or her contract of employment (as it existed before the order
came into force) that is at least equivalent to the amount required
to be paid under the order.
Clause 8 provides that VCAT may make a common rule order on
application by the Minister, a registered organisation or a peak
body in the relevant industry.
Clause 9 establishes the application procedure for a common rule order.
The applicant must publish a notice specifying the industry and
the relevant term or part of a term of an award, and invite
interested groups to make submissions to VCAT. VCAT must
hear all interested parties before making an order.
Clause 10 requires VCAT to make a common rule order if satisfied that
work is being performed in Victoria in the relevant industry,
there is an award in force, and the award would be binding on an
employee if he/she were employed by an employer party to that
award. VCAT is also required to determine the most appropriate
award to apply, if more than one award covers the particular kind
of work, subject to specified conditions. VCAT may impose a
condition, limitation or exception on a term or part of a term of
an award in a common rule order only under certain
circumstances. These circumstances relate to the term not being
relevant to the employer/employee relationship, its conferring of
power or duty on the Federal Commission, economic incapacity
on the part of an employer or otherwise to enable the practical
operation of the order.
Clause 11 requires VCAT to specify the scope of the order, for example, the
class of employee to which it applies. VCAT may, in exceptional
circumstances, provide that a common rule order comes into
effect on a day earlier than the day on which the order is made.
If that happens, a person cannot be charged with an offence in
respect of conduct that occurred before the day the order is made.
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Clause 12 provides that if a term or part of a term of an award that has been
declared a common rule order is varied by the Federal
Commission, the variation has effect as a common rule.
The common rule order is varied accordingly with effect from the
end of 28 days after the date of effect of the variation of the
award. The Secretary to the Department of Innovation, Industry
and Regional Development must publish a notice detailing the
variation and informing relevant employers of their right to apply
to VCAT for an order under clause 12(3). An employer may then
apply to VCAT in certain circumstances. VCAT may order that
the variation is not binding on the employer or alter the effect of
the variation on the employer. If an employer applies to VCAT,
the variation is not enforceable against the employer until
determination by VCAT.
Clause 13 allows VCAT to revoke a common rule order, or omit terms from
the order, if the award, or terms of the award, on which the order
is based are set aside by the Federal Commission.
PART 3--COMPLIANCE
Division 1--Information Services Officers
Clause 14 sets out the functions of information services officers, as being to
provide information about relevant industrial legislation, as well
as ensuring compliance with relevant industrial legislation and
any other functions conferred on them by legislation. Relevant
industrial legislation is defined in clause 3 to include the Act,
common rule orders and various other industrial Acts and
subordinate legislation.
Clause 15 sets out the appointment mechanism for, and the qualifications
of, information services officers. Information services officers
are appointed by the Secretary.
Clause 16 provides that the information services officers are to be provided
with approved identity cards, which must be produced when
exercising powers.
Clause 17 allows information services officers to request assistance from
the police.
Clause 18 provides that information services officers may exercise powers
only when reasonably necessary to do so for the purpose of
determining compliance with relevant industrial legislation.
In doing so, they must cause as little inconvenience as possible
and must not remain on premises any longer than is reasonably
necessary.
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Clause 19 allows information services officers to enter any premises during
ordinary working hours where they have reasonable grounds for
believing that work under a common rule order is being, or has
been, performed, or documents relevant to compliance with
relevant industrial legislation are kept. If the owner or occupier
is present when an information services officer exercises a power
of entry, the officer must produce his/her identity card and inform
the owner or occupier of the purpose of the entry. If the owner or
occupier is not present at the time of the inspection, the officer
must, on leaving the premises, leave a notice setting out the time
and purpose of the entry, and a description of all things done
whilst on the premises. The officer's contact details must also be
provided. An officer does not have authority to enter any part of
a premises used for residential purposes unless prior to entry the
officer has advised the occupier that he/she may refuse consent to
entry, and the occupier has consented to the entry. If consent is
given the occupier must sign a form acknowledging that consent
has been given. Where a premises is used for both residential
and work purposes, consent to entry is not required, but entry
may only be made if the owner or occupier is present.
Clause 20 sets out the powers of information services officers in inspecting,
taking samples of goods, interviewing employees, or inspecting
documents. An officer may require a person who has custody of
or access to a document relevant to determining compliance with
relevant industrial legislation to produce the document.
Clause 21 allows an information services officer to require the production
of a document for the purposes of determining compliance with
relevant industrial legislation.
Clause 22 allows an information services officer to retain a document for a
period necessary for the performing of functions and exercising
powers as an information services officer.
Clause 23 allows an information services officer to apply for a search
warrant, and sets out the conditions under which a magistrate
may issue a search warrant.
Clause 24 requires an information services officer to announce that he/she is
authorised to enter a premises before executing a search warrant,
unless he/she believes that immediate entry is required to ensure
the safety of a person, or to ensure that the effective execution of
the warrant is not frustrated.
Clause 25 requires that a copy of the warrant is given to the occupier.
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Clause 26 imposes confidentiality requirements on information services
officers in respect of information they receive while performing
their functions.
Division 2--Entry and Inspection of Premises etc. by Registered
Organisations
Clause 27 sets out the purpose of the Division and definitions of terms used
in the Division.
Clause 28 allows authorised officers to enter any premises, during working
hours and without force, for the purpose of investigating a
suspected contravention of this Act. For the purposes of
investigating the suspected contravention, the authorised officer
may enter any premises where employees work who are members
of the registered organisation of which the person is an officer or
employee and which is occupied by an employer bound by a
common rule order based on a specified award that binds the
relevant organisation. After entering the premises the authorised
officer may, for the purposes of investigating the suspected
contravention make copies of documents that are relevant to
the suspected contravention, including time and pay sheets.
The authorised officer may also inspect or view any work,
material or machinery, and interview any employee who is a
member or eligible to be a member of that organisation. For the
purposes of investigating the suspected contravention, the
authorised officer may require an employer to produce
documents.
Clause 29 allows an authorised officer to enter premises where work is
being carried on to which a specified award applies that is
binding on the registered organisation and employees who are
members or eligible to be members work, for the purpose of
holding discussions with any employees who wish to participate.
Such discussions may only take place during meal times and
other breaks. The authorised officer may not enter premises if no
more than 20 employees are employed to work at the premises,
and all the employees at the premises are employed by an
employer who is the holder of a conscientious objection
certificate in force under section 267 of the Commonwealth Act,
and none of the employees employed at the premises is a member
of an organisation.
Clause 30 requires an authorised officer to produce his/her permit prior to
entry. An authorised officer may only enter a premises if he or
she has given the occupier at least 24 hours notice. Entry to any
part of a premises used for residential purposes may only occur
with the permission of the occupier.
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Clause 31 allows the Court to issue a permit, on application by a registered
organisation to an officer or employee of the organisation to
exercise powers under section 28 and 29. A permit is valid for
3 years.
Clause 32 allows the Court to revoke a permit on application, if satisfied
that the authorised officer has intentionally hindered or
obstructed employers or employees or has acted in an improper
manner. An employer, a registered organisation of employers or
an information services officer may make the application.
Clause 33 specifies conduct in relation to this Division that attracts civil
penalties. An authorised officer must not deliberately hinder or
obstruct an employer or employees. An occupier must not refuse
entry to an authorised officer. An employer must not refuse to
comply with the requirements of section 28(3)(a) or (4).
A person must not deliberately hinder or obstruct an authorised
officer. A person to whom a permit has been issued must, within
14 days after its expiry or revocation, return the permit to the
Court.
Clause 34 states that a contravention of a penalty provision in clause 33 is
not an offence. A court, however, may make an order imposing
a penalty on a person who contravenes a penalty provision.
The penalty cannot be more than $10 000 for a body corporate or
$2000 in other cases. A court may grant an injunction requiring a
person not to contravene, or to cease contravening a penalty
provision.
Clause 35 empowers a court that imposes a penalty under section 34(1) to
order that the penalty be paid into the Consolidated Fund or to a
particular registered organisation, or person.
Division 3--Victimisation
Clause 36 requires that an employer, registered organisation or interested
organisation must not victimise an employee who claims a
benefit, or exercises a power or right, under the Act or a common
rule order, or who has brought a proceeding under the Act.
Division 4--Other Offences
Clause 37 makes it an offence to fail to produce documents or hinder
information services officers and also makes it an offence to give
false information or false or misleading documents to
information services officers.
Clause 38 provides protection against self-incrimination.
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Clause 39 makes it an offence to impersonate an information services
officer.
Division 5--Prosecutions, Evidence and Recovery of Money
Clause 40 requires that offences against the Act are to be dealt with by the
Magistrates' Court sitting as the Industrial Division.
Clause 41 provides that a prosecution for an offence against this Act may
only be brought by an authorised person. A person may be
authorised by the Minister to bring a prosecution. The Minister
may also give the Secretary or a Departmental employee
authority to authorise a person to bring a prosecution.
A prosecution may only be conducted by a person authorised
to bring the prosecution or a legal practitioner briefed by them.
Clause 42 requires that all courts must take judicial notice of the signature
of the person giving an authority to prosecute.
Clause 43 provides that for the purposes of the Act, any conduct engaged in
on behalf of a corporation by a director, employee or agent, or
any person under their direction, is also conduct engaged in by
the corporation.
Clause 44 provides that, in a prosecution of an employer for failing to pay
an employee an amount owed to the employee under a contract of
employment, if the employee is dead and the employer alleges
that the period of continuous employment shown in the charge is
wrong, the employer bears the onus of proving the allegation.
Clause 45 provides that an employee who is owed money under the Act or
any other Act, or under a contract of employment or a common
rule order, may take proceedings to recover money owing in the
Industrial Division of the Magistrates' Court. The proceedings
must be started within 6 years after the entitlement arises.
In some circumstances the Court may charge interest on any
money it finds the employee is entitled to.
Clause 46 allows the Court to order an employer it finds guilty of an
offence relating to underpayment to pay the employee any
amount the employee was underpaid, in addition to imposing a
penalty for the offence. The Court may only order the employer
to pay an amount in respect of a period of up to 6 years.
The Court may also charge interest in some circumstances.
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Clause 47 provides that an employee may be represented before the Court
by an employee or agent of a registered organisation or peak
body. An employer may be represented by an employee or agent
of a registered organisation, an interested organisation or a peak
body.
Clause 48 provides that, for the purposes of this Act, the treasurer of an
unincorporated club is to be taken to be the employer of a person,
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.
PART 4--GENERAL
Clause 49 allows the Governor in Council to make regulations.
PART 5--AMENDMENT OF COMMONWEALTH POWERS
(INDUSTRIAL RELATIONS) ACT 1996
Clause 50 amends the Commonwealth Powers (Industrial Relations) Act
1996 by inserting a definition of "industry".
Clause 51 repeals section 5(1)(e). This is a consequence of the referral of
power in clause 52.
Clause 52 inserts a new section 4A. This new section refers to the
Commonwealth Parliament the power of making an award or
order as, or declaring a term of an award or order to be, a
common rule in Victoria for an industry. There is also provision
for termination of this reference of power.
Clause 53 amends section 5(1) and (2) to exclude certain matters from the
new reference of power.
PART 6--AMENDMENT OF VICTORIAN CIVIL AND
ADMINISTRATIVE TRIBUNAL ACT 1998
Clause 54 amends Schedule 1 to the Victorian Civil and Administrative
Tribunal Act 1998 by inserting a new Part 7A, which sets out
certain variations to the standard VCAT procedure for common
rule order proceedings.
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