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This is a Bill, not an Act. For current law, see the Acts databases.
Queensland
INDUSTRIAL RELATIONS
REFORM BILL 1994
Queensland
INDUSTRIAL RELATIONS REFORM
BILL 1994
TABLE OF PROVISIONS
Section Page
PART 1--PRELIMINARY
1 Short title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
PART 2--AMENDMENT OF INDUSTRIAL RELATIONS ACT
1990
2 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
3 Amendment of s 3 (Objects) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
4 Amendment of s 5 (Meaning of terms) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
5 Insertion of new ss 30A and 30B . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
30A Performance of Commission's functions (s 90AA Cwlth) . . . . . . . . 17
30B Commission decisions to be in plain English (s 143(2A) Cwlth) . . 18
6 Insertion of new Divs 4-7 in Pt 4 (Industrial Relations Commission) . . . . 18
Division 4--Minimum wages
49AA Object of Division (s 170AA Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . 18
49AB Meaning of expressions (s 170AB Cwlth) . . . . . . . . . . . . . . . . . . . . . 19
49AC Orders setting minimum wages (s 170AC Cwlth) . . . . . . . . . . . . . . . 19
49AD Orders only on application (s 170AD Cwlth) . . . . . . . . . . . . . . . . . . 19
49AE When Commission may make order (s 170AE Cwlth) . . . . . . . . . . . 19
49AF Matters to be considered when setting minimum wages
(s 170AF Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
49AG Division does not limit other rights (s 170AG Cwlth) . . . . . . . . . . . 21
Division 5--Equal remuneration for work of equal value
49BA Object of Division (s 170BA Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . 21
49BB Meaning of expressions (s 170BB Cwlth) . . . . . . . . . . . . . . . . . . . . . 21
49BC Orders requiring equal remuneration (s 170BC Cwlth) . . . . . . . . . . 21
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49BD Orders only on application (s 170BD Cwlth) . . . . . . . . . . . . . . . . . . 21
49BE When Commission must and may only make order
(s 170BC Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
49BF Immediate or progressive introduction of equal
remuneration (s 170BF Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
49BG Employer not to reduce remuneration (s 170BG Cwlth) . . . . . . . . . 22
49BH Division does not limit other rights (s 170BH Cwlth) . . . . . . . . . . . 22
Division 6--Further provisions about orders under Division 4 or 5
49CA Orders to be written (s 170JA Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . 23
49CB When orders take effect (s 170JB Cwlth) . . . . . . . . . . . . . . . . . . . . . 23
49CC Compliance with orders (s 170JC Cwlth) . . . . . . . . . . . . . . . . . . . . . 23
49CD Amendment and revocation of orders (s 170JD Cwlth) . . . . . . . . . . 23
49CE Inconsistent awards or orders (s 170JG Cwlth) . . . . . . . . . . . . . . . . . 23
Division 7--Industry consultative councils
49D Industry consultative councils (s 133 Cwlth) . . . . . . . . . . . . . . . . . . 24
7 Amendment of s 70 (Basis of procedures and decisions of the
Commission and Industrial Magistrates) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
8 Amendment of s 83 (Representation of parties) . . . . . . . . . . . . . . . . . . . . . . 25
9 Replacement of s 89 (Enforcement of Commission's orders) . . . . . . . . . . . 25
89 Enforcement of Commission's orders . . . . . . . . . . . . . . . . . . . . . . . . . 25
10 Amendment of Pt 10 (Awards and industrial agreements) . . . . . . . . . . . . . . 26
Division 1--The award system
Subdivision 1--Objects of Division
105A Objects of Division (Cwlth s 88A) . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Subdivision 3--Paid rates awards
108A Objects of Subdivision (s 170SA Cwlth) . . . . . . . . . . . . . . . . . . . . . . 27
108B Making or amending paid rates awards (s 170UB Cwlth) . . . . . . . . 27
108C Commission to maintain existing paid rates awards
(s 170UC Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
108D Party acting inconsistently with award's status as a paid
rates award (s 170UD Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
108E Statement identifying paid rates award (s 170UE Cwlth) . . . . . . . . 29
11 Amendment of s 128 (Persons bound by agreement) . . . . . . . . . . . . . . . . . . 29
12 Amendment of s 131 (Powers of Commission re awards) . . . . . . . . . . . . . . 30
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13 Insertion of new ss 131A and 131B . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
131A Commission to include enterprise flexibility provisions in
awards (s 113A Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
131B Amendment of award to give effect to agreement
negotiated under enterprise flexibility provision (s 113B Cwlth) . . 30
14 Insertion of new s 134A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
134A Commission must review awards and industrial
agreements (s 150A Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
15 Insertion of new Pt 10A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
PART 10A--PROMOTING BARGAINING AND FACILITATING
AGREEMENTS
Division 1--Objects and interpretation
139AA Objects of Part (s 170LA Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
139AB Definitions (s 170LB Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Division 2--Certified agreements
139BA Certified agreements (s 170MA Cwlth) . . . . . . . . . . . . . . . . . . . . . . 35
139BB Organisations entitled to be heard
(s 170MB Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
139BC Certification of agreements
(s 170MC Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
139BD When Commission must refuse to
certify agreements (s 170MD Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . 38
139BE How agreement may provide for
amendment (s 170ME Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
139BF Other options open to Commission
instead of refusing to certify agreement (s 170MF Cwlth) . . . . . . . 40
139BG Commission to protect interests of
certain employees (s 170MG Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . 41
139BH Procedures for preventing and
settling disputes (s 170MH Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
139BI Operation of certified agreements (s 170MI Cwlth) . . . . . . . . . . . . . 41
139BJ Party may retire from a certified agreement . . . . . . . . . . . . . . . . . . . 42
139BK Extension of certified agreements
(s 170MJ Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
139BL Effect of certified agreements
(s 170MK Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
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139BM Amendment of certified agreement
as provided in the agreement (s 170ML Cwlth) . . . . . . . . . . . . . . . . 44
139BN Certified agreements may be
amended or terminated by Full Bench (s 170MM Cwlth) . . . . . . . . 45
139BO Review of certified agreements
(s 170MM Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
139BP Certified agreements may be
terminated by parties (s 170MN Cwlth) . . . . . . . . . . . . . . . . . . . . . . 46
139BQ Enforcement of certified agreements . . . . . . . . . . . . . . . . . . . . . . . . . 47
Division 3--Enterprise flexibility agreements
139CA Employer may apply for approval of
implementation of enterprise flexibility agreement
(s 170NA Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
139CB Organisations entitled to be heard
(s 170NB Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
139CC Approval of implementation of
agreement (s 170NC Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
139CD When Commission must refuse to
approve implementation of agreements (s 170ND Cwlth) . . . . . . . . 50
139CE How agreement may provide for its
amendment (s 170NE Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
139CF Other options open to Commission
instead of refusing to approve implementation (s 170NF Cwlth) . . 52
139CG Commission to protect interests of
certain employees (s 170NG Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . 53
139CH Procedures for preventing and
settling disputes (s 170NI Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
139CHA Provisions relevant when business
has distinct parts (s 170LC Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
139CI Operation of enterprise flexibility agreements (s 170NJ Cwlth) . . . 54
139CJ Extension of enterprise flexibility agreements (s 170NK Cwlth) . . 55
139CK Effect of enterprise flexibility
agreements (s 170NL Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
139CL Amendment of enterprise flexibility
agreement as provided in the agreement (s 170NM Cwlth) . . . . . . 56
139CM Enterprise flexibility agreements
may be amended or terminated by Full Bench (s 170NN Cwlth) . . 57
139CN Review of enterprise flexibility
agreements (s 170NN Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
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139CO Enterprise flexibility agreements
may be terminated by persons bound (s 170NO Cwlth) . . . . . . . . . . 58
139CP Eligible union may agree to be
bound by enterprise flexibility agreement (s 170NP Cwlth) . . . . . . 58
Division 4--Immunity from civil liability for protected action
during bargaining period
139DA Object of Division (s 170PA Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . 60
139DC Division's purpose (s 170PC Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . 61
139DD Initiation of bargaining period
(s 170PD Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
139DE Particulars to accompany notice
(s 170PE Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
139DF When bargaining period begins
(s 170PF Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
139DG Protected action for which
immunity is provided (s 170PG Cwlth) . . . . . . . . . . . . . . . . . . . . . . . 62
139DH 72 hours' notice of action must be
given (s 170PH Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
139DI Negotiation must precede industrial action (s 170PI Cwlth) . . . . . . 63
139DJ What happens if Commission orders a ballot under s 190
(s 170PJ Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
139DK Industrial action must be properly
authorised (s 170PK Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
139DL What happens if application to
certify agreement is not made within 21 days (s 170PL Cwlth) . . . 65
139DM Immunity for protected action
(s 170PM Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
139DN When bargaining period ends
(s 170PN Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
139DO Power of Commission to suspend or
terminate bargaining period (s 170PO Cwlth) . . . . . . . . . . . . . . . . . . 66
139DP What happens if Commission
terminates a bargaining period under s 139DO(1)(b)?
(s 170PP Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
Division 5--Conciliation in relation to proposed agreements
139EA Commission may conciliate
proposed agreements under this Part (s 170QH Cwlth) . . . . . . . . . . 68
139EB Directions and orders to assist the
making of agreements (s 170QI Cwlth) . . . . . . . . . . . . . . . . . . . . . . . 69
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Industrial Relations Reform
139EC Commission orders about
negotiations for agreements under this Part (s 170QK Cwlth) . . . . . 69
139ED Representation of employees in
negotiations for enterprise flexibility agreements
(s 170RB Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
Division 6--Provisions common to certified agreements and
enterprise flexibility agreements
139FA Employer not to discriminate
between union members and non-union members when
negotiating agreements (s 170RA Cwlth) . . . . . . . . . . . . . . . . . . . . . 70
139FB Components of wage rates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
139FC Effect of appeal decisions on agreements . . . . . . . . . . . . . . . . . . . . . 71
139FD Inconsistency between agreements
and contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
16 Amendment of s 159 (Entitlement to long service leave) . . . . . . . . . . . . . . 72
17 Replacement of s 164 (Continuous service of casual employees) . . . . . . . 73
164 Continuous service of casual employees . . . . . . . . . . . . . . . . . . . . . . 73
18 Insertion of new s 165A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
165A Time and manner of taking long service leave--casual
employees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
19 Amendment of s 166 (Payment for long service leave) . . . . . . . . . . . . . . . . 75
20 Amendment of Pt 11 (General conditions of employment) . . . . . . . . . . . . . 75
Division 3A--Parental leave
Subdivision 1--Preliminary
174AA Object of Division (s 170KA Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . 76
174AB Basic principles (Sch 14 cl 1 Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . 76
174AC Definitions (Sch 14 cl 2 Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
Subdivision 2--Maternity leave
174BA Entitlement to maternity leave
(Sch 14 cl 3 Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
174BB Conditions of entitlement to
maternity leave (Sch 14 cl 3 Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . 79
174BC Period of maternity leave
(Sch 14 cl 4 Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
174BD Entitlement reduced by other
maternity leave available to employee (Sch 14 cl 5 Cwlth) . . . . . . 82
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Industrial Relations Reform
174BE Taking annual or long service leave
instead of, or in conjunction with, maternity leave
(Sch 14 cl 6 Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
174BF Extending maternity leave
(Sch 14 cl 7 Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
174BG Shortening maternity leave
(Sch 14 cl 8 Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
174BH Effect on maternity leave of failure
to complete 1 year of continuous service (Sch 14 cl 9 Cwlth) . . . . 85
174BI Effect on maternity leave if pregnancy terminates or child
dies (Sch 14 cl 10 Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
174BJ Effect on maternity leave of ceasing to be the primary
care-giver (Sch 14 cl 11 Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
174BK Return to work after maternity leave
(Sch 14 cl 12 Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
174BL Transfer to safe duties because of
pregnancy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
Subdivision 3--Paternity leave
174CA Entitlement to paternity leave
(Sch 14 cl 13 Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
174CB Conditions of entitlement to short
paternity leave (Sch 14 cl 14 Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . 87
174CC Conditions of entitlement to long
paternity leave (Sch 14 cl 15 Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . 88
174CD Period of long paternity leave
(Sch 14 cl 15 Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
174CE Entitlement reduced by other
paternity leave available to employee (Sch 14 cl 16 Cwlth) . . . . . 91
174CF Taking annual or long service leave
instead of, or in conjunction with, paternity leave
(Sch 14 cl 17 Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
174CG Extending long paternity leave
(Sch 14 cl 18 Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
174CH Shortening paternity leave
(Sch 14 cl 19 Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
174CI Effect on long paternity leave of failure to complete 1
year of continuous service (Sch 14 cl 20 Cwlth) . . . . . . . . . . . . . . . 93
174CJ Effect on long paternity leave if pregnancy terminates or
child dies (Sch 14 cl 21 Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
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174CK Effect on paternity leave of ceasing
to be the primary care-giver (Sch 14 cl 22 Cwlth) . . . . . . . . . . . . . . 94
174CL Return to work after paternity leave
(Sch 14 cl 23 Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
Subdivision 4--General
174DA Employee's duty if excessive leave
granted or if maternity leave and paternity leave overlap
(Sch 14 cl 24 Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95
174DB Employer to warn replacement
employee that employment is only temporary
(Sch 14 cl 25 Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
174DC Parental leave and continuity of
service (Sch 14 cl 26 Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97
174DD Effect of Division on other laws
(Sch 14 cl 27 Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97
174DE Regulations for adoption leave
(s 170KC Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97
Division 4--Dismissal
Subdivision 1--Object and interpretation
175AA Object of Division (s 170CA Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . 97
175AB Meaning of expressions (s 170CB Cwlth) . . . . . . . . . . . . . . . . . . . . 98
175AC Exclusion of employees from
Division (s 170CC Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98
Subdivision 2--Requirements for lawful dismissal
175BA When dismissal is unlawful
(ss 170DE, 170DF and 170DG Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . 99
175BB Opportunity to defend against
allegations before dismissal (s 170DC Cwlth) . . . . . . . . . . . . . . . . 100
175BC Notice of dismissal or compensation
to be given (s 170DB Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100
175BD Contravention of Subdivision not an
offence (s 170EG Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
Subdivision 3--Remedies for unlawful dismissal
175CA Orders only on application
(s 170EA Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
175CB Conciliation before application
heard (s 170ED Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
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Industrial Relations Reform
175CC Orders for unlawful dismissal other
than under s 175EC (s 170EE Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . 102
175CD Orders for unlawful dismissal under
s 175EC (s 170EF Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103
175CE Effect of order on leave . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103
175CF Costs for frivolous or vexatious
applications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103
175CG Further orders against employer . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104
Subdivision 4--Orders giving effect to Articles 12 and 13 of Convention
175DA Orders giving effect to Articles 12
and 13 of Convention (s 170FA Cwlth) . . . . . . . . . . . . . . . . . . . . . . 104
175DB Orders only on application
(s 170FB Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105
175DC Commission's powers not limited by
Sdiv 5 (s 170FE Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105
Subdivision 5--Dismissals of 15 or more employees
175EA Orders if employer does not consult
industrial organisation about proposed dismissals
(s 170GA Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105
175EB Orders only on application
(s 170GB Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106
175EC Employer must notify CES of
proposed dismissals (s 170DD Cwlth) . . . . . . . . . . . . . . . . . . . . . . . 106
Subdivision 6--Miscellaneous
175FA Division does not limit other rights
(s 170HB Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107
175FB Orders to be written (s 170JA Cwlth) . . . . . . . . . . . . . . . . . . . . . . . 107
175FC Inconsistent awards, orders etc.
(s 170JG Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107
21 Insertion of new Div 1A in Pt 13 (Industrial organisations) . . . . . . . . . . . . 107
Division 1A--Preliminary
194A Objects of Part (s 187A Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107
22 Amendment of s 196 (Criteria for registration) . . . . . . . . . . . . . . . . . . . . . . 108
23 Amendment of s 197 (Continued registration of small industrial
organisations) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108
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24 Replacement of s 273 (Fixing hearing in relation to
amalgamation etc.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109
273 Fixing hearing for amalgamation etc. . . . . . . . . . . . . . . . . . . . . . . . 109
25 Amendment of s 275 (Approval for submission to ballot of
amalgamation not involving extension of eligibility rules etc.) . . . . . . . . 110
26 Amendment of s 276 (Objections in relation to amalgamation
involving extension of eligibility rules etc.) . . . . . . . . . . . . . . . . . . . . . . . . 111
27 Amendment of s 277 (Approval for submission to ballot of
amalgamation involving extension of eligibility rules etc.) . . . . . . . . . . . . 111
28 Amendment of s 283 (Exemption from ballot) . . . . . . . . . . . . . . . . . . . . . . 111
29 Insertion of new s 283A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112
283A Exemption from ballot--recognition of federal ballot . . . . . . . . . . 112
30 Amendment of s 342 (Prejudice of employee by reason of
membership of industrial organisation) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113
31 Amendment of s 348 (Appointment of industrial inspectors) . . . . . . . . . . . 114
32 Amendment of s 362 (Time and wages record of award employees) . . . . 115
33 Amendment of s 363 (Wages record of non-award employees) . . . . . . . . 115
34 Replacement of s 382 (Parliamentary supervision of orders in council) . 116
382 Notices and applications to be written . . . . . . . . . . . . . . . . . . . . . . . 116
35 Amendment of s 428 (Avoiding Act's obligations) . . . . . . . . . . . . . . . . . . . 116
36 Amendment of s 466 (Breaches of awards etc. generally) . . . . . . . . . . . . . 117
37 Insertion of new s 467A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118
467A Employees not to be dismissed etc. for engaging in
industrial action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118
38 Insertion of new ss 487-490 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119
487 Transitional certified agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . 119
488 Transitional provision about dismissals . . . . . . . . . . . . . . . . . . . . . . 120
489 Transitional provision about small industrial organisations . . . . . . 120
490 Numbering and renumbering of Act . . . . . . . . . . . . . . . . . . . . . . . . . 120
39 Insertion of new Schs 1-13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121
SCHEDULE 1
MINIMUM WAGES CONVENTION
SCHEDULE 2
EQUAL REMUNERATION CONVENTION
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SCHEDULE 3
CONVENTION ON THE ELIMINATION OF ALL FORMS OF
DISCRIMINATION AGAINST WOMEN
SCHEDULE 4
DISCRIMINATION (EMPLOYMENT AND OCCUPATION)
CONVENTION
SCHEDULE 5
ECONOMIC, SOCIAL AND CULTURAL RIGHTS COVENANT
SCHEDULE 6
EQUAL REMUNERATION RECOMMENDATION
SCHEDULE 7
DISCRIMINATION (EMPLOYMENT AND OCCUPATION)
RECOMMENDATION
SCHEDULE 8
FAMILY RESPONSIBILITIES CONVENTION
SCHEDULE 9
WORKERS WITH FAMILY RESPONSIBILITIES
RECOMMENDATION
SCHEDULE 10
TERMINATION OF EMPLOYMENT CONVENTION
SCHEDULE 11
FREEDOM OF ASSOCIATION AND PROTECTION OF THE
RIGHT TO ORGANISE CONVENTION
SCHEDULE 12
RIGHT TO ORGANISE AND COLLECTIVE BARGAINING
CONVENTION
SCHEDULE 13
TERMINATION OF EMPLOYMENT RECOMMENDATION
PART 3--AMENDMENT OF PUBLIC SERVICE MANAGEMENT
AND EMPLOYMENT ACT 1988
40 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 225
41 Amendment of s 40 (Cooperation between State and
Commonwealth Services) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 225
12
Industrial Relations Reform
PART 4--AMENDMENT OF VOCATIONAL EDUCATION,
TRAINING AND EMPLOYMENT ACT 1991
42 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 225
43 Relocation of Schedule (National Vocational Education and
Training Statement) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 226
SCHEDULE . . . . . . . . . . . . . . . . . . . . . . . . . 227
MINOR AMENDMENTS
1994
A BILL
FOR
An Act to amend the Industrial Relations Act 1990 to further promote
workplace reforms and protect worker's entitlements, and for
other purposes
14
Industrial Relations Reform
The Parliament of Queensland enacts-- 1
PART 1--PRELIMINARY 2
title 3
Short
This Act may be cited as the Industrial Relations Reform Act 4
Clause1.
1994. 5
PART 2--AMENDMENT OF INDUSTRIAL 6
RELATIONS ACT 1990 7
amended 8
Act
This Part and the Schedule amend the Industrial Relations Act 9
Clause2.
1990. 10
of s 3 (Objects) 11
Amendment
Clause3.(1) Section 3, after paragraph (a)-- 12
insert-- 13
`(aa) to encourage and assist the making of agreements, between the 14
parties involved in industrial relations, to decide matters about the 15
relationship between employers and employees, particularly at the 16
enterprise or workplace level; and 17
(ab) to provide the means for-- 18
(i) establishing and maintaining an effective framework for 19
protecting wages and employment conditions through 20
awards; and 21
(ii) ensuring that labour standards meet Australia's international 22
obligations; and 23
15
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(ac) to provide a framework of rights and responsibilities for the 1
16
Industrial Relations Reform
parties involved in industrial relations that-- 1
(i) encourages fair and effective bargaining; and 2
(ii) ensures the parties abide by agreements between them; and'. 3
(2) Section 3, after paragraph (g)-- 4
insert-- 5
`(ga)to help prevent and eliminate discrimination on the basis of-- 6
(i) an attribute for which discrimination is prohibited under the 7
Anti-Discrimination Act 1991; or 8
(ii) family responsibilities.'. 9
(3) Section 3(d)-- 10
omit `recognise and encourage the formation', 11
insert `encourage the formation and registration'. 12
of s 5 (Meaning of terms) 13
Amendment
Clause4.(1) Section 5(1), definition "certified agreement"-- 14
omit. 15
(2) Section 5(1)-- 16
insert-- 17
` "Anti-Discrimination Conventions" means-- 18
(a) the Equal Remuneration Convention; and 19
(b) the Convention on the Elimination of all Forms of 20
Discrimination against Women (the English text of which is set 21
out in Schedule 3); and 22
(c) the Discrimination (Employment and Occupation) Convention; 23
and 24
(d) Articles 3 and 7 of the Economic, Social and Cultural Rights 25
Covenant; 26
"certified agreement"means an agreement certified under Part 10A, 27
Division 2 that is in force or a certified agreement as amended under 28
the Division; 29
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"Discrimination (Employment and Occupation) Convention" means 1
the Discrimination (Employment and Occupation) Convention 1958 2
(the English text of which is set out in Schedule 4); 3
"Discrimination (Employment and Occupation) Recommendation" 4
means the Discrimination (Employment and Occupation) 5
Recommendation 1958 (the English text of which is set out in 6
Schedule 7); 7
"discriminatory provision" means a provision about employment that 8
discriminates against an employee on the basis of-- 9
(a) an attribute for which discrimination is prohibited under the 10
Anti-Discrimination Act 1991; or 11
(b) family responsibilities; 12
but does not include a provision that-- 13
(c) discriminates on the basis of the inherent requirements of the 14
employment; or 15
(d) discriminates-- 16
(i) for an institution conducted to conform with the doctrines, 17
tenets, beliefs or teachings of a particular religion or 18
creed--about staff membership on the basis of the doctrines, 19
tenets, beliefs or teachings; and 20
(ii) in good faith to avoid injury to the religious susceptibilities 21
of adherents of the religion or creed; or 22
(e) discriminates by remunerating a young employee according to 23
the employee's age; 24
"Economic, Social and Cultural Rights Covenant" means the 25
International Covenant on Economic, Social and Cultural Rights (the 26
English text of the Preamble, and Parts II and III of which is set out in 27
Schedule 5); 28
"enterprise flexibility agreement" means an agreement approved for 29
implementation under Part 10A, Division 3 that is in force or an 30
enterprise flexibility agreement as amended under the Division; 31
"Equal Remuneration Convention" means the Equal Remuneration 32
Convention 1951 (the English text of which is set out in Schedule 2); 33
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"Equal Remuneration Recommendation" means the Equal 1
Remuneration Recommendation 1951 (the English text of which is set 2
out in Schedule 6); 3
"Family Responsibilities Convention" means the Workers with Family 4
Responsibilities Convention 1981 (the English text of which is set out 5
in Schedule 8); 6
"Family Responsibilities Recommendation" means the Workers with 7
Family Responsibilities Recommendation 1981 (the English text of 8
which is set out in Schedule 9); 9
"Full Bench" means the Full Bench of the Commission; 10
"industrial action" means a lockout or strike; 11
"Minimum Wages Convention" means the Minimum Wage Fixing 12
Convention 1970 (the English text of which is set out in Schedule 1); 13
"paid rates award" means an award that specifies actual entitlements, 14
rather than minimum entitlements, for wages and employment 15
conditions; 16
"Termination of Employment Convention" means the Termination of 17
Employment Convention 1982 (the English text of which is set out in 18
Schedule 10);'. 19
(3) Section 5(1), definition "decision", after `approved'-- 20
insert `, approved for implementation'. 21
of new ss 30A and 30B 22
Insertion
Clause5. After section 30 (in Division 1)-- 23
insert-- 24
of Commission's functions (s 90AA Cwlth) 25
`Performance
`30A.(1) The Commission must perform its functions under any 26
provision of this Act in a way that furthers the objects of this Act relevant to 27
the provision. 28
`(2) In performing the functions, the Commission must-- 29
(a) ensure, so far as it can, that the system of awards provides for 30
secure, relevant and consistent wages and employment 31
19
Industrial Relations Reform
conditions; and 1
(b) have proper regard to the interests of the parties immediately 2
concerned and of the community as a whole; and 3
(c) take into account the principles embodied in the Family 4
Responsibility Convention, particularly those about-- 5
(i) preventing discrimination against workers who have family 6
responsibilities; or 7
(ii) helping workers to reconcile their employment and family 8
responsibilities. 9
`(3) To avoid doubt, it is declared that changes necessary to maintain 10
wages and employment conditions at a relevant level-- 11
(a) may be implemented in stages to achieve consistency over a 12
period; and 13
(b) may be made on condition that relevant parties comply with 14
principles established by the Commission. 15
decisions to be in plain English (s 143(2A) Cwlth) 16
`Commission
`30B. The Commission must ensure that its written decisions are-- 17
(a) written in plain English; and 18
(b) structured in a way that is as easy to understand as the subject 19
matter allows.'. 20
of new Divs 4-7 in Pt 4 (Industrial Relations Commission) 21
Insertion
In Part 4-- 22
Clause6.
insert-- 23
4--Minimum wages 24
`Division
of Division (s 170AA Cwlth) 25
`Object
`49AA. The object of this Division is to give effect to the Minimum 26
Wages Convention. 27
20
Industrial Relations Reform
of expressions (s 170AB Cwlth) 1
`Meaning
`49AB. If an expression used in this Division is also used in the 2
Minimum Wages Convention, it has the same meaning as in the 3
Convention. 4
setting minimum wages (s 170AC Cwlth) 5
`Orders
`49AC. The Commission may make an order setting-- 6
(a) the same minimum wage for all employees in a specified group; 7
or 8
(b) different minimum wages for different categories of employees 9
in a specified group. 10
only on application (s 170AD Cwlth) 11
`Orders
`49AD. The Commission may make an order under this Division only if 12
it has received an application from-- 13
(a) an employee to be covered by the order; or 14
(b) an industrial organisation whose rules entitle it to represent the 15
industrial interests of employees to be covered by the order. 16
Commission may make order (s 170AE Cwlth) 17
`When
`49AE.(1) The Commission must, and may only, make an order if 18
satisfied-- 19
(a) coverage by a system of minimum wages is appropriate, given 20
the employment conditions of the group of employees to be 21
covered by the order; and 22
(b) the order will operate for at least some of the employees in the 23
specified group having regard to employees ineligible under 24
subsection (3). 25
`(2) An order must specify which of the group's employees are excluded 26
from its operation because they are ineligible. 27
`(3) An employee is ineligible only if-- 28
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Industrial Relations Reform
(a) minimum wages for the employee are set by an award, industrial 1
agreement, certified agreement or enterprise flexibility agreement; 2
or 3
(b) proceedings have been commenced under Part 10 or Part 10A for 4
the setting or adjustment of minimum wages for the employee. 5
`(4) Before deciding which group an order should cover, and whether it 6
is satisfied under subsection (1)(a), the Commission must-- 7
(a) give the following organisations an opportunity to express their 8
views-- 9
(i) an industrial organisation whose rules entitle it to represent 10
the industrial interests of any of the employees concerned; 11
(ii) an industrial organisation whose rules entitle it to represent the 12
industrial interests of employers of the employees; 13
(iii) another organisation representing employers of the 14
employees; and 15
(b) take the views into account. 16
`(5) Before making an order, the Commission must give each employer 17
of employees in the group to be covered by the order an opportunity, as 18
prescribed by regulation, to be heard about the making of the order. 19
to be considered when setting minimum wages 20
`Matters
(s 170AF Cwlth) 21
`49AF. When setting minimum wages under this Division, the 22
Commission must consider-- 23
(a) the principles it would apply when setting minimum wages under 24
Part 10; and 25
(b) the needs of workers and their families, taking into account the 26
general level of wages, the cost of living, social security benefits 27
and the relative living standards of other social groups; and 28
(c) economic factors, including the requirements of economic 29
development, levels of productivity and the desirability of 30
reaching and keeping a high level of employment. 31
22
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does not limit other rights (s 170AG Cwlth) 1
`Division
`49AG. This Division does not limit any right a person or industrial 2
organisation may otherwise have to establish minimum wages. 3
5--Equal remuneration for work of equal value 4
`Division
of Division (s 170BA Cwlth) 5
`Object
`49BA. The object of this Division is to give effect to-- 6
(a) the Anti-Discrimination Conventions; and 7
(b) the Equal Remuneration Recommendation; and 8
(c) the Discrimination (Employment and Occupation) 9
Recommendation. 10
of expressions (s 170BB Cwlth) 11
`Meaning
`49BB.(1) In this Division-- 12
"equal remuneration for work of equal value" means equal 13
remuneration for men and women workers for work of equal value. 14
`(2) If an expression used in this Division is also used in the Equal 15
Remuneration Convention, it has the same meaning as in the Convention. 16
requiring equal remuneration (s 170BC Cwlth) 17
`Orders
`49BC.(1) The Commission may make any order it considers 18
appropriate to ensure employees covered by the order will receive equal 19
remuneration for work of equal value. 20
`(2) An order may provide for an increase in remuneration rates, 21
including minimum rates. 22
only on application (s 170BD Cwlth) 23
`Orders
`49BD. The Commission may make an order under this Division only if 24
it has received an application from-- 25
23
Industrial Relations Reform
(a) an employee to be covered by the order; or 1
(b) an industrial organisation whose rules entitle it to represent the 2
industrial interests of employees to be covered by the order; or 3
(c) the Anti-Discrimination Commissioner. 4
Commission must and may only make order (s 170BC Cwlth) 5
`When
`49BE. The Commission must, and may only, make an order if-- 6
(a) it is satisfied the employees to be covered by the order do not 7
receive equal remuneration for work of equal value; and 8
(b) the order can reasonably be regarded as appropriate and as giving 9
effect to-- 10
(i) 1 or more of the Anti-Discrimination Conventions; or 11
(ii) the Equal Remuneration Recommendation; or 12
(iii) the Discrimination (Employment and Occupation) 13
Recommendation. 14
or progressive introduction of equal remuneration 15
`Immediate
(s 170BF Cwlth) 16
`49BF. The order may introduce equal remuneration for work of equal 17
value-- 18
(a) immediately; or 19
(b) progressively, in specified stages. 20
not to reduce remuneration (s 170BG Cwlth) 21
`Employer
`49BG.(1) An employer must not reduce an employee's remuneration 22
because an application or order has been made under this Division. 23
`(2) If an employer purports to do so, the reduction is of no effect. 24
does not limit other rights (s 170BH Cwlth) 25
`Division
`49BH. This Division does not limit any right a person or industrial 26
24
Industrial Relations Reform
organisation may otherwise have to secure equal remuneration for work of 1
equal value. 2
`Division 6--Further provisions about orders under Division 4 or 5 3
to be written (s 170JA Cwlth) 4
`Orders
`49CA. An order of the Commission under Division 4 or 5 must be 5
written. 6
orders take effect (s 170JB Cwlth) 7
`When
`49CB. An order of the Commission under Division 4 or 5 takes effect 8
from the date of the order or a later specified date. 9
with orders (s 170JC Cwlth) 10
`Compliance
`49CC. An order of the Commission under Division 4 or 5 of is 11
enforceable in the same way as an award. 12
and revocation of orders (s 170JD Cwlth) 13
`Amendment
`49CD. The Commission may amend or revoke an order under 14
Division 4 or 5 only if it has received an application from any of the 15
following persons (whether or not named or described in the order)-- 16
(a) an employer, or representative of an employer, covered by the 17
order; 18
(b) an employee, or representative of any employee, covered by the 19
order. 20
awards or orders (s 170JG Cwlth) 21
`Inconsistent
`49CE. An award, industrial agreement, certified agreement, enterprise 22
flexibility agreement or order of the Commission that is inconsistent with 23
an order under Division 4 or 5 does not apply to the extent the inconsistency 24
detrimentally affects the rights of the employees concerned. 25
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7--Industry consultative councils 1
`Division
consultative councils (s 133 Cwlth) 2
`Industry
`49D.(1) In this section-- 3
"industry" includes-- 4
(a) a business, trade, manufacture, undertaking or calling of 5
employers; and 6
(b) a calling, service, employment, handicraft, industrial occupation 7
or vocation of employees; and 8
(c) a branch of an industry and a group of industries. 9
`(2) The Commission must encourage and assist the establishment and 10
effective operation of consultative councils for particular industries. 11
`(3) The Commission must encourage the participants in an industry to 12
use the relevant consultative council-- 13
(a) to develop measures to improve efficiency and competitiveness 14
in the industry; and 15
(b) to address barriers to workplace reform in the industry. 16
`(4) To promote the effective operation of a consultative council for an 17
industry, a Commissioner may, if the Chief Industrial Commissioner 18
agrees-- 19
(a) chair the council's meetings; or 20
(b) take part in the council's discussions; or 21
(c) nominate another Commission member to chair the council's 22
meetings or take part in its discussions. 23
`(5) The Chief Industrial Commissioner may agree only if the Chief 24
Industrial Commissioner is satisfied the council properly represents-- 25
(a) industrial organisations, and associations, of employers in the 26
industry; and 27
(b) industrial organisations of employees in the industry.'. 28
26
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of s 70 (Basis of procedures and decisions of the 1
Amendment
Commission and Industrial Magistrates) 2
Clause7. Section 70(3), before paragraph (a)-- 3
insert-- 4
`(aa)the objects of this Act; and'. 5
of s 83 (Representation of parties) 6
Amendment
Clause8. Section 83(1)(d)(ii)-- 7
omit, insert-- 8
`(ii) with the Commission's leave if the Commission considers 9
representation by counsel or solicitor is desirable for the 10
effective conduct of the proceedings and the proceedings 11
are-- 12
(A) for the exercise of the Commission's powers under 13
section 39; or 14
(B) about the rules of an industrial organisation, or an 15
association seeking registration as an industrial 16
organisation; or'. 17
of s 89 (Enforcement of Commission's orders) 18
Replacement
Section 89-- 19
Clause9.
omit, insert-- 20
of Commission's orders 21
`Enforcement
`89.(1) The Commission may make an order about an industrial dispute 22
directed to-- 23
(a) an industrial organisation; or 24
(b) a person in a capacity as an officer or agent of an industrial 25
organisation; or 26
(c) another person. 27
`(2) If an order may be directed either to an industrial organisation or a 28
person, the Commission may make an order directed to the person only 29
27
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after considering whether it would be more appropriate to direct the order 1
against the industrial organisation. 2
`(3) An order must specify-- 3
(a) a time for complying with the order; and 4
(b) if the order is made against a person--the person's name. 5
`(4) The Commission may extend the specified time. 6
`(5) If a party to the industrial dispute considers the industrial 7
organisation or person has not substantially complied with the order, the 8
party may cause a notice to be issued under the rules of court calling on the 9
industrial organisation or person to show cause to the Full Industrial Court 10
at a specified time why the industrial organisation or person should not be 11
dealt with under section 90.'. 12
of Pt 10 (Awards and industrial agreements) 13
Amendment
Clause10.(1) Part 10, before Division 1-- 14
insert-- 15
1--The award system 16
`Division
1--Objects of Division 17
`Subdivision
of Division (Cwlth s 88A) 18
`Objects
`105A. The objects of this Division are to ensure-- 19
(a) employees are protected by-- 20
(i) awards setting fair and enforceable minimum wages and 21
employment conditions that are kept at a relevant level; and 22
(ii) in appropriate cases, by paid rates awards setting fair and 23
enforceable wages and employment conditions that are kept 24
at a relevant level; and 25
(b) awards (other than paid rates awards) act as a safety net of 26
minimum wages and employment conditions underpinning direct 27
bargaining; and 28
28
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(c) awards are suited to the efficient performance of work according 1
to the needs of particular industries and enterprises, while 2
employee's interests are properly taken into account; and 3
(d) when making, reviewing and amending awards, regard is had to 4
stable and appropriate relativities based on skill, responsibility, 5
the conditions under which work is performed, and the need for 6
skill-based career paths; and 7
(e) the Commission's functions and powers in relation to making 8
and amending awards are performed and exercised in a way that 9
gives employees prompt access to fair and enforceable minimum 10
wages and employment conditions, so far as they do not already 11
have them.'. 12
(2) Part 10, Division 1-- 13
renumber as Subdivision 2. 14
(3) Part 10, Division 2-- 15
omit, insert-- 16
3--Paid rates awards 17
`Subdivision
of Subdivision (s 170SA Cwlth) 18
`Objects
`108A. The objects of this Subdivision are to ensure that-- 19
(a) in appropriate cases, employees are protected by paid rates 20
awards setting fair and enforceable wages and employment 21
conditions that are kept at a relevant level; and 22
(b) paid rates awards are suited to the efficient performance of work 23
according to the needs of particular industries and enterprises, 24
while employees' interests are also properly taken into account. 25
or amending paid rates awards (s 170UB Cwlth) 26
`Making
`108B.(1) This section applies if-- 27
(a) the Commission proposes-- 28
(i) to make a new award covering employees of a particular 29
kind in an industry; or 30
29
Industrial Relations Reform
(ii) to amend an existing award to cover employees of a 1
particular kind in an industry; and 2
(b) the employees' wages and employment conditions, so far as they 3
have customarily been decided by an award, have been decided 4
by a paid rates award. 5
`(2) The Commission must-- 6
(a) make the new award as a paid rates award; or 7
(b) amend the existing award to be a paid rates award; 8
so far as the award decides the employees' wages and employment 9
conditions that have customarily been decided by a paid rates award. 10
`(3) However, the Commission need not do so if-- 11
(a) it considers the matters that would be dealt with by the proposed 12
award would be more appropriately dealt with by a certified 13
agreement or an enterprise flexibility agreement; or 14
(b) there is a reasonable prospect of the matters, that would be dealt 15
with by the proposed award, being dealt with by a certified 16
agreement or an enterprise flexibility agreement; or 17
(c) it is satisfied that it would be against the public interest; or 18
(d) the parties to the proposed award, or the award as proposed to be 19
amended, have agreed to the award not being a paid rates award. 20
to maintain existing paid rates awards (s 170UC Cwlth) 21
`Commission
`108C.(1) The Commission must maintain and amend existing paid 22
rates awards, having regard to the objects of this Part and the 23
Commission's functions under section 30A(2). 24
`(2) However, the Commission need not act under subsection (1) so far 25
as the Commission is satisfied it is against the public interest. 26
`(3) Section 30A(2)(a) does not require the Commission to ensure paid 27
rates awards are consistent with awards that are not paid rates awards. 28
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Industrial Relations Reform
acting inconsistently with award's status as a paid rates award 1
`Party
(s 170UD Cwlth) 2
`108D. The Commission may-- 3
(a) cancel a paid rates award and replace it with an award that is not a 4
paid rates award; or 5
(b) amend a paid rates award to stop it being a paid rates award; 6
if the Commission is satisfied, after giving the parties to the award an 7
opportunity to be heard, that the party has acted in a way so inconsistent 8
with the award as to make it inappropriate for the award to continue as a 9
paid rates award. 10
identifying paid rates award (s 170UE Cwlth) 11
`Statement
`108E.(1) The Commission must include in a new paid rates award a 12
statement that the award is a paid rates award. 13
`(2) If the Commission amends-- 14
(a) an existing paid rates award; or 15
(b) an existing award so that it becomes a paid rates award; 16
the Commission must include in the amended award a statement that the 17
award is a paid rates award, unless the award already contains the statement. 18
`(3) If the Commission amends an award to stop it being a paid rates 19
award, it must remove the statement from the award. 20
`(4) This section does not affect the validity of an award or amendment.'. 21
of s 128 (Persons bound by agreement) 22
Amendment
Section 128-- 23
Clause11.
insert-- 24
`(2) In this section-- 25
"party" to an industrial agreement includes an employer who is a 26
successor, assignee or transmittee (whether immediate or not) to or of 27
the whole or part of the party's business, including a corporation that 28
has acquired or taken over the whole or part of the party's business.'. 29
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of s 131 (Powers of Commission re awards) 1
Amendment
Section 131-- 2
Clause12.
insert-- 3
`(4) The Commission may refrain from hearing, further hearing, or 4
deciding an application to amend an award while-- 5
(a) it considers that, in all the circumstances, the parties concerned 6
should try to negotiate a certified agreement or enterprise 7
flexibility agreement to deal with the subject matter of the 8
proposed amendment; and 9
(b) it is satisfied that there is a reasonable prospect of the parties 10
making the agreement.'. 11
of new ss 131A and 131B 12
Insertion
Clause13. After section 131-- 13
insert-- 14
to include enterprise flexibility provisions in awards 15
`Commission
(s 113A Cwlth) 16
`131A.(1) This section applies when the Commission makes or amends 17
an award. 18
`(2) If it considers it appropriate, the Commission must include in the 19
award a provision establishing a process for negotiating agreements at the 20
enterprise or workplace level about how the award should be amended to 21
make the enterprise or workplace operate more efficiently according to its 22
particular needs. 23
of award to give effect to agreement negotiated under 24
`Amendment
enterprise flexibility provision (s 113B Cwlth) 25
`131B.(1) This section applies if an application is made for the 26
amendment of an award, as it applies to an enterprise or workplace, to give 27
effect to an agreement made under a provision included in the award under 28
section 131A. 29
`(2) The Commission may amend the award only if it is satisfied the 30
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amendment would not disadvantage the employees who would be affected 1
by the amendment in relation to their employment conditions. 2
`(3) An amendment disadvantages employees in relation to their 3
employment conditions only if-- 4
(a) it would result in the reduction of the employees' entitlements or 5
protection under the award, another award or an industrial 6
agreement; and 7
(b) in the context of their employment conditions considered as a 8
whole, the Commission considers the reduction is against the 9
public interest. 10
`(4) Each industrial organisation of employees that is a party to the award 11
may be heard on the application. 12
`(5) The Commission must not refuse to amend the award merely 13
because an industrial organisation refuses to agree or consent to the 14
amendment, if the Commission is satisfied the refusal is unreasonable.'. 15
of new s 134A 16
Insertion
Clause14. Before section 135 (in Division 5)-- 17
insert-- 18
must review awards and industrial agreements 19
`Commission
(s 150A Cwlth) 20
`134A.(1) Each award or industrial agreement in force must be reviewed 21
by the Commission-- 22
(a) within 3 years after-- 23
(i) it was made; or 24
(ii) if it was made before the commencement of this section--the 25
commencement; and 26
(b) within 3 years after it was last reviewed under this section. 27
`(2) After reviewing an award or industrial agreement, the Commission 28
must take the steps that may be prescribed by regulation to remedy any of 29
the following deficiencies found by it-- 30
(a) for an award or industrial agreement-- 31
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Industrial Relations Reform
(i) the award or industrial agreement contains a discriminatory 1
provision; 2
(ii) the award or industrial agreement contains obsolete or dated 3
provisions; 4
(iii) the award or industrial agreement is not structured in a way 5
that is as easy to understand as the subject matter allows; 6
(iv) the award or industrial agreement prescribes matters in 7
unnecessary detail; 8
(b) for an award-- 9
(i) the award's terms are no longer appropriate having regard to 10
the Commission's function under section 30A(2)(a) to 11
ensure the system of awards provides for secure, relevant 12
and consistent wages and employment conditions; 13
(ii) the award is not written in plain English; 14
(c) for an industrial agreement--the agreement's terms no longer 15
provide for secure, relevant and consistent wages and 16
employment conditions. 17
`(3) The steps prescribed may include amending the award or industrial 18
agreement after giving a party to the award or industrial agreement who has 19
a genuine interest in the matter an opportunity to be heard.'. 20
of new Pt 10A 21
Insertion
After Part 10-- 22
Clause15.
insert-- 23
`PART 10A--PROMOTING BARGAINING AND 24
FACILITATING AGREEMENTS 25
1--Objects and interpretation 26
`Division
of Part (s 170LA Cwlth) 27
`Objects
`139AA.(1) The objects of this Part are-- 28
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Industrial Relations Reform
(a) to promote bargaining and assist agreements that will assist 1
labour market reform by encouraging-- 2
(i) single bargaining units; and 3
(ii) workplace bargaining directed at increased productivity; and 4
(iii) continuous improvement in the workplace; and 5
(iv) the achievement in the workplace of best practice, increased 6
work satisfaction and career opportunities; and 7
(b) to encourage the use of agreements, particularly at the enterprise 8
or workplace level. 9
`(2) The Commission must, as far as practicable, perform its functions 10
under this Part in a way that furthers the objects of this Act and, in 11
particular, the objects of this Part. 12
`(3) Section 70(3) does not apply to the performance of the 13
Commission's functions under this Part. 14
`(4) The Commission's functions under this Part may be performed by 15
an Industrial Commissioner. 16
(s 170LB Cwlth) 17
`Definitions
`139AB. In this Part-- 18
"eligible union", for an agreement that applies to an enterprise carried on 19
by an employer, means an industrial organisation of employees-- 20
(a) that is a party to an award or industrial agreement binding the 21
employer for work performed in the enterprise; and 22
(b) of which 1 or more employees whom the employer employs to 23
perform work in the enterprise are members; 24
"employer" in Division 3 includes 2 or more employers carrying on a 25
business as a joint venture or common enterprise; 26
"enterprise" means-- 27
(a) a business carried on by a single employer; or 28
(b) a geographically distinct part of the business; or 29
(c) 2 or more geographically distinct parts of the same business 30
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Industrial Relations Reform
carried on by a single employer; 1
"negotiating party" in Division 3 means the initiating party and the other 2
proposed party mentioned in section 139DD; 3
"part" of a single business includes-- 4
(a) a geographically distinct part of the single business; or 5
(b) a distinct operational or organisational unit within the single 6
business; 7
"party" to an agreement includes an employer who is a successor, assignee 8
or transmittee (whether immediate or not) to or of the whole or part of 9
a party's business, including a corporation that has acquired or taken 10
over the whole or part of the party's business; 11
"period of the agreement" means the period of operation of the agreement 12
specified in the agreement or the period as extended under either of the 13
following sections-- 14
· section 139BK (Extension of certified agreements) 15
· section 139CJ (Extension of enterprise flexibility agreements); 16
"relevant industrial matter" in Division 4 means an industrial matter that 17
is the subject of negotiations; 18
"single business" means-- 19
(a) a business carried on by a single employer; or 20
(b) a business carried on by 2 or more employers as a joint venture 21
or common enterprise; or 22
(c) a single project or undertaking; or 23
(d) activities carried on by-- 24
(i) the State; or 25
(ii) a body, association, office or other entity established for a 26
public purpose under a State law; or 27
(iii) another body in which the State has a controlling interest; 28
"single enterprise" means-- 29
(a) a single business; or 30
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Industrial Relations Reform
(b) part of a single business; or 1
(c) a single workplace. 2
2--Certified agreements 3
`Division
agreements (s 170MA Cwlth) 4
`Certified
`139BA.(1) An employer or an industrial organisation of employers and 5
an industrial organisation of employees may make a memorandum of 6
agreement between them about an industrial matter. 7
`(2) The parties to the agreement must apply to the Commission to 8
certify the agreement. 9
entitled to be heard (s 170MB Cwlth) 10
`Organisations
`139BB.(1) An industrial organisation of employees is entitled to be 11
heard on an application to the Commission to certify an agreement, or to 12
approve an extension or amendment of a certified agreement, applying to a 13
single enterprise if-- 14
(a) the organisation is entitled to represent the industrial interests of 15
the organisation's members who are employed by an employer 16
who is a party to the agreement to perform work in the single 17
enterprise; or 18
(b) the organisation-- 19
(i) is bound by an award that binds the employer for work 20
performed in the single enterprise; and 21
(ii) can show it has a genuine interest in the application. 22
`(2) As soon as practicable after the application is made, the Commission 23
must notify, as prescribed by regulation, each industrial organisation entitled 24
to be heard that-- 25
(a) the application has been made; and 26
(b) the industrial organisation is entitled to be heard on the 27
application. 28
`(3) This section does not affect another right of an industrial 29
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Industrial Relations Reform
organisation of employees or of another entity to intervene or be heard, or 1
apply to intervene or be heard, on an application. 2
of agreements (s 170MC Cwlth) 3
`Certification
`139BC.(1) The Commission must, and may only, certify an agreement 4
if satisfied-- 5
(a) the agreement does not disadvantage the employees covered by 6
the agreement in relation to their employment conditions; and 7
(b) the agreement includes procedures for preventing and settling 8
disputes between the employers and employees covered by the 9
agreement about matters arising under the agreement; and 10
(c) the agreement either-- 11
(i) establishes a process for the parties to the agreement to 12
consult each other about changes to the organisation or 13
performance of work in any workplace to which the 14
agreement relates; or 15
(ii) states that it is not appropriate for the agreement to provide for 16
the consultation; and 17
(d) during the negotiations for the agreement, reasonable steps were 18
taken to consult the employees covered by the agreement about 19
the agreement; and 20
(e) before the application for certification was made, reasonable steps 21
were taken to inform the employees covered by the agreement 22
of-- 23
(i) the agreement's terms; and 24
(ii) the effect of the terms; and 25
(iii) in particular, the procedures mentioned in paragraph (b); and 26
(iv) the intention to apply to the Commission to certify the 27
agreement, and about the consequences of certification; and 28
(f) if the agreement applies only to a single enterprise-- 29
(i) subject to subsections (4) and (5), the parties to the agreement 30
include each industrial organisation of employees that-- 31
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Industrial Relations Reform
that-- 1
(A) is a party to the award or industrial agreement binding 2
the employer; or 3
(B) if no award or industrial agreement binds the 4
employer--is entitled is to represent the industrial 5
interests of the employees who are covered by the 6
agreement; and 7
(ii) the agreement has been negotiated-- 8
(A) on the one hand, by each employer concerned or the 9
employer's representative; and 10
(B) on the other hand, by a person representing all the other 11
parties to the agreement; and 12
(g) the agreement specifies its period of operation. 13
`(2) Under subsection (1)(a), an agreement disadvantages employees in 14
relation to their employment conditions only if-- 15
(a) certification of the agreement-- 16
(i) would result in the reduction of the employees' entitlements 17
or protection under an award or industrial agreement that 18
binds the employer; or 19
(ii) if no award or industrial agreement binds the 20
employer--would not provide employee entitlements or 21
protection at least equal to the employees' entitlements or 22
protection under an appropriate award or industrial 23
agreement nominated in the agreement; and 24
(b) in the context of the employment conditions considered as a 25
whole, the Commission considers the reduction is against the 26
public interest. 27
`(3) Subsection (1)(d) and (e) does not apply if the Commission is 28
satisfied-- 29
(a) the agreement applies only to a new business, project or 30
undertaking; and 31
(b) when the application for certification was made, no-one had been 32
employed for the business, project or undertaking. 33
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Industrial Relations Reform
`(4) Subsection (1)(f)(i) does not apply if the Commission is satisfied-- 1
(a) each industrial organisation of employees mentioned in the 2
subsection has been given the opportunity to be a party to the 3
agreement; and 4
(b) at least 1 of the industrial organisations is a party to the 5
agreement; and 6
(c) the agreement is in the interests of the employees whose 7
employment is covered by the agreement. 8
`(5) Subsection (1)(f)(i) does not apply to an industrial organisation of 9
employees if none of its members is employed in the single enterprise 10
concerned. 11
Commission must refuse to certify agreements 12
`When
(s 170MD Cwlth) 13
`139BD.(1) The Commission may refuse to certify an agreement other 14
than an agreement applying only to a single enterprise if it considers 15
certifying the agreement would be against the public interest. 16
`(2) The Commission must not certify an agreement if it considers a 17
provision of the agreement is inconsistent with-- 18
(a) a provision of Part 4, Divisions 2 and 3 and Part 11, Division 4; 19
or 20
(b) a Commission order under the Divisions. 21
`(3) The Commission must not certify an agreement if satisfied-- 22
(a) an employer has, in connection with negotiating the agreement, 23
contravened 1 or more of the following sections-- 24
· section 139FA (Employer not to discriminate between union 25
members and non-union members when negotiating 26
agreements) 27
· section 342 (Prejudice of employee by reason of 28
membership of industrial organisation) 29
· section 343 (Prejudice of employee by reason of 30
nonmembership of industrial organisation) 31
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Industrial Relations Reform
· section 344 (Conduct in relation to holder of conscientious 1
objector's certificate); or 2
(b) the employer has caused an entity, in connection with 3
negotiations for the agreement, to engage in conduct that, had the 4
employer engaged in it, would be a contravention by the 5
employer of any of the sections mentioned in paragraph (a); or 6
(c) an entity has, for the employer-- 7
(i) engaged in the conduct mentioned in paragraph (b); or 8
(ii) caused another entity to engage in the conduct. 9
`(4) Subsection (3) does not apply if the Commission is satisfied the 10
contravention or conduct, and its effects, have been fully remedied. 11
`(5) The Commission must not certify an agreement if it considers the 12
agreement contains a discriminatory provision. 13
`(6) The Commission may refuse to certify an agreement if it considers 14
the agreement applies only to a part of a single business that-- 15
(a) is neither a geographically distinct part of the single business nor 16
a distinct operational or organisational unit within the single 17
business; and 18
(b) is defined by the agreement so that the agreement will not cover 19
employees it could reasonably cover, having regard to-- 20
(i) the nature of the work performed by the employees covered 21
by the agreement; and 22
(ii) the organisational and operational relationships between the 23
part and the rest of the single business; and 24
(c) it is unfair for the agreement not to cover the employees. 25
`(7) This section applies despite section 139BC. 26
agreement may provide for amendment (s 170ME Cwlth) 27
`How
`139BE.(1) If an agreement provides for any of its terms to be amended 28
by a later agreement, the Commission may certify the agreement only if 29
satisfied the agreement-- 30
(a) specifies the amendable terms and when and how they can be 31
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amended; and 1
(b) provides that an amendment has effect only if-- 2
(i) it is agreed to by all the parties who are bound by the 3
agreement when the amendment is made; and 4
(ii) it is approved by the Commission under section 139BM. 5
`(2) To avoid doubt, it is declared that subsection (1) does not apply to an 6
agreement so far as the obligations under the agreement can change, 7
because of the agreement's terms, without the need for a later agreeement 8
between the parties. 9
options open to Commission instead of refusing to certify 10
`Other
agreement (s 170MF Cwlth) 11
`139BF.(1) This section applies if the Commission has grounds not to 12
certify an agreement under any of the following sections-- 13
· section 139BC (Certification of agreements) 14
· section 139BD (When Commission to refuse to certify 15
agreements) 16
· section 139BE (How agreement may provide for its 17
amendment). 18
`(2) The Commission may accept an undertaking about the agreement's 19
operation from 1 or more of the parties. 20
`(3) The Commission may certify the agreement if satisfied the 21
undertaking meets its concerns. 22
`(4) If the undertaking is not complied with, the Commission may 23
terminate the agreement after giving the parties an opportunity to be heard. 24
`(5) In any case, before refusing to certify the agreement, the 25
Commission must give the parties an opportunity-- 26
(a) to amend the agreement; or 27
(b) to do what is necessary for the Commission to be able to certify 28
the agreement. 29
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to protect interests of certain employees 1
`Commission
(s 170MG Cwlth) 2
`139BG.(1) The Commission must comply with this section in 3
performing its functions and exercising its powers about an application to 4
certify an agreement. 5
`(2) The Commission must identify the employees who may be covered 6
by the agreement but whose interests may not have been sufficiently taken 7
into account in the negotiations for, or the terms of, the agreement. 8
`(3) Examples of employees whose interest may not have been taken 9
into account are-- 10
(a) women; and 11
(b) persons whose first language is not English; and 12
(c) young persons. 13
`(4) When deciding whether it is satisfied under section 139BC(1)(d) and 14
(e), the Commission must do whatever is necessary to find out-- 15
(a) whether the employees were consulted about the agreement and 16
informed of the matters mentioned in section 139BC(1)(e) in 17
ways appropriate to their particular circumstances and needs; and 18
(b) in particular, whether the effects on the relevant employees of the 19
agreement's terms were properly explained to the employees. 20
`(5) If it considers there has been a failure to consult or explain as 21
mentioned in subsection (4), the Commission must make the orders it 22
considers necessary to remedy the failure and its effects. 23
for preventing and settling disputes (s 170MH Cwlth) 24
`Procedures
`139BH. Dispute prevention and settling provisions in a certified 25
agreement may empower the Commission to settle disputes, if the 26
Commission approves of the provisions. 27
of certified agreements (s 170MI Cwlth) 28
`Operation
`139BI.(1) A certified agreement comes into force when it is certified. 29
`(2) A certified agreement remains in force unless-- 30
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(a) it is terminated by the Commission under section 139BF(4); or 1
(b) because of 1 or more orders or declarations under the relevant 2
sections-- 3
(i) it is terminated; or 4
(ii) all the remaining parties to the agreement are industrial 5
organisations of employees; or 6
(iii) all the remaining parties to the agreement are employers or 7
industrial organisations of employers; or 8
(c) it is amended by the parties, other than under 9
section 139BN(4)(c); or 10
(d) it is replaced by a new certified agreement or by an enterprise 11
flexibility agreement. 12
`(3) In this section-- 13
"relevant sections" means-- 14
· section 139BN (Certified agreements may be amended or 15
terminated by Full Bench) 16
· section 139BP (Certified agreements may be terminated by 17
parties) 18
· section139BQA (Party affected by industrial action may 19
withdraw). 20
may retire from a certified agreement 21
`Party
`139BJ.(1) A party to a certified agreement may file in the Industrial 22
Registrar's office a notice of intention to retire from the agreement at the 23
end of a specified period of at least 30 days from the day of filing. 24
`(2) The notice must be filed-- 25
(a) within 30 days before the end of the period of the agreement; or 26
(b) while the agreement remains in force because of 27
section 139BI(2). 28
`(3) At the end of the specified period, the party who filed the notice 29
ceases to be a party to the certified agreement. 30
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of certified agreements (s 170MJ Cwlth) 1
`Extension
`139BK.(1) The period of a certified agreement may be extended if-- 2
(a) the parties agree to the extension; and 3
(b) before the end of the period of operation of the agreement or the 4
period as last extended under this section-- 5
(i) if the agreement applies only to a single enterprise--1 or 6
more of the parties apply to the Commission to approve the 7
extension; or 8
(ii) otherwise--1 or more of the parties notify the Commission of 9
the extension. 10
`(2) If an application is made under subsection (1)(b)(i), the extension 11
has effect at least until the application is decided, even if that happens after 12
the period mentioned in subsection (1)(b). 13
`(3) The Commission must approve the extension unless an industrial 14
organisation of employees, entitled under section 139BB to be heard, 15
satisfies the Commission the extension would not be in the interests of the 16
employees covered by the agreement. 17
`(4) If that happens, the Commission must not approve the extension. 18
of certified agreements (s 170MK Cwlth) 19
`Effect
`139BL. While a certified agreement is in force-- 20
(a) subject to paragraph (b), the agreement's terms prevail over the 21
terms of an award or industrial agreement to the extent of the 22
inconsistency; and 23
(b) the agreement has no effect so far as it is inconsistent with an 24
enterprise flexibility agreement approved for implementation 25
before the agreement was certified; and 26
(c) a term of the agreement can be amended by the parties, but only 27
as provided in either of the following sections-- 28
· section 139BM (Amendment of certified agreement as provided 29
in the agreement) 30
· section 139BN (Certified agreements may be amended or 31
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terminated by Full Bench); and 1
(d) the agreement may only be amended to remove ambiguity or 2
uncertainty; and 3
(e) the Commission may not exercise powers to amend the 4
agreement only under this Division. 5
of certified agreement as provided in the agreement 6
`Amendment
(s 170ML Cwlth) 7
`139BM.(1) If a certified agreement provides for any of its terms to be 8
amended by a later agreement, the amendment takes effect only if approved 9
by the Commission on application by the parties bound by the agreement 10
when the amendment was made. 11
`(2) The Commission must, and may only, approve the amendment if 12
satisfied-- 13
(a) the amendment was made as required by the agreement; and 14
(b) the amendment has been agreed to by all parties bound by the 15
agreement when the amendment was made; and 16
(c) the Commission would have no grounds under a relevant 17
section to refuse to certify the agreement as amended if-- 18
(i) the application for approval were an application to the 19
Commission to certify the agreement as amended; and 20
(ii) the agreement as in force before the amendment takes effect 21
were not in force. 22
`(3) In this section-- 23
"relevant section" means 1 of the following-- 24
· section 139BC (Certification of agreements) 25
· section 139BD (When Commission must refuse to certify 26
agreements). 27
`Procedure if grounds to refuse amendments exist (s 170MK Cwlth) 28
`139BMA.(1) This section applies if the Commission has grounds to 29
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refuse to approve the amendment of a certified agreement under 1
section 139BM (Amendment of certified agreement as provided in the 2
agreement). 3
`(2) The Commission may accept an undertaking from 1 or more of the 4
parties about the agreement's operation as amended and, if it is satisfied the 5
undertaking meets the Commission's concerns, may approve the 6
amendment. 7
`(3) If an undertaking is not observed, the Commission may set aside the 8
amendment after giving the parties an opportunity to be heard. 9
`(4) In any case, before refusing to approve the amendment, the 10
Commission must give the parties an opportunity to do what is necessary 11
for the Commission to be able to approve the amendment. 12
agreements may be amended or terminated by Full Bench 13
`Certified
(s 170MM Cwlth) 14
`139BN.(1) While a certified agreement is in force, the Full Bench may 15
review the agreement's operation after giving the parties to the agreement an 16
opportunity to be heard. 17
`(2) The Full Bench may do so only-- 18
(a) on its own initiative; or 19
(b) on application by a party to the agreement. 20
`(3) The remainder of this section applies if the Full Bench finds-- 21
(a) for any agreement--that the continued operation of the agreement 22
would be unfair to the employees covered by the agreement; or 23
(b) for an agreement that does not apply only to a single 24
enterprise--that the continued operation of the agreement would 25
be against the public interest. 26
`(4) The Full Bench may-- 27
(a) terminate the agreement; or 28
(b) accept an undertaking about the agreement's operation; or 29
(c) permit the parties to amend the agreement. 30
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`(5) If an undertaking is not complied with, the Full Bench may 1
terminate the agreement after giving the parties an opportunity to be heard. 2
of certified agreements (s 170MM Cwlth) 3
`Review
`139BO. The Full Bench must review the operation of each certified 4
agreement-- 5
(a) within 3 years after-- 6
(i) it was made; or 7
(ii) if it was made before the commencement of this section and 8
was not reviewed by the Full Bench before the 9
commencement--the commencement; and 10
(b) within 3 years after it was last reviewed by the Full Bench. 11
`Party may withdraw by consent (s 170MN Cwlth) 12
`139BPA.(1) In this section-- 13
"relevant party" to an agreement means-- 14
(a) for a party to the agreement who is an employer or an industrial 15
organisation of employers--a party who is an industrial 16
organisation of employees; or 17
(b) for a party to the agreement who is an industrial organisation of 18
employees--a party who is an employer or an industrial 19
organisation of employers. 20
`(2) A party to a certified agreement may, with the consent of all the 21
relevant parties, notify the Commission that the party does not want to 22
remain bound by the agreement. 23
`(3) The Commission may declare that the notifier is no longer bound if 24
satisfied that it is in the public interest to make the declaration. 25
agreements may be terminated by parties (s 170MN Cwlth) 26
`Certified
`139BP.(1) All the parties to a certified agreement may jointly notify the 27
Commission that they want the agreement to be terminated. 28
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`(2) The Commission may declare that the agreement is terminated if 1
satisfied that it is in the public interest to make the declaration. 2
`Party affected by industrial action may withdraw (s 170MM Cwlth) 3
`139BQA.(1) If a party to a certified agreement engages in industrial 4
action about a matter dealt with in the agreement, another party affected by 5
the industrial action may apply to the Commission for a declaration that the 6
applicant is no longer bound by the agreement. 7
`(2) The Commission may declare that the applicant is no longer bound 8
if satisfied it is in the public interest to make the declaration. 9
of certified agreements 10
`Enforcement
`139BQ. An agreement certified under this Division is enforceable in the 11
same way as an award. 12
`Division 3--Enterprise flexibility agreements 13
may apply for approval of implementation of enterprise 14
`Employer
flexibility agreement (s 170NA Cwlth) 15
`139CA.(1) An employer carrying on an enterprise may prepare an 16
agreement about an industrial matter relating to the enterprise. 17
`(2) The employer may apply to the Commission to approve 18
implementation of the agreement. 19
entitled to be heard (s 170NB Cwlth) 20
`Organisations
`139CB.(1) On an application to the Commission-- 21
(a) to approve implementation of an agreement; or 22
(b) to extend an enterprise flexibility agreement's period of operation; 23
an industrial organisation of employees is entitled to be heard if it is bound 24
by an award or industrial agreement that binds the employer for work 25
performed in the enterprise. 26
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`(2) As soon as practicable after the application is made, the Commission 1
must notify (as prescribed by regulation) each industrial organisation of 2
employees entitled to be heard that-- 3
(a) the application has been made; and 4
(b) the industrial organisation is entitled to be heard on the 5
application. 6
`(3) This section does not affect any other right of an industrial 7
organisation of employees or another entity to intervene or be heard, or to 8
apply to intervene or be heard, on an application. 9
of implementation of agreement (s 170NC Cwlth) 10
`Approval
`139CC.(1) In this section-- 11
"majority of employees" means a majority of the persons who were 12
employees covered by the agreement as at the end of a day specified in 13
the application that is not earlier than 7 days before the application was 14
made. 15
`(2) The Commission must, and may only, approve implementation of 16
an agreement if satisfied-- 17
(a) the agreement applies only to the enterprise mentioned in 18
section 139CA and is only about an industrial matter; and 19
(b) the wages and employment conditions of the employees covered 20
by the agreement are regulated by 1 or more awards or industrial 21
agreements that bind the employer; and 22
(c) the agreement covers all of the employees-- 23
(i) whose wages and employment conditions are regulated by 1 24
or more awards or industrial agreements that bind the 25
employer; and 26
(ii) who the employer employs to perform work in the enterprise; 27
and 28
(d) the agreement does not disadvantage the employees covered by 29
the agreement about their employment conditions; and 30
(e) the agreement includes procedures for preventing and settling 31
disputes between the persons bound by the agreement about 32
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matters arising under the agreement; and 1
(f) the agreement either-- 2
(i) establishes a process for the persons bound by the agreement 3
to consult each other about changes to the organisation or 4
performance of work in the enterprise; or 5
(ii) states that it is not appropriate for the agreement to provide 6
for the consultation; and 7
(g) during the negotiations for the agreement, reasonable steps were 8
taken to consult the employees covered by the agreement about 9
the agreement; and 10
(h) before the application for approval was made, reasonable steps 11
were taken to inform the employees covered by the agreement 12
of-- 13
(i) the agreement's terms; and 14
(ii) the effect of the terms; and 15
(iii) in particular, the procedures mentioned in paragraph (e); and 16
(iv) the intention to apply to the Commission to approve 17
implementation, and the consequences of approval; and 18
(i) a majority of employees have (on or before the day specified in 19
the application) genuinely agreed to be bound by the agreement, 20
even if they agreed at different times; and 21
(j) the agreement specifies its period of operation. 22
`(3) Under subsection (2)(d), an agreement disadvantages employees in 23
relation to their employment conditions only if-- 24
(a) approval of implementation would result in the reduction of the 25
employee's entitlements or protection under an award or 26
industrial agreement; and 27
(b) in the context of the employment conditions considered as a 28
whole, the Commission considers the reduction is against the 29
public interest. 30
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Commission must refuse to approve implementation of 1
`When
agreements (s 170ND Cwlth) 2
`139CD.(1) The Commission must not approve implementation if it 3
considers a provision of the agreement is inconsistent with-- 4
(a) a provision of Part 4, Division 2 or 3 or Part 11, Division 4; or 5
(b) an order of the Commission under the Divisions. 6
`(2) The Commission may refuse to approve implementation if satisfied 7
that approving implementation would be against the public interest because 8
of exceptional circumstances. 9
`(3) Approving implementation is not against the public interest merely 10
because the agreement is inconsistent with principles established by the Full 11
Bench that apply when determining wages and employment conditions by 12
awards. 13
`(4) The Commission must not approve implementation if satisfied-- 14
(a) the employer has, in connection with negotiating the agreement, 15
contravened 1 or more of the following provisions-- 16
· section 139FA (Employer not to discriminate between union 17
members and non-union members when negotiating 18
agreements) 19
· section 139CD(3) (Representation of employees in 20
negotiations for enterprise flexibility agreements) 21
· section 342 (Prejudice of employees by reason of membership 22
of industrial organisation) 23
· section 343 (Prejudice of employee by reason of 24
nonmembership of industrial organisation) 25
· section 344 (Conduct in relation to holder of conscientious 26
objector's certificate); or 27
(b) the employer has caused an entity, in connection with 28
negotiations for the agreement, to engage in conduct that, had the 29
employer engaged in it, would be a contravention by the 30
employer of any of the provisions mentioned in paragraph (a); or 31
(c) an entity has, for the employer-- 32
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(i) engaged in the conduct mentioned in paragraph (b); or 1
(ii) caused another entity to engage in the conduct. 2
`(5) Subsection (4) does not apply if the Commission is satisfied the 3
contravention or conduct, and its effects, have been fully remedied. 4
`(6) The Commission may refuse to approve implementation, or may 5
adjourn an application to approve the implementation, if it is satisfied the 6
employer did not-- 7
(a) before or as soon as practicable after negotiations for the 8
agreement began, notify each industrial organisation that was at 9
the time an eligible union about the negotiations; or 10
(b) give the industrial organisation a reasonable opportunity to take 11
part in the negotiations and to agree, before the application for 12
approval was made, to be bound by the agreement. 13
`(7) Subsection (6) does not apply to an industrial organisation if the 14
employer could not reasonably have known when, or within a reasonable 15
period after, the negotiations for the agreement began that the organisation 16
was an eligible union. 17
`(8) When deciding what action to take under subsection (6), the 18
Commission must consider whether it considers the failure was intentional 19
and other relevant circumstances. 20
`(9) The Commission must not approve implementation if it considers 21
the agreement contains a discriminatory provision. 22
`(10) This section applies despite section 139CC (Approval of 23
implementation of agreement). 24
agreement may provide for its amendment (s 170NE Cwlth) 25
`How
`139CE.(1) If an agreement provides for any of its terms to be amended 26
by a later agreement applying to the enterprise, the Commission must not 27
approve implementation of the agreement unless satisfied the agreement 28
specifies-- 29
(a) the amendable terms; and 30
(b) when and how the terms can be amended. 31
`(2) To avoid doubt, it is declared that subsection (1) does not apply to an 32
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agreement so far as the obligations under the agreement can change because 1
of the terms of the agreement itself. 2
options open to Commission instead of refusing to approve 3
`Other
implementation (s 170NF Cwlth) 4
`139CF.(1) This section applies if the Commission has grounds not to 5
approve the implementation of an agreement under any of the following 6
sections-- 7
· section 139CC (Approval of implementation of agreement) 8
· section 139CD (When Commission must refuse to approve 9
implementation of agreements) 10
· section 139CE (How agreement may provide for its 11
amendment). 12
`(2) The Commission may accept an undertaking about the agreement's 13
operation from a person who-- 14
(a) would be bound by the agreement; and 15
(b) the Commission considers to be the appropriate person to give 16
the undertaking. 17
`(3) The Commission may approve the implementation if satisfied the 18
undertaking meets its concerns. 19
`(4) If the undertaking is not complied with, the Commission may 20
terminate the agreement after giving the persons bound by it an opportunity 21
to be heard. 22
`(5) Before refusing to approve the implementation, the Commission in 23
any case must give-- 24
(a) the employer an opportunity to amend the agreement by an 25
instrument made with the approval (obtained as directed by the 26
Commission) of a majority of the persons who, as at the end of a 27
day specified in the direction, were employees covered by the 28
agreement; or 29
(b) the persons who would be bound by the agreement an 30
opportunity to do what is necessary for the Commission to be 31
able to approve implementation. 32
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to protect interests of certain employees 1
`Commission
(s 170NG Cwlth) 2
`139CG.(1) The Commission must comply with this section in 3
performing its functions and exercising its powers in relation to an 4
application to approve the implementation of an agreement. 5
`(2) The Commission must identify any employees who may be covered 6
by the agreement but whose interests may not have been sufficiently taken 7
into account in the negotiations for, or the terms of, the agreement. 8
`(3) Examples of employees whose interest may not have been taken 9
into account are-- 10
(a) women; and 11
(b) persons whose first language is not English; and 12
(c) young persons. 13
`(4) When deciding whether it is satisfied under section 139CC(3)(f) and 14
(g), the Commission must do what is necessary to find out-- 15
(a) whether the employees were consulted about the agreement and 16
informed of the matters mentioned in section 139CC(3)(g) and 17
(h) in ways appropriate to their particular circumstances and 18
needs; and 19
(b) whether the effects on the relevant employees of the agreement's 20
terms were properly explained to the employees. 21
`(5) If it considers there has been a failure to consult, inform or explain 22
as mentioned in subsection (4), the Commission must make the orders it 23
considers necessary to remedy the failure and its effects. 24
for preventing and settling disputes (s 170NI Cwlth) 25
`Procedures
`139CH. Dispute prevention and settling provisions in an enterprise 26
flexibility agreement may empower the Commission to settle disputes, if 27
the Commission approves of the provisions. 28
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relevant when business has distinct parts 1
`Provisions
(s 170LC Cwlth) 2
`139CHA.(1) If, on an application to approve implementation of an 3
agreement, the Commission is satisfied-- 4
(a) the agreement applies only to a part of a business, or to 2 or more 5
parts of the same business, carried on by a single employer; and 6
(b) it is appropriate to regard the part, or each of the parts, as a 7
geographically distinct part of the business; 8
the part is taken to be, and to have been when the agreement was made, a 9
geographically distinct part of the business. 10
`(2) If a business is made up of 2 or more geographically distinct parts, 11
the Commission may approve implementation of-- 12
(a) an agreement that applies to an enterprise formed by the entire 13
business; or 14
(b) 1 or more agreements each relating to an enterprise formed 15
by 1 or more of the distinct parts. 16
`(3) However, an enterprise flexibility agreement that applies to an entire 17
business cannot be in force at the same time as an enterprise flexibility 18
agreement that applies to 1 or more parts of the business. 19
of enterprise flexibility agreements (s 170NJ Cwlth) 20
`Operation
`139CI.(1) An enterprise flexibility agreement comes into force when its 21
implementation is approved. 22
`(2) An enterprise flexibility agreement remains in force unless-- 23
(a) it is terminated by the Commission under section 139CF(4); or 24
(b) because of 1 or more orders or declarations under the relevant 25
sections-- 26
(i) it is terminated; or 27
(ii) no employer is bound by the agreement; or 28
(iii) no employee or industrial organisation of employees is 29
bound by the agreement; or 30
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(c) it is replaced by a new enterprise flexibility agreement or by a 1
certified agreement. 2
`(3) In this section-- 3
"relevant sections" means-- 4
· section 139CM (Enterprise flexibility agreements may be 5
amended or terminated by Full Bench) 6
· section 139COA (Person bound may withdraw by consent) 7
· section 139CO (Enterprise flexibility agreements may be 8
terminated by persons bound) 9
· section 139CPA (Persons affected by industrial action may 10
withdraw). 11
of enterprise flexibility agreements (s 170NK Cwlth) 12
`Extension
`139CJ.(1) In this section-- 13
"majority of employees" means a majority of the persons who were 14
employees covered by the agreement as at the end of a day specified in 15
the application not earlier than 7 days before the application was made. 16
`(2) The Commission must extend the period of operation of an 17
enterprise flexibility agreement, as required by the employer's application, if 18
it is satisfied a majority of employees have genuinely agreed to the 19
proposed extension on or before the day specified in the application, even if 20
they agreed at different times. 21
`(3) However, the Commission must not extend the period of operation 22
if-- 23
(a) the period, or the period as last extended, has ended; or 24
(b) an industrial organisation of employees, that is entitled under 25
section 139CB to be heard on the application, satisfies the 26
Commission that the extension would not be in the interests of 27
the employees covered by the agreement. 28
`(4) If the Commission considers the period of operation, or the period 29
as last extended, will end before the application is decided, it may extend the 30
period until the application is determined. 31
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of enterprise flexibility agreements (s 170NL Cwlth) 1
`Effect
`139CK. While an enterprise flexibility agreement is in force-- 2
(a) subject to paragraph (b), the agreement's terms prevail over the 3
terms of an award or industrial agreement to the extent of the 4
inconsistency; and 5
(b) the agreement has no effect so far as it is inconsistent with a 6
certified agreement certified before implementation of the 7
agreement was approved; and 8
(c) a term of the agreement can be amended by the employer, but 9
only as provided in either of the following sections-- 10
· section 139CL (Amendment of enterprise flexibility 11
agreement as provided in the agreement) 12
· section 139CM (Enterprise flexibility agreements may be 13
amended or terminated by Full Bench); and 14
(d) the agreement may only be amended to remove ambiguity or 15
uncertainty; and 16
(e) the Commission must not exercise any powers to amend the 17
agreement other than under this Division. 18
of enterprise flexibility agreement as provided in the 19
`Amendment
agreement (s 170NM Cwlth) 20
`139CL.(1) This section applies to an application to the Commission to 21
approve implementation of an agreement (the "amendment") amending an 22
enterprise flexibility agreement (the "main agreement") that provides for 23
any of its terms to be amended by a later enterprise flexibility agreement. 24
`(2) The Commission must deal with the application as if-- 25
(a) it were an application to the Commission to approve 26
implementation of the main agreement as amended; and 27
(b) the main agreement as in force before the amendment takes effect 28
were not in force. 29
`(3) The Commission may approve implementation of the amendment 30
only if it is satisfied-- 31
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(a) the amendment was made as required by the main agreement; 1
and 2
(b) the enterprise to which the amendment applies is the same as the 3
enterprise to which the main agreement applies; and 4
(c) the amendment provides only for amending the main agreement 5
and for matters incidental to amending it. 6
flexibility agreements may be amended or terminated by 7
`Enterprise
Full Bench (s 170NN Cwlth) 8
`139CM.(1) While an enterprise flexibility agreement is in force, the Full 9
Bench may review the agreement's operation after giving the persons 10
bound by the agreement an opportunity to be heard. 11
`(2) The Full Bench may do so only-- 12
(a) on its own initiative; or 13
(b) on application by a person bound by the agreement. 14
`(3) If the Full Bench finds the continued operation of the agreement 15
would be unfair to the employees covered by the agreement, it may-- 16
(a) terminate the agreement; or 17
(b) accept an undertaking about the agreement's operation; or 18
(c) permit the employer to amend the agreement by an instrument 19
made with the approval (obtained as directed by the 20
Commission) of a majority of the persons who, as at the end of a 21
specified day, were employees covered by the agreement. 22
`(4) If an undertaking is not complied with, the Full Bench may 23
terminate the agreement after giving the persons bound by it an opportunity 24
to be heard. 25
of enterprise flexibility agreements (s 170NN Cwlth) 26
`Review
`139CN. The Full Bench must review the operation of each enterprise 27
flexibility agreement-- 28
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(a) within 3 years after it was made; and 1
(b) within 3 years after it was last reviewed by the Full Bench. 2
`Person bound may withdraw by consent (s 170NO Cwlth) 3
`139COA.(1) A person bound by an enterprise flexibility agreement 4
may, with the consent of all other persons bound, notify the Commission 5
that the person does not want to remain bound by the agreement. 6
`(2) The Commission may declare that the person is no longer bound if 7
satisfied it is in the public interest to make the declaration. 8
flexibility agreements may be terminated by persons 9
`Enterprise
bound (s 170NO Cwlth) 10
`139CO.(1) All the persons bound by an enterprise flexibility agreement 11
may jointly notify the Commission that they want the agreement to be 12
terminated. 13
`(2) The Commission may declare that the agreement is terminated if 14
satisfied it is in the public interest to make the declaration. 15
`Persons affected by industrial action may withdraw (s 170NN Cwlth) 16
`139CPA.(1) If a person bound by an enterprise flexibility agreement 17
engages in industrial action about a matter dealt with in the agreement, 18
another person bound by the agreement who is affected by the industrial 19
action may apply to the Commission for a declaration that the applicant is 20
no longer bound by the agreement. 21
`(2) The Commission may declare that the applicant is no longer bound 22
if satisfied it is in the public interest to make the declaration. 23
union may agree to be bound by enterprise flexibility 24
`Eligible
agreement (s 170NP Cwlth) 25
`139CP.(1) If-- 26
(a) an employer has prepared an agreement under this Division; and 27
(b) the Commission has not yet approved implementation of the 28
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agreement (whether or not an application for approval has been 1
made); 2
an eligible union may notify the employer that it agrees to be bound by the 3
agreement if and when the Commission approves its implementation. 4
`(2) If an amendment made under this Division is proposed, or made but 5
not yet effective, an eligible union may notify the employer that it agrees to 6
be bound-- 7
(a) if the union is already bound by the agreement--by the 8
amendment if and when it takes effect; or 9
(b) if it is not already bound by the agreement--by the agreement as 10
amended if and when the amendment takes effect. 11
`(3) Subsection (2) applies even if a previous amendment of the 12
agreement has taken effect. 13
`(4) While an enterprise flexibility agreement is in force because of 14
section 139CI, an eligible union may notify the employer that it agrees to be 15
bound by the agreement on and after a specified day. 16
`(5) Subsection (4) applies whether or not an amendment of the 17
agreement has taken effect. 18
`(6) A notice under subsection (1), (2) or (4) cannot be revoked. 19
`(7) An eligible union that has agreed under subsection (1), (2) or (4) is 20
bound by the agreement concerned. 21
`(8) However, after an amendment (however made) of the agreement 22
takes effect, or a further amendment takes effect, the union-- 23
(a) is no longer bound by the agreement as in force before the 24
amendment or further amendment took effect; and 25
(b) is not bound by the agreement as amended; 26
unless, before the amendment or further amendment took effect, the union 27
agreed under subsection (2) to be bound by the amendment or further 28
amendment. 29
`(9) Subsection (8) does not apply to an amendment made under 30
section 139CK(d). 31
`(10) If, immediately before an amendment made under 32
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section 139CK(d) takes effect, the union is still bound by the agreement, the 1
union is bound by the agreement as amended. 2
`Division 4--Immunity from civil liability for protected action during 3
bargaining period 4
of Division (s 170PA Cwlth) 5
`Object
`139DA.(1) The object of this Division is to give effect, in particular 6
situations, to Australia's international obligation to provide for a right to 7
strike. 8
`(2) This obligation arises under-- 9
(a) Article 8 of the Economic, Social and Cultural Rights Covenant; 10
and 11
(b) the Freedom of Association and Protection of the Right to 12
Organise Convention 1948 (the English text of the Preamble, and 13
Parts I and II, of which is set out in Schedule 11); and 14
(c) the Right to Organise and Collective Bargaining Convention 1949 15
(the English text of the Preamble, and Articles 1 to 6, of which is 16
set out in Schedule 12); and 17
(d) the Constitution of the International Labour Organisation; and 18
(e) customary international law about freedom of association and the 19
right to strike. 20
`(3) The Parliament considers it necessary to provide specific legislative 21
protection for the right to strike, subject to limitations compatible with the 22
existence of the right, when-- 23
(a) an industrial dispute exists involving an employer and 1 or more 24
industrial organisations whose members are-- 25
(i) employed by the employer to perform work in a single 26
enterprise; and 27
(ii) covered by an award or industrial agreement; and 28
(b) the employer and 1 or more of the organisations are negotiating 29
an agreement under Division 2. 30
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purpose (s 170PC Cwlth) 1
`Division's
`139DC. This Division provides legal immunity for certain industrial 2
action (defined as protected action) happening during a particular period 3
(defined as the bargaining period). 4
of bargaining period (s 170PD Cwlth) 5
`Initiation
`139DD.(1) This section applies if, for an industrial matter-- 6
(a) an employer; or 7
(b) an industrial organisation of employees; 8
wants to negotiate a certified agreement about the employees who are 9
employed in the single enterprise mentioned. 10
`(2) Subject to section 139DP(5)(b), the employer or organisation (the 11
"initiating party") may initiate a period (the "bargaining period") for 12
negotiating the proposed agreement. 13
`(3) The bargaining period is initiated by the initiating party notifying-- 14
(a) the other proposed party to the agreement; and 15
(b) the Commission; 16
that the initiating party intends to try, or to continue to try to reach a certified 17
agreement with the party about an industrial matter. 18
to accompany notice (s 170PE Cwlth) 19
`Particulars
`139DE. The notice must state the following particulars-- 20
(a) the single enterprise to be covered by the proposed agreement; 21
(b) the proposed parties to the agreement; 22
(c) the matters the initiating party proposes the agreement should 23
deal with; 24
(d) the industrial matter to which the proposed agreement relates; 25
(e) the proposed period of the agreement; 26
(f) other matters that may be prescribed by regulation. 27
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bargaining period begins (s 170PF Cwlth) 1
`When
`139DF. The bargaining period begins at the end of 7 days after-- 2
(a) the day the notice was given; or 3
(b) if the notice was given to different parties on different days--the 4
later or latest of the days the notice was given. 5
action for which immunity is provided (s 170PG Cwlth) 6
`Protected
`139DG.(1) This section identifies action ("protected action") to which 7
section 139DM (Immunity for protected action) applies. 8
`(2) During the bargaining period-- 9
(a) an industrial organisation of employees that is a negotiating party; 10
or 11
(b) a member of the organisation who is employed by the employer; 12
or 13
(c) an officer or employee of the organisation acting in that capacity; 14
is entitled to organise or engage in industrial action directly against the 15
employer to support or advance claims made by the organisation that are the 16
subject of the relevant industrial matter. 17
`(3) The organising of, or engaging in, the industrial action is protected 18
action. 19
`(4) During the bargaining period, the employer is entitled to lock out all 20
or any of the employees to be covered by the agreement from their 21
employment-- 22
(a) to support or advance claims made by the employer that are the 23
subject of the relevant industrial matter; or 24
(b) to respond to industrial action by any of the employees. 25
`(5) The lockout is protected action. 26
`(6) An employer locks out employees from their employment if the 27
employer prevents the employees from performing work under their 28
employment contracts without terminating the contracts. 29
`(7) If the employer locks out employees, the employer may refuse to 30
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pay any remuneration to the employees for the period of the lockout. 1
`(8) An employee's employment is not affected by the lockout, other 2
than for the purposes prescribed by regulation. 3
`(9) However, this section applies subject to sections 139DH to 139DK. 4
hours' notice of action must be given (s 170PH Cwlth) 5
`72
`139DH.(1) Action taken under section 139DG(2) by an organisation, 6
member, officer, or employee is protected action only if the organisation 7
has given the other negotiating party at least 72 hours' notice of the intention 8
to take the action. 9
`(2) Action taken under section 139DG(4) by the employer is protected 10
action-- 11
(a) only if the employer has given the other negotiating party at least 12
72 hours' notice of the intention to take the action; and 13
(b) so far as it relates to a particular employee, only if, at least 14
72 hours before the action is taken, the employer has-- 15
(i) notified the employee of the intended action; or 16
(ii) taken other reasonable steps to notify (whether or not by 17
written notice) the employee of the intended action. 18
`(3) A notice under subsection (2)(a) or (b)(i) must state the nature of the 19
intended action and the day when it will begin. 20
must precede industrial action (s 170PI Cwlth) 21
`Negotiation
`139DI.(1) Industrial action engaged in by a member of an industrial 22
organisation of employees is protected action only if the organisation has, 23
before the member begins to engage in the industrial action-- 24
(a) tried to reach agreement with the employer; and 25
(b) if the Commission has made an order under section 139EC about 26
the negotiations--complied with the order so far as it applies to 27
the organisation. 28
`(2) Industrial action engaged in by an employer is protected action only 29
if the employer has, before the employer begins to engage in the industrial 30
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action-- 1
(a) tried to reach agreement with the industrial organisations of 2
which the employees are members; and 3
(b) if the Commission has made an order under section 139EC about 4
the negotiations--complied with the order so far as it applies to 5
the employer. 6
happens if Commission orders a ballot under s 190 7
`What
(s 170PJ Cwlth) 8
`139DJ. If the Commission has ordered a vote of an industrial 9
organisation's members be taken by secret ballot about the subject matter of 10
the industrial dispute, the organising of, or engaging in, industrial action 11
after the making of the order by-- 12
(a) the organisation; or 13
(b) a member of the organisation; or 14
(c) an officer or employee of the organisation acting in that capacity; 15
is protected action only if the ballot has been taken and the industrial action 16
has been approved by a majority of the valid votes cast in the ballot. 17
action must be properly authorised (s 170PK Cwlth) 18
`Industrial
`139DK.(1) Industrial action engaged in by a member of an industrial 19
organisation of employees is protected action only if, before the industrial 20
action begins-- 21
(a) the industrial action is authorised by-- 22
(i) the organisation's committee of management; or 23
(ii) someone authorised by the committee to authorise the 24
industrial action; and 25
(b) if the rules of the organisation provide for how the industrial 26
action must be authorised--the industrial action is authorised 27
under the rules; and 28
(c) notice of the giving of the authorisation is given to the Industrial 29
Registrar. 30
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`(2) Industrial action is taken to be authorised under the rules even 1
though a technical breach happened in authorising the industrial action, if the 2
person who committed the breach acted in good faith. 3
`(3) Examples of a technical breach are-- 4
(a) a contravention of the organisation's rules; and 5
(b) an error or omission in complying with this Act; and 6
(c) the taking part in the making of a decision by a committee of 7
management, or in the making of the decision by members, of 8
the organisation by a person who was not eligible to take part in 9
the making of the decision. 10
`(4) Industrial action is taken to have been authorised under the rules, and 11
to have been authorised before the industrial action began, unless the 12
Commission declares that the industrial action was not authorised under the 13
rules. 14
`(5) An application for the Commission's declaration must be made 15
within 6 months after a notice is given to the Industrial Registrar under 16
subsection (1)(c). 17
`(6) So far as the rules of an industrial organisation of employees provide 18
for how industrial action (that the organisation is entitled to organise or 19
engage in under section 139DG) is to be authorised, the rules do not 20
contravene section 204 unless the way provided for contravenes the section. 21
happens if application to certify agreement is not made within 22
`What
21 days (s 170PL Cwlth) 23
`139DL. Unless an application to the Commission to certify an 24
agreement is made within 21 days after the day when a memorandum of 25
agreement is made, nothing done by a party to the agreement during the 26
bargaining period is protected action. 27
for protected action (s 170PM Cwlth) 28
`Immunity
`139DM.(1) An action does not lie under any law for industrial action 29
that is protected action unless the industrial action has involved or is likely 30
to involve unlawful-- 31
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(a) personal injury; or 1
(b) wilful destruction of, or damage to, property; or 2
(c) taking, keeping or use of property. 3
`(2) Subsection (1) does not prevent an action for defamation being 4
brought for anything that happened during the industrial action. 5
bargaining period ends (s 170PN Cwlth) 6
`When
`139DN. The bargaining period ends when-- 7
(a) an agreement under Division 2 is entered into between the 8
employer and any 1 or more of the other negotiating parties; or 9
(b) the initiating party notifies the other negotiating party that the 10
initiating party no longer wants to reach an agreement under 11
Division 2 with the other party; or 12
(c) the Commission terminates the bargaining period. 13
of Commission to suspend or terminate bargaining period 14
`Power
(s 170PO Cwlth) 15
`139DO.(1) The Commission may suspend or terminate the bargaining 16
period, after giving the negotiating parties an opportunity to be heard, if it is 17
satisfied-- 18
(a) a negotiating party who has organised, is organising or has taken 19
industrial action to support or advance claims the subject of the 20
relevant industrial matter-- 21
(i) is not genuinely trying to reach an agreement with the other 22
negotiating parties; or 23
(ii) has not complied with a Commission order about negotiating 24
in good faith; or 25
(b) industrial action being taken to support or advance claims the 26
subject of the relevant industrial matter is threatening-- 27
(i) to endanger the life, personal safety, health or welfare of the 28
population or of part of it; or 29
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(ii) to cause significant damage to the economy or an important 1
part of it; or 2
(c) if the bargaining period relates to employees employed in a part 3
of a single enterprise--the initiating party is not complying with 4
an award, industrial agreement, order or direction of the 5
Commission about another part of the single business or another 6
workplace in the single business. 7
`(2) The Commission may only act under subsection (1) on a ground 8
stated in subsection (1)(b)-- 9
(a) on its own initiative; or 10
(b) on an application by the negotiating party or the Minister. 11
`(3) The Commission may only act under subsection (1) on a ground 12
stated in subsection (1)(a) and (c) on an application by the negotiating party. 13
`(4) The Commission's power to suspend or terminate the bargaining 14
period because of particular circumstances may be exercised whether the 15
circumstances happened before or during the bargaining period. 16
`(5) Section 139DM (Immunity for protected action) does not apply to 17
anything done by-- 18
(a) a negotiating party; or 19
(b) a member, officer or employee of an organisation of employees 20
that is a negotiating party; 21
in connection with the relevant industrial matter when the bargaining period 22
is suspended. 23
happens if Commission terminates a bargaining period under 24
`What
s 139DO(1)(b)? (s 170PP Cwlth) 25
`139DP.(1) If a bargaining period initiated by an industrial organisation 26
of employees is terminated on the ground set out in section 139DO(1)(b), 27
the Commission must immediately begin to take action to settle the 28
industrial dispute. 29
`(2) If, to settle the industrial dispute, the Commission proposes to make 30
`a new award, or to amend an existing award, to cover employees whose 31
employment conditions are the subject of the matter, it must-- 32
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(a) for a new award--make the new award as a paid rates award; or 1
(b) for the amendment of an existing award--amend the award to be 2
a paid rates award; 3
for the employees employed in the single enterprise to which the bargaining 4
period relates. 5
`(3) When deciding the terms to be included in an award that it proposes 6
to make or amend, the Commission-- 7
(a) must base its decision on the merits of the matters under 8
consideration; and 9
(b) need not follow principles that generally apply in deciding wages 10
and employment conditions by making awards under this Act. 11
`(4) Despite subsection (2), the new award or amendment award need 12
not be a paid rates award if the parties to the industrial dispute have agreed 13
to the award not being a paid rates award. 14
`(5) An award made or amended under subsection (2) must specify a 15
period during which-- 16
(a) the award may only be amended to remove ambiguity or 17
uncertainty; and 18
(b) the parties to the award may not initiate a bargaining period under 19
section 139DD for negotiating an agreement about matters dealt 20
with in the award. 21
5--Conciliation in relation to proposed agreements 22
`Division
may conciliate proposed agreements under this Part 23
`Commission
(s 170QH Cwlth) 24
`139EA.(1) This section applies if the Commission becomes aware that 25
a party wants to negotiate, or is negotiating, a certified agreement or 26
enterprise flexibility agreement with another party. 27
`(2) The Commission may try, by conciliation, to assist the making of 28
the agreement if it considers conciliation would assist. 29
`(3) If a party asks the Commission to exercise powers under 30
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subsection (2), the Commission must decide as quickly as possible whether 1
or not to do so. 2
and orders to assist the making of agreements 3
`Directions
(s 170QI Cwlth) 4
`139EB.(1) The Full Bench may give directions and make orders to 5
assist the making of agreements under this Part. 6
`(2) A direction or order has effect subject to an order of the Court. 7
orders about negotiations for agreements under this 8
`Commission
Part (s 170QK Cwlth) 9
`139EC.(1) The Commission may make orders to-- 10
(a) ensure the parties negotiating an agreement under this Part 11
negotiate in good faith; or 12
(b) promote the efficient conduct of negotiations for the agreement; 13
or 14
(c) otherwise assist the making of the agreement. 15
`(2) In particular, the Commission may order a party to take, or not to 16
take, specified action. 17
`(3) In deciding what orders to make, the Commission-- 18
(a) must consider the conduct of each of the parties to the 19
negotiations and, in particular, whether the party concerned has-- 20
(i) agreed to meet at reasonable times proposed by another 21
party; or 22
(ii) attended meetings that the party had agreed to attend; or 23
(iii) complied with negotiating procedures agreed to by the parties; 24
or 25
(iv) capriciously added or withdrawn items for negotiation; or 26
(v) disclosed relevant information as appropriate for the 27
negotiations; or 28
(vi) failed to negotiate with 1 or more of the parties; or 29
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(vii) in or in connection with the negotiations, contravened 1
section 139ED(3) by failing to negotiate with a person who 2
is entitled under the section to represent an employee; and 3
(b) may consider-- 4
(i) proposed conduct of any of the parties, including proposed 5
conduct of a type mentioned in paragraph (a); and 6
(ii) other relevant matters. 7
of employees in negotiations for enterprise flexibility 8
`Representation
agreements (s 170RB Cwlth) 9
`139ED.(1) This section applies to negotiations between employer and 10
employees for the making of an enterprise flexibility agreement. 11
`(2) An officer or employee of an industrial organisation of employees 12
(the "official") may represent an employee if-- 13
(a) the employee is a member of the organisation; and 14
(b) the organisation is entitled to represent the employee's industrial 15
interests; and 16
(c) the official is authorised under the organisation's rules, or by its 17
committee of management, to represent the employee's interests; 18
and 19
(d) the employee has informed the employer that the employee wants 20
to be represented by the official for the negotiations. 21
`(3) An employer must not fail to negotiate with a person who is entitled 22
under subsection (2) to represent an employee. 23
Maximum penalty for subsection(3)--80 penalty units. 24
6--Provisions common to certified agreements and enterprise 25
`Division
flexibility agreements 26
not to discriminate between union members and 27
`Employer
non-union members when negotiating agreements (s 170RA Cwlth) 28
`139FA. When negotiating the terms of an agreement under this Part, an 29
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employer must not discriminate between the employer's employees-- 1
(a) because some of the employees are members of an industrial 2
organisation of employees while others are not members; or 3
(b) because some of the employees are members of a particular 4
industrial organisation of employees, while others are not 5
members or are members of a different industrial organisation. 6
of wage rates 7
`Components
`139FB.(1) Each rate of wages provided for by a certified agreement or 8
enterprise flexibility agreement (whether before or after the commencement 9
of this section) as payable to adult employees, or employees who are 10
seniors, is taken to consist of, and to be expressed by reference to-- 11
(a) the guaranteed minimum wage declared at the time the agreement 12
is or was made and a margin; or 13
(b) if after the making of the agreement there has been made a 14
declaration of a general ruling that amends the guaranteed 15
minimum wage--the guaranteed minimum wage as amended by 16
the declaration last made and a margin. 17
`(2) Subsection (1) does not apply to a rate of wages provided for by an 18
agreement that immediately before the commencement of this section 19
provides for a rate of wages equal to or less than the guaranteed minimum 20
wage contained in the declaration of a general ruling last made before the 21
commencement, until the rate of wages provided for by the agreement 22
becomes greater than the guaranteed minimum wage last declared before 23
the greater rate is provided for. 24
of appeal decisions on agreements 25
`Effect
`139FC. If-- 26
(a) a decision of the Industrial Court-- 27
(i) on appeal from a decision of the Industrial Commission; or 28
(ii) on a case stated by the Industrial Commission; or 29
(b) a decision of the Full Bench on appeal from a Commissioner; 30
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affects a certified agreement or enterprise flexibility agreement, the 1
Commission must immediately amend the agreement to give effect to the 2
Court's or Commission's decision. 3
between agreements and contracts 4
`Inconsistency
`139FD.(1) A certified agreement or enterprise flexibility agreement 5
prevails over any contract of service that is-- 6
(a) in force when the agreement becomes enforceable; or 7
(b) made while the agreement remains in force; 8
to the extent of any inconsistency between the agreement and the contract. 9
`(2) The contract only has effect as if it were amended so far as is 10
necessary to make it conform to the agreement. 11
`(3) Under this section, there is no inconsistency between an agreement 12
and a contract only because the contract provides for employment 13
conditions more favourable to the employee than the agreement.'. 14
of s 159 (Entitlement to long service leave) 15
Amendment
Section 159(1)-- 16
Clause16.(1)
omit all words from `Subject to' to `170, the', insert `The'. 17
(2) Section 159-- 18
insert-- 19
`(3) This section applies subject to adjustments made for-- 20
(a) a seasonal employee under either of the following sections-- 21
· section 169 (Long service leave in meat works and sugar 22
industry) 23
· section 170 (Long service leave for other seasonal workers); 24
and 25
(b) an employee with an entitlement to long service leave based on 26
continuous service calculated under section 164 (Continuous 27
service of casual employees).'. 28
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of s 164 (Continuous service of casual employees) 1
Replacement
Section 164-- 2
Clause17.
omit, insert-- 3
service of casual employees 4
`Continuous
`164.(1) When calculating an employee's entitlement to long service 5
leave under this Division, service of an employee who is employed more 6
than once by the same employer over a period constitutes continuous 7
service with the employer even if the employment is broken during the 8
period. 9
`(2) However, the continuous service ends if the employment is broken 10
by the passing of more than 3 months between the end of 1 employment 11
contract and the next employment contract. 12
`(3) Subsection (1) applies despite the fact that-- 13
(a) any of the employment is not full-time employment; or 14
(b) the employee is employed by the employer under 2 or more 15
employment contracts; or 16
(c) the employee would, apart from this section, be regarded as 17
engaged in casual employment; or 18
(d) the employee has engaged in other employment during the 19
period. 20
`(4) When calculating the employee's continuous service under section 21
159-- 22
(a) subject to subsection (5), service by the employee before 23 June 23
1990 must not be taken into account; and 24
(b) if the employee only obtained the entitlement because of the 25
enactment of this section under the Industrial Relations Reform 26
Act 1994--the employee's service between 23 June 1990 and the 27
commencement of the section must not be taken into account; 28
and 29
(c) subject to subsection (2), any period when the employee was not 30
in employment with the employer must be taken into account. 31
`(5) Subsection (4)(a) does not affect an employee's entitlement to long 32
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service leave under-- 1
(a) an award or industrial agreement made before 23 June 1990; or 2
(b) the Industrial Conciliation and Arbitration Act 1961. 3
`(6) This section does not limit an entitlement to long service leave 4
calculated other than under this section.1'. 5
of new s 165A 6
Insertion
Clause18. After section 165-- 7
insert-- 8
and manner of taking long service leave--casual employees 9
`Time
`165A.(1) An employer may agree with an employee who has an 10
entitlement to long service leave based on continuous service calculated 11
under section 164 that the entitlement may be taken in the form of its 12
full-time equivalent. 13
14
Example--
15
If an employee--
16
(a) is entitled to be paid for 260 hours long service leave; and
17
(b) works under an award that provides for a full-time working week of
18
40 ordinary hours;
19
the employee and the employer may agree that the employee take 61/2 weeks leave
20
(260 ÷ 40 = 61/2).
`(2) This section applies subject to a provision in an award, industrial 21
agreement, certified agreement or enterprise flexibility agreement about the 22
employee's long service leave.'. 23
1 See section 160, which provides other rules for calculating an employee's
entitlement to long service leave.
This section does not affect an employees entitlement to long service leave
accrued under section 164 of the Industrial Relations Act 1990 between 23 June
1990 and the commencement of the section because this is protected under
section 20 of the Acts Interpretation Act 1954.
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of s 166 (Payment for long service leave) 1
Amendment
Section 166(5)-- 2
Clause19.
omit, insert-- 3
`(5) The amount payable to an employee mentioned in section 164(1) for 4
long service leave is calculated using the formula-- 5
number of hours X hourly rate 6
in which the number of hours is calculated using the formula-- 7
actual service X 13 8
52 15 9
`(5A) In subsection (5)-- 10
"actual service" means the total ordinary hours actually worked by an 11
employee during the period of continuous service to which the 12
entitlement to long service leave relates; 13
"hourly rate" means the hourly rate for ordinary time payable to the 14
employee-- 15
(a) if the employee takes the long service leave--on the day the 16
employee starts the leave; or 17
(b) otherwise--on the day immediately before the entitlement 18
becomes payable; 19
"number of hours" means the number of hours for which payment is to 20
be made for long service leave. 21
22
Example of subsection (5)--
23
An employee who worked 15 600 ordinary hours over a 15 year period and is
24
being paid an hourly rate of $10 would be entitled to be paid--
25
$10 x (15 600 x 13)
26
( 52 15)
27
= $10 x 260
28
= $2 600'.
of Pt 11 (General conditions of employment) 29
Amendment
Part 11, Division 4-- 30
Clause20.
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omit, insert-- 1
3A--Parental leave 2
`Division
`Subdivision 1--Preliminary 3
of Division (s 170KA Cwlth) 4
`Object
`174AA. The object of this Division is to give effect to the Family 5
Responsibilities Convention and the Family Responsibilities 6
Recommendation. 7
principles (Sch 14 cl 1 Cwlth) 8
`Basic
`174AB.(1) Under this Division, an employee who gives birth to a child, 9
and her spouse, are entitled to unpaid parental leave (totalling 52 weeks) to 10
care for the child. 11
`(2) However, an employee's entitlement to leave under this Division is 12
reduced by the employee's other entitlements to parental leave other than 13
under this Division. 14
`(3) To obtain parental leave under this Division, an employee must 15
satisfy specified requirements about-- 16
(a) length of service; and 17
(b) notice periods; and 18
(c) information and documentation. 19
`(4) Except for 1 week at the time of the birth, an employee and the 20
employee's spouse must take parental leave at different times. 21
`(5) An employee may take other leave (annual leave for example) in 22
conjunction with parental leave, but this will reduce the amount of parental 23
leave the employee may take. 24
`(6) Parental leave may be varied in certain circumstances. 25
`(7) In general, if a variation is foreseeable, an employee must give notice 26
of it, but if a variation is not foreseeable notice is not required (for example, 27
when the birth is premature). 28
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`(8) Cancellation of parental leave by the employer is limited to situations 1
when-- 2
(a) the employee will not become, or ceases to be, the child's 3
primary care-giver; or 4
(b) there has been a mistake in calculating the amount of leave to 5
which the employee is entitled. 6
`(9) An employee who takes parental leave is, in most circumstances, 7
entitled to return to the position the employee held before the leave was 8
taken. 9
`(10) Parental leave does not break an employee's continuity of service. 10
(Sch 14 cl 2 Cwlth) 11
`Definitions
`174AC. In this Division-- 12
"continuous service" means-- 13
(a) service under an unbroken contract of employment other than as 14
a casual or seasonal employee; and 15
(b) includes a period of leave or absence authorised by-- 16
(i) the employer; or 17
(ii) an award, industrial agreement, certified agreement, 18
enterprise flexibility agreement or order; or 19
(iii) a contract of employment; or 20
(iv) this Division; 21
"Division 3A long paternity leave" has the meaning given by 22
section 174CA; 23
"Division 3A maternity leave" has the meaning given by section 174BA; 24
"Division 3A short paternity leave" has the meaning given by 25
section 174CA; 26
"employee" includes a part-time employee, but not a casual or seasonal 27
employee; 28
"law" includes an unwritten law; 29
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"long paternity leave" means Division 3A long paternity leave or other 1
leave-- 2
(a) that an employee is entitled to, has been applied for or been 3
granted for the birth of his spouse's child, other than under this 4
Division (for example, under an award, order or agreement); and 5
(b) that is analogous to Division 3A long paternity leave, or would be 6
analogous except that-- 7
(i) it is paid leave; or 8
(ii) different rules govern eligibility for it; or 9
(iii) it can be taken for different periods; 10
"maternity leave" means Division 3A maternity leave or other leave-- 11
(a) that an employee is entitled to, has been applied for or been 12
granted for her pregnancy or her child's birth, other than under 13
this Division (for example, under an award, order or agreement); 14
and 15
(b) that is analogous to Division 3A maternity leave, or would be 16
analogous except that-- 17
(i) it is paid leave; or 18
(ii) it can begin before the estimated date of birth; or 19
(iii) different rules govern eligibility for it; or 20
(iv) it can be taken for different periods; 21
"medical certificate" means a certificate signed by a doctor; 22
"parental leave" means maternity leave or paternity leave; 23
"paternity leave" means short paternity leave or long paternity leave; 24
"short paternity leave" means Division 3A short paternity leave or other 25
leave-- 26
(a) that an employee is entitled to, has been applied for or been 27
granted for the birth of his spouse's child, other than under this 28
Division (for example, under an award, order or agreement); and 29
(b) that is analogous to Division 3A short paternity leave, or would 30
be analogous except that-- 31
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(i) it is paid leave; or 1
(ii) different rules govern eligibility for it; or 2
(iii) it can be taken for different periods; 3
"spouse" of an employee includes-- 4
(a) a former spouse; and 5
(b) a person of the opposite sex to the employee who lives with the 6
employee in a marriage-like relationship, although not legally 7
married to the employee. 8
2--Maternity leave 9
`Subdivision
to maternity leave (Sch 14 cl 3 Cwlth) 10
`Entitlement
`174BA. An employee who becomes pregnant is entitled to 1 period of 11
unpaid leave ("Division 3A maternity leave") for the child's birth and to 12
be the child's primary care-giver. 13
of entitlement to maternity leave (Sch 14 cl 3 Cwlth) 14
`Conditions
`174BB.(1) An employer must grant Division 3A maternity leave to an 15
employee if-- 16
(a) she notifies the employer of the estimated date of birth at least 17
70 days before the date; and 18
(b) she applies for the leave at least 28 days before the first day of the 19
leave; and 20
(c) the application states the first and last days of the leave; and 21
(d) the first day of the leave is the estimated date of birth or a later 22
day; and 23
(e) she submits with the application a medical certificate that states-- 24
(i) she is pregnant and the estimated date of birth; or 25
(ii) she has given birth to a living child and the date of birth; and 26
(f) she submits with the application a statutory declaration stating-- 27
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(i) the first and last days of all the following-- 1
(A) short paternity leave for which her spouse intends to 2
apply, or has applied, for the child's birth; 3
(B) long paternity leave for which her spouse intends to 4
apply, or has applied, for the child's birth; 5
(C) annual or long service leave for which her spouse 6
intends to apply or has applied, instead of or in 7
conjunction with, the paternity leave; and 8
(ii) that she-- 9
(A) will be the child's primary care-giver throughout the 10
maternity leave; and 11
(B) will not engage in conduct inconsistent with her contract 12
of employment while on maternity leave; and 13
(g) it is reasonable to expect that she will complete, or she had 14
completed, at least 1 year of continuous service with the 15
employer on the day before the estimated date of birth. 16
`(2) Subsection (1)(a) and (g) 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 notify the 21
employer before the actual date of birth of the estimated date of 22
birth--she notified the employer as soon as reasonably 23
practicable; and 24
(c) otherwise--the medical certificate submitted under 25
subsection (1)(e) also states the date that, as at the 70th day before 26
the actual date of 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
`(3) Subsection (1)(b) does not apply if-- 31
(a) it was not reasonably practicable for the employee to comply with 32
the paragraph because the child was premature, or for some other 33
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compelling reason; and 1
(b) the employee submits the application as soon as reasonably 2
practicable before, on or after the first day of the leave; and 3
(c) if the child is born before the employee submits the 4
application--the first day of the leave is the day of the child's 5
birth or a later day. 6
`(4) If subsection (3)(c) applies, subsection (1)(d) does not apply. 7
`(5) If, because the child was premature, the first day of the leave is 8
earlier than the estimated date of birth, a reference in this Division to 1 year 9
of continuous service means a period of continuous service equal to 1 year 10
less the period-- 11
(a) beginning on the first day of the leave; and 12
(b) ending on the estimated date of birth. 13
`(6) When an employee applies for maternity leave (the "substitute 14
leave") to be taken instead of maternity leave for which she has already 15
applied (the "original leave")-- 16
(a) if a document, submitted under subsection (1)(e) or (f) with the 17
application for the original leave, applies to the application for the 18
substitute leave--the document is not required to be submitted 19
with the latter application; and 20
(b) if the employer grants the substitute leave--the employer-- 21
(i) must cancel the original leave if it has been granted; or 22
(ii) must not give the original leave if it has not been granted. 23
of maternity leave (Sch 14 cl 4 Cwlth) 24
`Period
`174BC.(1) The Division 3A maternity leave-- 25
(a) if the child has not been born-- 26
(i) must begin on the later of-- 27
(A) the day stated in the application as the first day of the 28
leave; or 29
(B) the estimated date of birth; and 30
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(ii) must not extend beyond the first anniversary of the 1
estimated date of birth; and 2
(b) if the child has been born-- 3
(i) must begin on the later of-- 4
(A) the day stated in the application as the first day of the 5
leave; or 6
(B) the child's date of birth; and 7
(ii) must not extend beyond the child's first birthday; and 8
(c) must not overlap with the spouse's leave (other than short 9
paternity leave) stated in the relevant statutory declaration; and 10
(d) must be for a continuous period equal to the shorter of-- 11
(i) the period applied for; or 12
(ii) the period of entitlement. 13
`(2) The period of entitlement is 52 weeks less the total of all the 14
following-- 15
(a) unpaid leave (other than maternity leave) or paid sick leave that 16
the employer has already granted to the employee for the 17
pregnancy; and 18
(b) annual or long service leave the employee has applied to take 19
instead of, or in conjunction with, maternity leave for the 20
pregnancy; and 21
(c) the spouse's leave stated in the relevant statutory declaration. 22
reduced by other maternity leave available to employee 23
`Entitlement
(Sch 14 cl 5 Cwlth) 24
`174BD.(1) In this section-- 25
"period of alternative leave" means the leave mentioned in 26
subsection (2)(b); 27
"relevant section" means 1 of the following-- 28
· section 174BB (Conditions of entitlement to maternity leave) 29
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· section 174BC (Period of maternity leave); 1
"unadjusted period of maternity leave" means any Division 3A 2
maternity leave that a relevant section would, apart from this section, 3
require the employer to grant to the employee for the child's birth. 4
`(2) This section applies if, had this Division not been enacted-- 5
(a) an employee could have applied (for her pregnancy or her child's 6
birth) for maternity leave to which paragraphs (a) and (b) of the 7
definition of "maternity leave" in section 174AC applies, whether 8
or not she has in fact applied; and 9
(b) if she had applied as required by the rules governing the 10
maternity leave, she would have a legally enforceable right to the 11
leave, whether or not she has in fact applied. 12
`(3) If the period of alternative leave is at least as long as the unadjusted 13
period of maternity leave, the employer must not grant maternity leave to 14
the employee under a relevant section. 15
`(4) Otherwise, the employer must grant to the employee, instead of the 16
unadjusted period of maternity leave, a period of maternity leave that-- 17
(a) equals the difference between the unadjusted period of maternity 18
leave and the period of alternative leave; and 19
(b) begins immediately after the period of alternative leave if the 20
employer grants it; and 21
(c) otherwise complies with section 174BC. 22
annual or long service leave instead of, or in conjunction 23
`Taking
with, maternity leave (Sch 14 cl 6 Cwlth) 24
`174BE. If an employee applies to take annual or long service leave 25
instead of, or in conjunction with, Division 3A maternity leave, the 26
employer must grant the annual or long service leave if-- 27
(a) had this Division not been enacted, the employer would have 28
been obliged to grant it; or 29
(b) the total of all the following is not more than 52 weeks-- 30
(i) the annual or long service leave; 31
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(ii) annual or long service leave that the employer has already 1
granted to the employee instead of, or in conjunction with, 2
the maternity leave; 3
(iii) the maternity leave; 4
(iv) unpaid leave (other than maternity leave) or paid sick leave 5
that the employer has already granted to the employee for the 6
pregnancy; 7
(v) the spouse's leave under section 174BB(1)(f) stated in the 8
relevant statutory declaration. 9
maternity leave (Sch 14 cl 7 Cwlth) 10
`Extending
`174BF.(1) An employee may apply to extend the Division 3A 11
maternity leave granted to her. 12
`(2) The employer must grant the application if-- 13
(a) the application is given to the employer at least 14 days before the 14
last day of the leave; and 15
(b) the application states the first or last day of the extended leave; 16
and 17
(c) unless the things mentioned in section 174BB(1)(f)(i) are still as 18
stated in the relevant statutory declaration--the employee submits 19
with the application a statutory declaration stating the things 20
mentioned; and 21
(d) the period of leave, if extended, would not exceed the period of 22
entitlement under section 174BC, calculated at the time of 23
granting the application. 24
`(3) The maternity leave may be extended again only by agreement 25
between the employer and the employee. 26
maternity leave (Sch 14 cl 8 Cwlth) 27
`Shortening
`174BG.(1) An employee may apply to shorten the Division 3A 28
maternity leave granted to her. 29
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`(2) The employer may grant the application if it states the last day of the 1
shortened leave. 2
on maternity leave of failure to complete 1 year of continuous 3
`Effect
service (Sch 14 cl 9 Cwlth) 4
`174BH. The employer may cancel Division 3A maternity leave if-- 5
(a) it has been granted on the basis that it is reasonable to expect the 6
employee will complete a period of at least 1 year of continuous 7
service with the employer on a particular day; and 8
(b) the employee does not complete the period on the day. 9
on maternity leave if pregnancy terminates or child dies 10
`Effect
(Sch 14 cl 10 Cwlth) 11
`174BI.(1) This section applies if an employer has granted Division 3A 12
maternity leave to an employee and-- 13
(a) the pregnancy terminates other than by the birth of a living child; 14
or 15
(b) she gives birth to a living child but the child later dies. 16
`(2) If an event mentioned in subsection (1)(a) or (b) happens before the 17
leave begins, the employer may cancel the leave before it begins. 18
`(3) If the leave has begun, the employee may notify the employer that 19
she wishes to return to work. 20
`(4) If the employee does so, the employer must notify her of the day 21
when she must return to work. 22
`(5) The day must be within 4 weeks after the employer received the 23
notice. 24
`(6) Also, despite subsections (3) to (5), if the leave has begun, the 25
employer may notify the employee of the day when she must return to 26
work. 27
`(7) The day must be at least 4 weeks after the employer gives the notice. 28
`(8) If the employee returns to work, the employer must cancel the rest 29
of the leave. 30
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on maternity leave of ceasing to be the primary care-giver 1
`Effect
(Sch 14 cl 11 Cwlth) 2
`174BJ.(1) This section applies if-- 3
(a) during a substantial period beginning on or after the beginning of 4
an employee's Division 3A maternity leave, the employee is not 5
the child's primary care-giver; and 6
(b) having regard to the length of the period and to any other relevant 7
circumstances, it is reasonable to expect the employee will not 8
again become the child's primary care-giver within a reasonable 9
period. 10
`(2) The employer may notify the employee of the day when she must 11
return to work. 12
`(3) The day must be at least 4 weeks after the employer gives the notice. 13
`(4) If the employee returns to work, the employer must cancel the rest 14
of the leave. 15
to work after maternity leave (Sch 14 cl 12 Cwlth) 16
`Return
`174BK.(1) This section applies when an employee returns to work after 17
Division 3A maternity leave. 18
`(2) The employer must employ her in the position she held immediately 19
before-- 20
(a) if she was transferred to safe duties under section 174BL 21
(Transfer to safe duties because of pregnancy)--the transfer; or 22
(b) if she began working part-time because of the pregnancy--she 23
began working part-time; or 24
(c) otherwise--she began maternity leave. 25
`(3) If-- 26
(a) the position no longer exists; but 27
(b) she is qualified for, and can perform the duties of, other positions 28
in the employer's employment; 29
the employer must employ her in whichever of the other positions is nearest 30
in status and remuneration to the position. 31
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to safe duties because of pregnancy 1
`Transfer
`174BL. If, in the opinion of a doctor-- 2
(a) an illness or risk arising out of an employee's pregnancy; or 3
(b) hazards connected with an employee's work having regard to the 4
employee's pregnancy; 5
make it inadvisable for the employee to continue existing duties, the 6
employer may-- 7
(c) assign the employee to other duties that-- 8
(i) the employee can efficiently perform; and 9
(ii) nearest in status and remuneration to the existing duties; or 10
(d) direct the employee to take leave for the period that the doctor 11
considers necessary. 12
`Subdivision 3--Paternity leave 13
to paternity leave (Sch 14 cl 13 Cwlth) 14
`Entitlement
`174CA. For the birth of his spouse's child, an employee is entitled to-- 15
(a) up to 1 week of unpaid paternity leave ("Division 3A short 16
paternity leave") beginning on the child's date of birth; and 17
(b) unpaid paternity leave ("Division 3A long paternity leave") to 18
be the child's primary care-giver. 19
of entitlement to short paternity leave 20
`Conditions
(Sch 14 cl 14 Cwlth) 21
`174CB.(1) An employer must grant Division 3A short paternity leave 22
to an employee if-- 23
(a) at least 70 days before the estimated date of birth, he gives to the 24
employer-- 25
(i) a notice stating his intention to apply for the leave and how 26
long (up to 1 week) the leave is to last; and 27
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(ii) a medical certificate that names his spouse and states she is 1
pregnant and the estimated date of birth; and 2
(b) he applies for the leave as soon as reasonably practicable on or 3
after the first day of the leave; and 4
(c) the application states the first and last days of the leave; and 5
(d) the leave is for not more than 1 week; and 6
(e) unless the first day of the leave is the estimated date of birth-- 7
(i) he submits with the application a medical certificate that 8
names his spouse and states the actual date of birth; and 9
(ii) the first day of the leave is the actual date of birth; and 10
(f) it is reasonable to expect that he will complete, or he had 11
completed, at least 1 year of continuous service with the 12
employer on the day before the estimated date of birth. 13
`(2) Subsection (1)(a) and (f) does not apply if-- 14
(a) because the child was premature, or for some other compelling 15
reason, it was not reasonably practicable for the employee to 16
comply with subsection (1)(a); and 17
(b) if it was reasonably practicable for the employee to give to the 18
employer (before the actual date of birth) the notice and certificate 19
mentioned in subsection (1)(a)--he gave them as soon as 20
reasonably practicable; and 21
(c) otherwise--the medical certificate submitted under 22
subsection (1)(e)(i) also states the date that, as at the 70th day 23
before the actual date of birth, was the estimated date of birth; and 24
(d) it is reasonable to expect the employee will complete, or the 25
employee had completed, 1 year of continuous service with the 26
employer on the day before the estimated date of birth. 27
of entitlement to long paternity leave (Sch 14 cl 15 Cwlth) 28
`Conditions
`174CC.(1) An employer must grant Division 3A long paternity leave to 29
an employee if-- 30
(a) he applies for the leave at least 70 days before the first day of the 31
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of leave; and 1
(b) the application states the first and last days of the leave; and 2
(c) he submits with the application a medical certificate that names 3
his spouse and states-- 4
(i) she is pregnant and the estimated date of birth; or 5
(ii) she has given birth to a living child and the date of birth; and 6
(d) he submits with the application a statutory declaration stating-- 7
(i) the first and last days of all-- 8
(A) unpaid leave (other than maternity leave) or paid sick 9
leave for which his spouse intends to apply, or has 10
applied, for the pregnancy; and 11
(B) maternity leave for which his spouse intends to apply, 12
or has applied, for the child's birth; and 13
(C) annual or long service leave, for which his spouse 14
intends to apply, or has applied, instead of, or in 15
conjunction with, maternity leave; and 16
(ii) that he-- 17
(A) will be the child's primary care-giver throughout the 18
paternity leave; and 19
(B) will not engage in conduct inconsistent with his contract 20
of employment while on paternity leave; and 21
(e) it is reasonable to expect that he will complete, or he had 22
completed, at least 1 year of continuous service with the 23
employer on the day before the first day of the leave. 24
`(2) Subsection (1)(a) does not apply if-- 25
(a) it was not reasonably practicable for the employee to comply with 26
the subsection because the child was premature, or for some 27
other compelling reason; and 28
(b) the employee submits the application as soon as reasonably 29
practicable before, on or after the first day of the leave. 30
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of long paternity leave (Sch 14 cl 15 Cwlth) 1
`Period
`174CD.(1) The Division 3A long paternity leave-- 2
(a) if the child has not been born-- 3
(i) must begin on the later of-- 4
(A) the day stated in the application as the first day of the 5
leave; or 6
(B) the estimated date of birth; and 7
(ii) must not extend beyond the first anniversary of the 8
estimated date of birth; and 9
(b) if the child has been born-- 10
(i) must begin on the later of-- 11
(A) the day stated in the application as the first day of the 12
leave; or 13
(B) the child's date of birth; and 14
(ii) must not extend beyond the child's first birthday; and 15
(c) must not overlap with the spouse's leave stated in the relevant 16
statutory declaration; and 17
(d) must be for a continuous period equal to the shorter of-- 18
(i) the period applied for; or 19
(ii) the period of entitlement. 20
`(2) The period of entitlement is 52 weeks less the total of all the 21
following-- 22
(a) if the employee has notified the employer of his intention to apply 23
for short paternity leave for the child's birth--the short paternity 24
leave; and 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; and 28
(c) the spouse's leave stated in the relevant statutory declaration. 29
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reduced by other paternity leave available to employee 1
`Entitlement
(Sch 14 cl 16 Cwlth) 2
`174CE.(1) In this section-- 3
"period of alternative leave" means the leave mentioned in 4
subsection (2)(b); 5
"relevant section" means 1 of the following-- 6
· section 174CB (Conditions of entitlement to short paternity leave) 7
· section 174CC (Conditions of entitlement to long paternity leave); 8
"unadjusted period of paternity leave" means any Division 3A short 9
paternity leave or Division 3A long paternity leave that a relevant 10
section would, apart from this section, require the employer to grant to 11
the employee for the child's birth. 12
`(2) This section applies if, had this Division not been enacted-- 13
(a) an employee could have applied (for the birth of his spouse's 14
child) for short paternity leave or long paternity leave to which 15
paragraphs (a) and (b) of the definition of "short paternity leave" 16
or "long paternity leave" in section 174AC apply, whether or not 17
he has in fact applied; and 18
(b) if he had applied as required by the rules governing the paternity 19
leave--he would have a legally enforceable right to the leave, 20
whether or not he has in fact applied. 21
`(3) If the period of alternative leave is at least as long as the unadjusted 22
period of paternity leave, the employer must not grant leave to the employee 23
under a relevant section. 24
`(4) Otherwise, the employer must grant to the employee, instead of the 25
unadjusted period of paternity leave, a period of short paternity leave, or 26
long paternity leave, that-- 27
(a) equals the difference between the unadjusted period of paternity 28
leave and the period of alternative leave; and 29
(b) begins immediately after the period of alternative leave if the 30
employer grants it; and 31
(c) otherwise complies with a relevant section. 32
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annual or long service leave instead of, or in conjunction 1
`Taking
with, paternity leave (Sch 14 cl 17 Cwlth) 2
`174CF. If an employee applies to take annual or long service leave, 3
instead of, or in conjunction with, Division 3A short paternity leave or 4
Division 3A long paternity leave, the employer must grant the annual or 5
long service leave if-- 6
(a) had this Division not been enacted, the employer would have 7
been 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 to the employee instead of, or in conjunction with, 12
the paternity leave; 13
(iii) the paternity leave; 14
(iv) the spouse's leave stated under section 174CC(1)(d) in the 15
relevant statutory declaration. 16
long paternity leave (Sch 14 cl 18 Cwlth) 17
`Extending
`174CG.(1) An employee may apply to extend the Division 3A long 18
paternity leave granted to him. 19
`(2) The employer must grant 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 or last day of the extended leave; 23
and 24
(c) unless the things mentioned in section 174CC(1)(d)(i) are still as 25
stated in the relevant statutory declaration--the employee submits 26
with the application a statutory declaration stating the things 27
mentioned; and 28
(d) the period of leave, if extended, would not exceed the period of 29
entitlement under section 174CD(2), calculated at the time of 30
granting the application. 31
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`(3) The paternity leave may be extended again only by agreement 1
between the employer and the employee. 2
paternity leave (Sch 14 cl 19 Cwlth) 3
`Shortening
`174CH.(1) An employee may apply to shorten the Division 3A 4
paternity leave granted to him. 5
`(2) The employer may grant the application if it states the last day of the 6
shortened leave. 7
on long paternity leave of failure to complete 1 year of 8
`Effect
continuous service (Sch 14 cl 20 Cwlth) 9
`174CI. The employer may cancel Division 3A long paternity leave if-- 10
(a) it has been granted on the basis that it is reasonable to expect the 11
employee will complete a period of at least 1 year of continuous 12
service with the employer on a particular day; and 13
(b) the employee does not complete the period on the day. 14
on long paternity leave if pregnancy terminates or child dies 15
`Effect
(Sch 14 cl 21 Cwlth) 16
`174CJ.(1) This section applies if an employer has granted Division 3A 17
long paternity leave to an employee and-- 18
(a) his spouse's pregnancy terminates other than by the birth of a 19
living child; or 20
(b) his spouse gives birth to a living child but the child later dies. 21
`(2) If an event mentioned in subsection (1)(a) or (b) happens before the 22
leave begins, the employer may cancel the leave before it begins. 23
`(3) If the leave has begun, the employee may notify the employer that he 24
wishes to return to work. 25
`(4) If the employee does so, the employer must notify him of the day 26
when he must return to work. 27
`(5) The day must be within 4 weeks after the employer received the 28
notice. 29
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`(6) Also, despite subsections (3) to (5) the leave has begun, the 1
employer may notify the employee of the day when he must return to work. 2
`(7) The day must be at least 4 weeks after the employer gives the notice. 3
`(8) If the employee returns to work, the employer must cancel the rest 4
of the leave. 5
on paternity leave of ceasing to be the primary care-giver 6
`Effect
(Sch 14 cl 22 Cwlth) 7
`174CK.(1) This section applies if-- 8
(a) during a substantial period beginning on or after the beginning of 9
an employee's Division 3A long paternity leave, the employee is 10
not the child's primary care-giver; and 11
(b) having regard to the length of the period and to any other relevant 12
circumstances, it is reasonable to expect the employee will not 13
again become the child's primary care-giver within a reasonable 14
period. 15
`(2) The employer may notify the employee of the day he must return to 16
work. 17
`(3) The day must be at least 4 weeks after the employer gives the notice. 18
`(4) If the employee returns to work, the employer must cancel the rest 19
of the leave. 20
to work after paternity leave (Sch 14 cl 23 Cwlth) 21
`Return
`174CL.(1) This section applies when an employee returns to work after 22
Division 3A long paternity leave. 23
`(2) The employer must employ him in the position he held immediately 24
before he began paternity leave. 25
`(3) If-- 26
(a) the position no longer exists; but 27
(b) he is qualified for, and can perform the duties of, other positions 28
in the employer's employment; 29
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the employer must employ him in whichever of the other positions is 1
nearest in status and remuneration to the position. 2
`Subdivision 4--General 3
duty if excessive leave granted or if maternity leave and 4
`Employee's
paternity leave overlap (Sch 14 cl 24 Cwlth) 5
`174DA.(1) This section applies if-- 6
(a) the total of all the following is more than 52 weeks-- 7
(i) maternity leave granted by an employer to an employee for a 8
pregnancy; 9
(ii) annual or long service leave granted by the employer to the 10
employee instead of, or in conjunction with, the maternity 11
leave; 12
(iii) unpaid leave (other than maternity leave) or paid sick leave 13
granted by the employer to the employee for the pregnancy; 14
(iv) paternity leave granted by an employer to the employee's 15
spouse; 16
(v) annual or long service leave granted by the employer to the 17
employee's spouse instead of, or in conjunction with, the 18
paternity leave; or 19
(b) leave granted to the employee overlaps with leave granted to the 20
employee's spouse. 21
`(2) The employee must give to her employer a notice-- 22
(a) if subsection (1)(a) applies--stating that the total is more than 23
52 weeks and specifying the amount of the excess; and 24
(b) if subsection (1)(b) applies--specifying the period of overlap; 25
and 26
(c) suggesting how the employer may vary or cancel leave granted to 27
her (other than leave she has already taken) to reduce or remove 28
the excess or overlap; and 29
(d) unless the variations and cancellations suggested will remove the 30
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excess or overlap--setting out the suggestions her spouse has 1
made or will make under subsection (3)(c). 2
`(3) The employee's spouse must give to his employer a notice-- 3
(a) if subsection (1)(a) applies--stating that the total is more than 4
52 weeks and specifying the amount of the excess; and 5
(b) if subsection (1)(b) applies--specifying the period of overlap; 6
and 7
(c) suggesting how the employer may vary or cancel leave granted to 8
him (other than leave he has already taken) to reduce or remove 9
the excess or overlap; and 10
(d) unless the variations or cancellations suggested will remove the 11
excess or overlap--setting out the suggestions his spouse has 12
made or will make under subsection (2)(c). 13
`(4) The variations and cancellations suggested must be of a kind that, if 14
they are all made, the excess or overlap will be removed. 15
`(5) An employer who receives a notice under subsection (2) or (3) may 16
vary or cancel leave as suggested in the notice, or as agreed with the 17
employee or her spouse. 18
to warn replacement employee that employment is only 19
`Employer
temporary (Sch 14 cl 25 Cwlth) 20
`174DB. An employer must not employ a person-- 21
(a) to replace an employee while the employee is on parental leave; 22
or 23
(b) to replace an employee who, while another employee is on 24
parental leave, must perform the duties of the position held by the 25
other employee; 26
unless the employer has informed the person-- 27
(c) that the person's employment is only temporary; and 28
(d) about the rights of the employee who is on parental leave. 29
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leave and continuity of service (Sch 14 cl 26 Cwlth) 1
`Parental
`174DC. A period of parental leave does not break an employee's 2
continuity 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 award, industrial 6
agreement, certified agreement, enterprise flexibility agreement or 7
order; or 8
(c) as prescribed by regulation. 9
of Division on other laws (Sch 14 cl 27 Cwlth) 10
`Effect
`174DD.(1) To avoid doubt, this Division has effect despite-- 11
(a) another law of the State; or 12
(b) an award, industrial agreement, certified agreement, enterprise 13
flexibility agreement or order. 14
`(2) However, this Division is not intended to exclude or limit the 15
operation of the law, award, industrial agreement, certified agreement, 16
enterprise flexibility agreement or order so far as it can operate concurrently 17
with this Division. 18
for adoption leave (s 170KC Cwlth) 19
`Regulations
`174DE. The regulations may provide for employers to give employees 20
unpaid adoption leave. 21
`Division 4--Dismissal 22
1--Object and interpretation 23
`Subdivision
of Division (s 170CA Cwlth) 24
`Object
`175AA. The object of this Division is to give effect to-- 25
(a) the Termination of Employment Convention; and 26
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(b) the Termination of Employment Recommendation 1982 (the 1
English text of which is set out in Schedule 13); and 2
(c) the Discrimination (Employment and Occupation) Convention; 3
and 4
(d) the Discrimination (Employment and Occupation) 5
Recommendation; and 6
(e) the Family Responsibilities Convention; and 7
(f) the Family Responsibilities Recommendation. 8
of expressions (s 170CB Cwlth) 9
`Meaning
`175AB. If an expression used in this Division is also used in the 10
Termination of Employment Convention, it has the same meaning as in the 11
Convention. 12
of employees from Division (s 170CC Cwlth) 13
`Exclusion
`175AC.(1) Section 175BC(1)(a) does not apply to-- 14
(a) a casual, part-time or seasonal employee; or 15
(b) an employee engaged by the hour or day; or 16
(c) an employee engaged for a specific period or task. 17
`(2) Subdivisions 4 and 5 do not apply to-- 18
(a) a casual or seasonal employee; or 19
(b) an employee engaged by the hour or day; or 20
(c) an employee engaged for a specific period or task; or 21
(d) an employee with less than 1 year of continuous service. 22
`(3) The regulations may exclude specified employees from the operation 23
of specified provisions of this Division if the exclusion is-- 24
(a) allowed by paragraph 2 of Article 2 of the Termination of 25
Employment Convention; and 26
(b) limited to provide the safeguards required by paragraph 3 of 27
Article 2. 28
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`Subdivision 2--Requirements for lawful dismissal 1
dismissal is unlawful (ss 170DE, 170DF and 170DG Cwlth) 2
`When
`175BA.(1) An employer must not dismiss an employee-- 3
(a) in contravention of an order under section 175DA; or 4
(b) unless there is a valid reason-- 5
(i) related to the employee's conduct, capacity or performance; 6
or 7
(ii) based on the operational requirements of the employer's 8
undertaking, establishment or service. 9
`(2) A reason is not valid if-- 10
(a) having regard to the employee's conduct, capacity or 11
performance and the operational requirements, the dismissal is 12
harsh, unjust or unreasonable; or 13
(b) it is any of the following reasons-- 14
(i) temporary absence from work because of illness or injury 15
(other than an injury within the meaning of Division 5); 16
(ii) seeking office as, or acting or having acted in the capacity of, 17
an employees' representative; 18
(iii) filing a complaint, or taking part in proceedings, against an 19
employer involving alleged violation of laws or recourse to 20
competent administrative authorities; 21
(iv) an attribute for which discrimination is prohibited under the 22
Anti-Discrimination Act 1991; 23
(v) family responsibilities; 24
(vi) absence from work during parental leave. 25
`(3) Despite subsection (2), a matter mentioned in subsection (2)(b)(iv) 26
is a valid reason for dismissal if-- 27
(a) the reason is based on the inherent requirements of the particular 28
position; or 29
(b) for staff of an institution conducted to conform with the 30
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doctrines, tenets, beliefs or teachings of a particular religion or 1
creed--the dismissal is done in good faith to avoid injury to the 2
religious susceptibilities of adherents of the religion or creed. 3
to defend against allegations before dismissal 4
`Opportunity
(s 170DC Cwlth) 5
`175BB.(1) An employer may dismiss an employee for reasons related 6
to the employee's conduct, capacity or performance only if the employer 7
first gives the employee a reasonable opportunity to defend against the 8
allegations made. 9
`(2) Subsection (1) does not apply if the employer could not reasonably 10
be expected to give the employee the opportunity. 11
of dismissal or compensation to be given (s 170DB Cwlth) 12
`Notice
`175BC.(1) An employer may dismiss an employee only if-- 13
(a) the employee has been given-- 14
(i) the period of notice required by subsection (2); or 15
(ii) compensation; or 16
(b) the employee engages in misconduct of a type that would make it 17
unreasonable to require the employer to continue the employment 18
during the notice period. 19
`(2) The minimum period of notice is-- 20
(a) if the employee's continuous service is-- 21
(i) not more than 1 year--1 week; and 22
(ii) more than 1 year but not more than 3 years--2 weeks; and 23
(iii) more than 3 years but not more than 5 years--3 weeks; and 24
(iv) more than 5 years--4 weeks; and 25
(b) increased by 1 week if the employee-- 26
(i) is over 45 years old; and 27
(ii) has completed at least 2 years of continuous service with the 28
employer. 29
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`(3) A regulation may prescribe matters that must be disregarded when 1
calculating continuous service under subsection (2). 2
`(4) The compensation must at least equal the total of the amounts the 3
employer would have been liable to pay the employee if the employee's 4
employment had continued until the end of the required notice period. 5
`(5) The total must be calculated on the basis of-- 6
(a) the ordinary hours worked by the employee; and 7
(b) the amounts payable to the employee for the hours, including (for 8
example) allowances, loadings and penalties; and 9
(c) any other amounts payable under the employee's employment 10
contract. 11
of Subdivision not an offence (s 170EG Cwlth) 12
`Contravention
`175BD. A contravention of this Subdivision is not an offence. 13
`Subdivision 3--Remedies for unlawful dismissal 14
only on application (s 170EA Cwlth) 15
`Orders
`175CA.(1) The Commission may make an order under this 16
Subdivision only if it has received an application from-- 17
(a) an employee; or 18
(b) an industrial organisation-- 19
(i) whose rules entitle it to represent the industrial interests of 20
the employee; and 21
(ii) acting on behalf of the employee with the employee's consent. 22
`(2) An application must be made-- 23
(a) within 21 days after the dismissal; or 24
(b) within the further period the Commission allows on an 25
application made during or after the 21 days. 26
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before application heard (s 170ED Cwlth) 1
`Conciliation
`175CB.(1) For the purposes of this section, the parties to an application 2
are, unless the Commission otherwise orders-- 3
(a) the employer; and 4
(b) the employee; and 5
(c) if the application is made under section 175CA(1)(b)--the 6
industrial organisation. 7
`(2) Before the Commission hears an application, the parties to the 8
application must hold a conference-- 9
(a) to explore the possibility of resolving the issues by conciliation; 10
and 11
(b) to ensure the parties are fully informed of the possible 12
consequences of further proceedings on the application. 13
for unlawful dismissal other than under s 175EC 14
`Orders
(s 170EE Cwlth) 15
`175CC.(1) If satisfied an employer has dismissed an employee contrary 16
to this Division other than section 175EC (Employer must notify CES of 17
proposed dismissals), the Commission may make the orders it considers 18
appropriate to put the employee in the same position (as nearly as can be 19
done) as if the employee had not been dismissed. 20
`(2) The orders the Commission may make include an order-- 21
(a) declaring the dismissal to have contravened this Division; or 22
(b) for a contravention of a provision other than section 175BC 23
(Notice of dismissal or compensation to be given) or 175EC 24
(Employer must notify CES of proposed dismissals)--requiring 25
the employer to reinstate the employee; or 26
(c) requiring the employer to pay the employee compensation. 27
28
Examples of subsection (2)(c)--
29
The Commission may order the employer to pay the employee an amount it
30
considers appropriate as remuneration for wages lost by the employee between the
31
day the dismissal took effect and the day when the Commission's order is complied
32
with.
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`(3) Neither section 175CB (Conciliation before application heard) nor 1
this section limits the Commission's power to make an interim or 2
interlocutory order in relation to an application under section 175CA 3
(Orders only on application). 4
for unlawful dismissal under s 175EC (s 170EF Cwlth) 5
`Orders
`175CD.(1) If satisfied an employer has dismissed an employee contrary 6
to section 175EC(2), the Commission may order the employer-- 7
(a) to pay the employee an amount of not more than the monetary 8
value of 16 penalty units; or 9
(b) not to dismiss the employee, other than as allowed by the order. 10
`(2) An application for an order under subsection (1) may be made by-- 11
(a) an Industrial Inspector; or 12
(b) an employee who has been, or is to be, dismissed; or 13
(c) an industrial organisation whose members include the employee; 14
or 15
(d) an officer or employee of the industrial organisation, if the 16
organisation's rules allow the officer or employee to sue on the 17
organisation's behalf. 18
`(3) An application must be made within 6 years after 19
subsection 175EC(2) is contravened. 20
of order on leave 21
`Effect
`175CE. If the Commission makes an order under section 175CC(2)(a), 22
the interruption to the employee's continuity of service caused by the 23
dismissal must be disregarded when calculating the employee's entitlement 24
to sick, annual or long service leave. 25
for frivolous or vexatious applications 26
`Costs
`175CF. If it considers an application under section 175CA (Orders only 27
on application) is frivolous or vexatious, the costs the Commission may 28
order against the applicant include costs of representation by counsel, 29
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Industrial Relations Reform
solicitor or agent, whether or not the Commission has certified under 1
section 84 (Costs). 2
orders against employer 3
`Further
`175CG.(1) If an employer wilfully fails to comply with an order under 4
section 175CA (Orders only on application), 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) may make these further orders until the employer complies with 10
the order under section 175CA. 11
`(2) This section does not affect another provision of this Act allowing 12
proceedings to be taken against the employer. 13
`Subdivision 4--Orders giving effect to Articles 12 and 13 of Convention 14
giving effect to Articles 12 and 13 of Convention 15
`Orders
(s 170FA Cwlth) 16
`175DA.(1) The Commission may make an order giving effect to the 17
requirements about the dismissal of employees under-- 18
(a) Article 12 of the Termination of Employment Convention, so far 19
as it is about a severance allowance or other separation benefits; 20
or 21
(b) Article 13 of the Termination of Employment Convention. 22
`(2) When making an order to give effect to Article 13, the Commission 23
must limit the order's application to cases where an employer decides to 24
dismiss a number of employees that is at least the number (not less than 15) 25
stated in the order. 26
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only on application (s 170FB Cwlth) 1
`Orders
`175DB. The Commission may make an order under section 175DA 2
only if it has received an application from-- 3
(a) an employee to be covered by the order; or 4
(b) an industrial organisation whose rules entitle it to represent the 5
industrial interests of employees to be covered by the order. 6
powers not limited by Sdiv 5 (s 170FE Cwlth) 7
`Commission's
`175DC. The Commission's powers under this Subdivision are not 8
limited by Subdivision 5. 9
`Subdivision 5--Dismissals of 15 or more employees 10
if employer does not consult industrial organisation about 11
`Orders
proposed dismissals (s 170GA Cwlth) 12
`175EA.(1) An employer who decides to dismiss 15 or more employees 13
for reasons of an economic, technological, structural or similar nature must, 14
as soon as practicable after making the decision and in any event before 15
dismissing any of the employees-- 16
(a) notify each industrial organisation, of which any of the 17
employees is a member, of-- 18
(i) the dismissals; and 19
(ii) the reasons for the dismissals; and 20
(iii) the number and categories of employees; and 21
(iv) the time when, or the period over which, the employer 22
intends to carry out the dismissals; or 23
(b) give each industrial organisation an opportunity to consult with 24
the employer on ways-- 25
(i) to avoid or minimise the dismissals; and 26
(ii) to minimise the adverse effects of the dismissals (for example, 27
by finding alternative employment). 28
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`(2) The Commission may make the orders it considers appropriate to 1
put employees dismissed in contravention of subsection (1), and their 2
industrial organisations, in the same position (as nearly as can be done) as 3
if-- 4
(a) when subsection (1)(a) applies--the employer had informed the 5
industrial organisation; and 6
(b) when subsection (1)(b) applies--the employer had given the 7
industrial organisation an opportunity to consult. 8
`(3) Subsections (1) and (2) do not apply to an industrial organisation if 9
the employer could not reasonably be expected to have known (at the time 10
of the decision) that the industrial organisation's rules entitled it to represent 11
the industrial interests of the dismissed employees. 12
only on application (s 170GB Cwlth) 13
`Orders
`175EB. The Commission may make an order under section 175EA 14
only if it has received an application from an employee or industrial 15
organisation whose position is to be affected by the order as mentioned in 16
section 175EA(2). 17
must notify CES of proposed dismissals (s 170DD Cwlth) 18
`Employer
`175EC.(1) This section applies if an employer decides to dismiss 15 or 19
more employees for reasons of an economic, technological, structural or 20
similar nature. 21
`(2) The employer may dismiss the employees only if the employer, as 22
soon as practicable after making the decision, notifies the Commonwealth 23
Employment Service of-- 24
(a) the dismissals; and 25
(b) the reasons for the dismissals; and 26
(c) the number and categories of employees; and 27
(d) the time when, or the period over which, the employer intends to 28
carry out the dismissals. 29
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6--Miscellaneous 1
`Subdivision
does not limit other rights (s 170HB Cwlth) 2
`Division
`175FA. This Division does not limit any right a person or industrial 3
organisation may otherwise have to secure the making of awards, certified 4
agreements, enterprise flexibility agreements, industrial agreements or 5
orders about a dismissal. 6
to be written (s 170JA Cwlth) 7
`Orders
`175FB. An order of the Commission under this Division must be in 8
writing. 9
awards, orders etc. (s 170JG Cwlth) 10
`Inconsistent
`175FC. An award, industrial agreement, certified agreement, enterprise 11
flexibility agreement or order of the Commission that is inconsistent with 12
an order under this Division does not apply to the extent the inconsistency 13
detrimentally affects the rights of employees concerned.'. 14
of new Div 1A in Pt 13 (Industrial organisations) 15
Insertion
Clause21. Part 13, before Division 1-- 16
insert-- 17
1A--Preliminary 18
`Division
of Part (s 187A Cwlth) 19
`Objects
`194A. Without limiting section 3, the particular objects of this Part 20
are-- 21
(a) to encourage the democratic control of industrial organisations; 22
and 23
(b) to encourage members of industrial organisations to participate in 24
the organisation's affairs; and 25
(c) to encourage the efficient management of industrial organisations; 26
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Industrial Relations Reform
and 1
(d) to encourage and assist industrial organisations to develop in a 2
way that promotes economic prosperity and welfare; and 3
(e) to encourage and assist the amalgamation of industrial 4
organisations.'. 5
of s 196 (Criteria for registration) 6
Amendment
Clause22. Section 196(2)(b)(i) and (c)(i)-- 7
omit `1 000', insert `100'. 8
of s 197 (Continued registration of small industrial 9
Amendment
organisations) 10
Clause23.(1) Section 197(1), definition "relevant period"-- 11
omit. 12
(2) Section 197(1), definition "small industrial organisation"-- 13
omit, insert-- 14
` "small industrial organisation" means-- 15
(a) for an industrial organisation of employees--an organisation that 16
has fewer than 100 members who are employees; or 17
(b) for an industrial organisation of employers--an organisation, 18
whose members who are employers have (in the aggregate) 19
employed, on an average taken per month, fewer than 20
100 employees in the 6 months immediately before the day the 21
Commission acts under subsection (2).'. 22
(3) Section 197(3) and (4)-- 23
omit. 24
(4) Section 197(5)-- 25
omit `3', insert `1'. 26
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of s 273 (Fixing hearing in relation to amalgamation etc.) 1
Replacement
Section 273-- 2
Clause24.
omit, insert-- 3
hearing for amalgamation etc. 4
`Fixing
`273.(1) If an application is filed under section 265 for a proposed 5
amalgamation, the Commission must immediately fix a time and place for 6
hearing submissions about-- 7
(a) the granting of an approval for the submission of the 8
amalgamation to ballot; and 9
(b) if an application for a declaration under section 264 was filed with 10
the application--the making of a declaration under the section for 11
the amalgamation; and 12
(c) if an application was filed under section 267 for exemption from 13
the requirement that a ballot be held for the amalgamation--the 14
granting of the exemption; and 15
(d) if an application was filed under section 268 for approval of a 16
proposal for the submission of the amalgamation to a ballot that 17
is not conducted under section 285--the granting of the approval. 18
`(2) The Commission-- 19
(a) must ensure all industrial organisations are promptly notified of 20
the time and place of the hearing; and 21
(b) may notify others person who are likely to be interested of the 22
time and place of the hearing. 23
`(3) The Commission must also ensure the members of the proposed 24
amalgamated organisation are promptly notified of the time and the place of 25
the hearing if-- 26
(a) the hearing is about the granting of an exemption mentioned in 27
subsection (1)(c); and 28
(b) section 283A (Exemption from ballot--recognition of federal 29
ballot) applies to the application. 30
`(4) A notice under subsection (3)-- 31
(a) must inform the members of the right to object mentioned in 32
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Industrial Relations Reform
section 283A(3); and 1
(b) may be given in 1 of the following ways-- 2
(i) personally or by post addressed to the member's residential 3
address shown in the organisation's register of members; 4
(ii) in a journal published by the organisation that is circulated 5
generally to the organisation's members; 6
(iii) by publication in a newspaper circulating throughout the 7
State.'. 8
of s 275 (Approval for submission to ballot of 9
Amendment
amalgamation not involving extension of eligibility rules etc.) 10
Section 275(1)-- 11
Clause25.(1)
omit all words from `If, at', to `is satisfied--', 12
insert `At the hearing arranged under section 273, the Commission must 13
consider whether the application satisfies the following conditions--'. 14
(2) Section 275(1)-- 15
omit all words from `the Commission must' to `to ballot.'. 16
(3) Section 275(2)-- 17
omit, insert-- 18
`(2) If the Commission considers the application satisfies the conditions, 19
the Commission must grant the application and-- 20
(a) approve the submission of the amalgamation to ballot; or 21
(b) if a successful application is made for an exemption from the 22
requirement that the ballot be held--grant an exemption under 23
section 283 or 283A. 24
`(2A) If it is not satisfied, the Commission must, subject to 25
subsections (3) and (7), refuse the application.'. 26
(4) Section 275(3) and(7)-- 27
omit `to approve the submission of the amalgamation to ballot', 28
insert `the application'. 29
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Industrial Relations Reform
(5) Section 275(3)-- 1
omit `approve the submission of the amalgamation to ballot', 2
insert `grant the application under subsection (2)'. 3
of s 276 (Objections in relation to amalgamation 4
Amendment
involving extension of eligibility rules etc.) 5
Clause26. Section 276(1) and(2)-- 6
omit, insert-- 7
`276.(1) If an objection to a matter involved in a proposed amalgamation 8
is about the extension of eligibility rules, the objection may only be made to 9
the Commission under this section. 10
`(2) The objection may only be made if the Commission has refused to 11
approve, under section 275, the submission of the amalgamation to ballot.'. 12
of s 277 (Approval for submission to ballot of 13
Amendment
amalgamation involving extension of eligibility rules etc.) 14
Clause27.(1) Section 277(1), after `ballot'-- 15
insert-- 16
`or, if a successful application is made for an exemption from the 17
requirement that a ballot be held, grant an exemption under section 283 or 18
283A'. 19
(2) Section 277(3), after `ballot'-- 20
insert-- 21
`or, if a successful application is made for an exemption from the 22
requirement that a ballot be held, grant an exemption under section 283 or 23
283A.'. 24
of s 283 (Exemption from ballot) 25
Amendment
Clause28. Section 283, heading-- 26
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Industrial Relations Reform
omit, insert-- 1
`Exemption from ballot--number of members'. 2
of new s 283A 3
Insertion
Clause29. After section 283-- 4
insert-- 5
from ballot--recognition of federal ballot 6
`Exemption
`283A.(1) This section applies if-- 7
(a) counterpart federal bodies of industrial organisations have 8
amalgamated after conducting a ballot under the Commonwealth 9
Act (the "federal ballot"); and 10
(b) the industrial organisations propose to amalgamate under this 11
Act. 12
`(2) The proposed amalgamated organisation may apply to the 13
Commission under section 267 for an exemption from the requirement that 14
a ballot of its members be held in relation to the amalgamation. 15
`(3) A member of the proposed amalgamated organisation may object to 16
the exemption-- 17
(a) on the grounds that the exemption would detrimentally affect the 18
objector's interests; and 19
(b) in the way prescribed by regulation. 20
`(4) At the conclusion of the hearing arranged under section 273 about 21
the amalgamation, the Commission may grant the exemption only if 22
satisfied that-- 23
(a) of the Queensland members who voted in the federal ballot, the 24
percentage who approved the amalgamation was equivalent to the 25
percentage required under section 286 (that is, if the Queensland 26
members were the voters in an amalgamation to which the 27
section applied); and 28
(b) if the State and Federal bodies eligibility rules differ--the 29
interests of the members of the proposed amalgamated 30
organisation who were not eligible to vote in the federal ballot 31
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Industrial Relations Reform
have not been detrimentally affected; and 1
(c) objections about the possible extension of eligibility rules have 2
been resolved; and 3
(d) in the Federal jurisdiction, all likely legal challenges (including 4
inquiries under the Commonwealth Act) have ended. 5
`(5) If satisfied of the matters mentioned in subsection (4), the 6
Commission must grant the exemption unless it considers the exemption 7
should be refused in the special circumstances of the case. 8
`(6) If the exemption is granted, the members of the applicant industrial 9
organisation are taken to have approved the proposed principal 10
amalgamation and any proposed alternative amalgamation. 11
`(7) For this section a federal organisation or a branch or part of a federal 12
organisation is a "counterpart federal body" of an industrial organisation 13
if a substantial number of members of each are-- 14
(a) members or eligible to be members of both; or 15
(b) engaged in the same work, in aspects of the same work or in 16
similar work; or 17
(c) employed in the same or similar work by employers engaged in 18
the same industry; or 19
(d) engaged in work or in industries in relation to which there is a 20
community of interest. 21
`(8) This section applies even if the federal counterpart bodies 22
amalgamated before the commencement of this section. 23
`(9) Subsection (8) and this subsection expire at the end of the day on 24
which this section commences.'. 25
of s 342 (Prejudice of employee by reason of membership 26
Amendment
of industrial organisation) 27
Section 342(1)-- 28
Clause30.(1)
insert-- 29
`(g) has failed to agree or consent to, or vote in favour of, the making 30
of an agreement to which an industrial organisation of which the 31
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Industrial Relations Reform
employee is a member would be a party; or 1
(h) has failed to become a party to, or otherwise agree or consent to 2
the making of, or vote in favour of the making of, an enterprise 3
flexibility agreement.'. 4
(2) Section 342(2)-- 5
insert-- 6
`(c) to force the employee, or because the employee has failed, to 7
agree or consent to, or vote in favour of, the making of an 8
agreement to which an industrial organisation of which the 9
employee is a member would be a party; or 10
(d) to force the employee, or because the employee has failed, to 11
become a party to, or otherwise agree or consent to the making 12
of, or vote in favour of the making of, an enterprise flexibility 13
agreement.'. 14
(3) Section 342-- 15
insert-- 16
`(2A) An employer must not, whether by threats, promises or otherwise, 17
induce an employee to stop being an officer or member of-- 18
(a) an industrial organisation; or 19
(b) an association that has applied to be registered as an industrial 20
organisation.'. 21
of s 348 (Appointment of industrial inspectors) 22
Amendment
Clause31. Section 348(5) and (6)-- 23
omit, insert-- 24
`(5) Arrangements may be made under section 40 of the Public Service 25
Management and Employment Act 1988 for-- 26
(a) officers of the Commonwealth public service to exercise the 27
powers and perform the functions of inspectors; and 28
(b) officers of the Queensland public service to exercise the powers 29
and perform the functions of an inspector under the 30
Commonwealth Act. 31
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`(6) An arrangement under subsection (5)(a) is sufficient authority for an 1
officer of the Commonwealth public service to exercise the powers and 2
perform the functions of an inspector.'. 3
of s 362 (Time and wages record of award employees) 4
Amendment
Clause32.(1) Section 362(3), after paragraph (c)-- 5
insert-- 6
`(da)for an employee whose entitlement to long service leave is 7
calculated under section 164--the total hours (other than 8
overtime) worked by the employee since the start of the period to 9
which the entitlement relates, calculated up to 30 June in each 10
year;'. 11
(2) Section 362-- 12
insert-- 13
`(7) On the employee's request, the employer must give the employee a 14
certificate stating the total hours recorded under subsection (3)(da) for the 15
employee, calculated to the previous 30 June.'. 16
of s 363 (Wages record of non-award employees) 17
Amendment
Section 363(3)-- 18
Clause33.
omit, insert-- 19
`(3) The wages book or similar record mentioned in subsection (1) must 20
contain, for each employee for whom the book or record is required under 21
the subsection to be kept, particulars of-- 22
(a) for each pay period-- 23
(i) the employee's designation; and 24
(ii) the employee's rate of wages; and 25
(iii) the gross wages payable to or for the employee; and 26
(iv) the deductions made from the employee's wages; and 27
(v) the net wages payable to or for the employee; and 28
(b) if an employee's entitlement to long service leave is calculated 29
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under section 164--the total hours (other than overtime) worked 1
by the employee since the start of the period to which the 2
entitlement relates, calculated to 30 June in each year. 3
`(4) On the employee's request, the employer must give the employee a 4
certificate stating the total hours recorded under subsection (3)(b) for the 5
employee, calculated to the previous 30 June.'. 6
of s 382 (Parliamentary supervision of orders in council) 7
Replacement
Section 382-- 8
Clause34.
omit, insert-- 9
and applications to be written 10
`Notices
`382. Unless otherwise provided, if a person is required to give a notice 11
or make an application, the notice or application must be written.'. 12
of s 428 (Avoiding Act's obligations) 13
Amendment
Section 428(1)-- 14
Clause35.(1)
omit, insert-- 15
`428.(1) In this section-- 16
"obligation" under this Act includes an obligation under an award, 17
industrial agreement, certified agreement or enterprise flexibility 18
agreement. 19
`(1A) An employer must not, with intent to avoid an obligation under 20
this Act about the payment to or for an employee for any public holiday or 21
leave due or accruing to the employee by way of annual, sick or long 22
service leave-- 23
(a) dismiss or stand down the employee; or 24
(b) if the employee's entitlement to long service leave is calculated 25
under section 164--interrupt the continuity of the employee's 26
service. 27
Maximum penalty--40 penalty units.'. 28
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(2) Section 428(2)-- 1
omit `subsection (1)', insert `subsection (1A)'. 2
of s 466 (Breaches of awards etc. generally) 3
Amendment
Clause36. Section 466(1), penalty-- 4
omit, insert-- 5
`Maximum penalty-- 6
(a) for an award made or amended under section 139DP, certified 7
agreement, enterprise flexibility agreement or permit-- 8
(i) for a first offence-- 9
(A) if the offender is an employer or industrial 10
organisation--80 penalty units; or 11
(B) if the offender is an employee--16 penalty units; or 12
(ii) for a second or subsequent offence consisting of a breach of 13
the same provision of the award, agreement or permit-- 14
(A) if the offender is an employer or industrial 15
organisation--90 penalty units; or 16
(B) if the offender is an employee--20 penalty units; or 17
(b) otherwise-- 18
(i) for a first offence-- 19
(A) if the offender is an employer or industrial 20
organisation--20 penalty units; or 21
(B) if the offender is an employee--4 penalty units; or 22
(ii) for a second or subsequent offence consisting of a breach of 23
the same provision of the award, agreement or permit-- 24
(A) if the offender is an employer or industrial 25
organisation--40 penalty units; or 26
(B) if the offender is an employee--8 penalty units.'. 27
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of new s 467A 1
Insertion
Clause37. After section 467-- 2
insert-- 3
not to be dismissed etc. for engaging in industrial action 4
`Employees
`467A.(1) An employer must not dismiss an employee only because the 5
employee has engaged, or is proposing to engage, in industrial action about 6
an industrial dispute that-- 7
(a) has been notified to the Commission; or 8
(b) the Commission has found to exist. 9
Maximum penalty--200 penalty units. 10
`(2) Subsection (1) does not apply if the industrial action has involved or 11
is likely to involve unlawful-- 12
(a) personal injury; or 13
(b) wilful destruction of, or damage to, property; or 14
(c) taking, keeping or use of property. 15
`(3) Subsection (1) does not apply to an employee included in a class of 16
employees prescribed by regulation. 17
`(4) The regulation may prescribe a class of employees only if the 18
exclusion of employees in the class is consistent with documents mentioned 19
in section 139DA(2). 20
`(5) In proceedings for an offence against subsection (1) it is not 21
necessary for the prosecution to prove-- 22
(a) the defendant's reason for the action charged; or 23
(b) the intent with which the defendant took the action charged; 24
but it is a defence for the defendant to prove that the action was not 25
motivated solely by the reason, or taken with the sole intent, stated in the 26
charge. 27
`(6) If an employer is found guilty of an offence against subsection (1), 28
the Commission may order the employer-- 29
(a) to reinstate the dismissed person to the position that the person 30
occupied immediately before the dismissal or to a position no 31
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less favourable than the position; and 1
(b) to pay the dismissed person compensation for loss suffered 2
because of the dismissal. 3
`(7) The rights about reinstatement conferred on a person by this section 4
do not limit the person's other rights.'. 5
of new ss 487-490 6
Insertion
Clause38. After section 486 (in Part 20)-- 7
insert-- 8
certified agreements 9
`Transitional
`487.(1) In this section-- 10
"amending Act" means the Industrial Relations Reform Act 1994; 11
"commencement day" means the day on which the amending Act 12
commences. 13
`(2) Despite the omission of Part 10, Division 2 by the amending Act-- 14
(a) a memorandum of agreement made under the Division (although 15
not certified) immediately before the commencement day has 16
effect as if it had been made under section 139BA; and 17
(b) an agreement certified under the Division and in force 18
immediately before the commencement day has effect as if this 19
Act had not been amended by the amending Act, but may be 20
extended under section 139BK; and 21
(c) if an application that was made under the Division for 22
certification of an agreement was pending immediately before the 23
commencement day-- 24
(i) if each of the applicants so requests, the Commission must 25
deal with the application as if the Division had not been 26
omitted, and, if the agreement is certified, it has effect as if 27
this Act had not been amended by the amending Act, but 28
may be extended under section 139BK; or 29
(ii) otherwise--the Commission must deal with the application 30
as if it had been made under section 139BA. 31
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`(3) The Commission may allow the parties to an agreement to which 1
subsection (2)(a) or (c)(ii) applies to amend its terms to agree with 2
Part 10A, Division 2. 3
provision about dismissals 4
`Transitional
`488.(1) Part 11, Division 4 as it existed immediately before the 5
commencement of the Industrial Relations Reform Act 1994 (the 6
"amending Act"), from the commencement continues to apply to 7
dismissals within the meaning of the Division that happened before the 8
commencement as if the amending Act had not been passed. 9
`(2) Part 11, Division 4 as it exists after the commencement does not 10
apply to the dismissals. 11
provision about small industrial organisations 12
`Transitional
`489.(1) In this section-- 13
"commencement" means the commencement of section 23(2) of the 14
Industrial Relations Reform Act 1994; 15
"relevant industrial organisation" means an industrial organisation that 16
before the commencement was a small industrial organisation, but 17
ceased to be a small industrial organisation because of the 18
commencement; 19
"small industrial organisation" means a small industrial organisation 20
under section 197. 21
`(2) The Industrial Commission must not exercise a power under 22
section 197(2) about a relevant industrial organisation after the 23
commencement, even if it was doing so, or authorised to do so, before the 24
commencement. 25
and renumbering of Act 26
`Numbering
`490. In the first reprint of the Act produced under the Reprints Act 1992, 27
section 43 (Numbering and renumbering of provisions) of the Reprints Act 28
1992 must be used.'. 29
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of new Schs 1-13 1
Insertion
After Part 22-- 2
Clause39.
insert-- 3
`SCHEDULE 1 4
`MINIMUM WAGES CONVENTION 5
section 5(1) 6
The General Conference of the International Labour Organisation, 7
Having been convened at Geneva by the Governing Body of the 8
International Labour Office, and having met in its Fifty-fourth 9
Session on 3 June 1970, and 10
Noting the terms of the Minimum Wage-Fixing Machinery 11
Convention, 1928, and the Equal Remuneration Convention, 12
1951, which have been widely ratified, as well as of the 13
Minimum Wage Fixing Machinery (Agriculture) Convention, 14
1951, and 15
Considering that these Conventions have played a valuable part in 16
protecting disadvantaged groups of wage earners, and 17
Considering that the time has come to adopt a further instrument 18
complementing these Conventions and providing protection for 19
wage earners against unduly low wages, which, while of general 20
application, pays special regard to the needs of developing 21
countries, and 22
Having decided upon the adoption of certain proposals with regard to 23
minimum wage fixing machinery and related problems, with 24
special reference to developing countries, which is the fifth item 25
on the agenda of the session, and 26
Having determined that these proposals shall take the form of an 27
international Convention, 28
adopts this twenty-second day of June of the year one thousand nine 29
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hundred and seventy, the following Convention, which may be cited as the 1
Minimum Wage Fixing Convention, 1970-- 2
Article 1 3
1. Each Member of the International Labour Organisation which ratifies 4
this Convention undertakes to establish a system of minimum wages which 5
covers all groups of wage earners whose terms of employment are such 6
that coverage would be appropriate. 7
2. The competent authority in each country shall, in agreement or after 8
full consultation with the representative organisations of employers and 9
workers concerned, where such exist, determine the groups of wage earners 10
to be covered. 11
3. Each Member which ratifies this Convention shall list in the first 12
report on the application of the Convention submitted under article 22 of the 13
Constitution of the International Labour Organisation any groups of wage 14
earners which may not have been covered in pursuance of this Article, 15
giving the reasons for not covering them, and shall state in subsequent 16
reports the position of its law and practice in respect of the groups not 17
covered, and the extent to which effect has been given or is proposed to be 18
given to the Convention in respect of such groups. 19
Article 2 20
1. Minimum wages shall have the force of law and shall not be subject to 21
abatement, and failure to apply them shall make the person or persons 22
concerned liable to appropriate penal or other sanctions. 23
2. Subject to the provisions of paragraph 1 of this Article, the freedom of 24
collective bargaining shall be fully respected. 25
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Article 3 1
The elements to be taken into consideration in determining the level of 2
minimum wages shall, so far as possible and appropriate in relation to 3
national practice and conditions, include-- 4
(a) the needs of workers and their families, taking into account the 5
general level of wages in the country, the cost of living, social 6
security benefits, and the relative living standards of other social 7
groups; 8
(b) economic factors, including the requirements of economic 9
development, levels of productivity and the desirability of 10
attaining and maintaining a high level of employment. 11
Article 4 12
1. Each Member which ratifies this Convention shall create and/or 13
maintain machinery adapted to national conditions and requirements 14
whereby minimum wages for groups of wage earners covered in pursuance 15
of Article 1 hereof can be fixed and adjusted from time to time. 16
2. Provision shall be made, in connection with the establishment, 17
operation and modification of such machinery, for full consultation with 18
representative organisations of employers and workers concerned or, where 19
no such organisations exist, representatives of employers and workers 20
concerned. 21
3. Wherever it is appropriate to the nature of the minimum wage fixing 22
machinery, provision shall also be made for the direct participation in its 23
operation of-- 24
(a) representatives of organisations of employers and workers 25
concerned or, where no such organisations exist, representatives 26
of employers and workers concerned, on a basis of equality; 27
(b) persons having recognised competence for representing the 28
general interests of the country and appointed after full 29
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consultation with representative organisations of employers and 1
workers concerned, where such organisations exist and such 2
consultation is in accordance with national law or practice. 3
Article 5 4
Appropriate measures, such as adequate inspection reinforced by other 5
necessary measures, shall be taken to ensure the effective application of all 6
provisions relating to minimum wages. 7
Article 6 8
This Convention shall not be regarded as revising any existing 9
Convention. 10
Article 7 11
The formal ratifications of this Convention shall be communicated to the 12
Director-General of the International Labour Office for registration. 13
Article 8 14
1. This Convention shall be binding only upon those Members of the 15
International Labour Organisation whose ratifications have been registered 16
with the Director-General. 17
2. It shall come into force twelve months after the date on which the 18
ratifications of two Members have been registered with the 19
Director-General. 20
3. Thereafter, this Convention shall come into force for any Member 21
twelve months after the date on which its ratification has been registered. 22
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Article 9 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 9
in 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 10 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 16
the 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 11 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
particulars of all ratifications and acts of denunciation registered by him in 26
accordance with the provisions of the preceding Articles. 27
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Article 12 1
At such times as it may consider necessary the Governing Body of the 2
International Labour Office shall present to the General Conference a report 3
on the working of this Convention and shall examine the desirability of 4
placing on the agenda of the Conference the question of its revision in 5
whole or in part. 6
Article 13 7
1. Should the Conference adopt a new Convention revising this 8
Convention in whole or in part, then, unless the new Convention otherwise 9
provides-- 10
(a) the ratification by a Member of the new revising Convention shall 11
ipso jure involve the immediate denunciation of this Convention, 12
notwithstanding the provisions of Article 9 above, if and when 13
the new revising Convention shall have come into force; 14
(b) as from the date when the new revising Convention comes into 15
force this Convention shall cease to be open to ratification by the 16
Members. 17
2. This Convention shall in any case remain in force in its actual form 18
and content for those Members which have ratified it but have not ratified 19
the revising Convention. 20
Article 14 21
The English and French versions of the text of this Convention are 22
equally authoritative. 23
24
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`SCHEDULE 2 1
EQUAL REMUNERATION CONVENTION 2
`
section 5(1) 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 Thirty-fourth 6
Session on 6 June 1951, and 7
Having decided upon the adoption of certain proposals with regard to 8
the principle of equal remuneration for men and women workers 9
for work of equal value, which is the seventh item on the agenda 10
of the session, and 11
Having determined that these proposals shall take the form of an 12
International Convention, 13
adopts this twenty-ninth day of June of the year one thousand nine hundred 14
and fifty-one the following Convention, which may be cited as the Equal 15
Remuneration Convention, 1951-- 16
Article 1 17
For the purpose of this Convention-- 18
(a) the term "remuneration" includes the ordinary, basic or 19
minimum wage or salary and any additional emoluments 20
whatsoever payable directly or indirectly, whether in cash or in 21
kind, by the employer to the worker and arising out of the 22
worker's employment; 23
(b) the term "equal remuneration for men and women workers 24
for work of equal value" refers to rates of remuneration 25
established without discrimination based on sex. 26
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Article 2 1
1. Each Member shall, by means appropriate to the methods in operation 2
for determining rates of remuneration, promote and, in so far as is 3
consistent with such methods, ensure the application to all workers of the 4
principal of equal remuneration for men and women workers for work of 5
equal value. 6
2. This principle may be applied by means of-- 7
(a) national laws or regulations; 8
(b) legally established or recognised machinery for wage 9
determination; 10
(c) collective agreements between employers and workers; or 11
(d) a combination of these various means. 12
Article 3 13
1. Where such action will assist in giving effect to the provisions of this 14
Convention measures shall be taken to promote objective appraisal of jobs 15
on the basis of the work to be performed. 16
2. The methods to be followed in this appraisal may be decided upon by 17
the authorities responsible for the determination of rates of remuneration, 18
or, where such rates are determined by collective agreements, by the parties 19
thereto. 20
3. Differential rates between workers which correspond, without regard 21
to sex, to differences, as determined by such objective appraisal, in the work 22
to be performed shall not be considered as being contrary to the principle of 23
equal remuneration for men and women workers for work of equal value. 24
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Article 4 1
Each Member shall co-operate as appropriate with the employers' and 2
workers' organisations concerned for the purpose of giving effect to the 3
provisions of this Convention. 4
Article 5 5
The formal ratifications of this Convention shall be communicated to the 6
Director-General of the International Labour Office for registration. 7
Article 6 8
1. This Convention shall be binding only upon those Members of the 9
International Labour Organisation whose ratifications have been registered 10
with the Director-General. 11
2. It shall come into force twelve months after the date on which the 12
ratifications of two Members have been registered with the 13
Director-General. 14
3. Thereafter, this Convention shall come into force for any Member 15
twelve months after the date on which its ratification has been registered. 16
Article 7 17
1. Declarations communicated to the Director-General of the 18
International Labour Office in accordance with paragraph 2 of Article 35 of 19
the Constitution of the International Labour Organisation shall indicate-- 20
(a) the territories in respect of which the Member concerned 21
undertakes that the provisions of the Convention shall be applied 22
without modification; 23
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(b) the territories in respect of which it undertakes that the provisions 1
of the Convention shall be applied subject to modifications, 2
together with details of the said modifications; 3
(c) the territories in respect of which the Convention is inapplicable 4
and in such cases the grounds on which it is inapplicable; 5
(d) the territories in respect of which it reserves its decisions pending 6
further consideration of the position. 7
2. The undertakings referred to in subparagraphs (a) and (b) of 8
paragraph 1 of this Article shall be deemed to be an integral part of the 9
ratification and shall have the force of ratification. 10
3. Any Member may at any time by a subsequent declaration cancel in 11
whole or in part any reservation made in its original declaration in virtue of 12
subparagraphs (b), (c) or (d) of paragraph 1 of this Article. 13
4. Any Member may, at any time at which the Convention is subject to 14
denunciation in accordance with the provisions of Article 9, communicate to 15
the Director-General a declaration modifying in any other respect the terms 16
of any former declaration and stating the present position in respect of such 17
territories as it may specify. 18
Article 8 19
1. Declarations communicated to the Director-General of the 20
International Labour Office in accordance with paragraphs 4 or 5 of 21
Article 35 of the Constitution of the International Labour Organisation shall 22
indicate whether the provisions of the Convention will be applied in the 23
territory concerned without modification or subject to modifications; when 24
the declaration indicates that the provisions of the Convention will be 25
applied subject to modifications, it shall give details of the said 26
modifications. 27
2. The Member, Members or international authority concerned may at 28
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any time by a subsequent declaration renounce in whole or in part the right 1
to have recourse to any modification indicated in any former declaration. 2
3. The Member, Members or international authority concerned may, at 3
any time at which this Convention is subject to denunciation in accordance 4
with the provisions of Article 9, communicate to the Director-General a 5
declaration modifying in any other respect the terms of any former 6
declaration and stating the present position in respect of the application of 7
the Convention. 8
Article 9 9
1. A Member which has ratified this Convention may denounce it after 10
the expiration of ten years from the date on which the Convention first 11
comes into force, by an act communicated to the Director-General of the 12
International Labour Office for registration. Such denunciation shall not take 13
effect until one year after the date on which it is registered. 14
2. Each Member which has ratified this Convention and which does not, 15
within the year following the expiration of the period of ten years mentioned 16
in the preceding paragraph, exercise the right of denunciation provided for 17
in this Article, will be bound for another period of ten years and, thereafter, 18
may denounce this Convention at the expiration of each period of ten years 19
under the terms provided for in this Article. 20
Article 10 21
1. The Director-General of the International Labour Office shall notify all 22
Members of the International Labour Organisation of the registration of all 23
ratifications, declarations and denunciations communicated to him by the 24
Members of the Organisation. 25
2. When notifying the Members of the Organisation of the registration of 26
the second ratification communicated to him, the Director-General shall 27
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draw the attention of the Members of the Organisation to the date upon 1
which the Convention will come into force. 2
Article 11 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 of all ratifications, declarations and acts of denunciation 7
registered by him in accordance with the provisions of the preceding 8
articles. 9
Article 12 10
At such times as it may consider necessary the Governing Body of the 11
International Labour Office shall present to the General Conference a report 12
on the working of this Convention and shall examine the desirability of 13
placing on the agenda of the Conference the question of its revision in 14
whole or in part. 15
Article 13 16
1. Should the Conference adopt a new Convention revising this 17
Convention in whole or in part, then, unless the new Convention otherwise 18
provides-- 19
(a) the ratification by a Member of the new revising Convention shall 20
ipso jure involve the immediate denunciation of this Convention, 21
notwithstanding the provisions of Article 9 above, if and when 22
the new revising Convention shall have come into force; 23
(b) as from the date when the new revising Convention comes into 24
force this Convention shall cease to be open to ratification by the 25
Members. 26
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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 14 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
Thirty-fourth Session which was held at Geneva and declared closed the 9
twenty-ninth day of June 1951. 10
IN FAITH WHEREOF we have appended our signatures this second 11
day of August 1951. 12
13
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`SCHEDULE 3 1
CONVENTION ON THE ELIMINATION OF ALL 2
`
FORMS OF DISCRIMINATION AGAINST WOMEN 3
section 5(1) 4
The States Parties to the present Convention, 5
Noting that the Charter of the United Nations reaffirms faith in 6
fundamental human rights, in the dignity and worth of the human person 7
and in the equal rights of men and women, 8
Noting that the Universal Declaration of Human Rights affirms the 9
principle of the inadmissibility of discrimination and proclaims that all 10
human beings are born free and equal in dignity and rights and that 11
everyone is entitled to all the rights and freedoms set forth therein, without 12
distinction of any kind, including distinction based on sex, 13
Noting that the States Parties to the International Covenants on Human 14
Rights have the obligation to ensure the equal right of men and women to 15
enjoy all economic, social, cultural, civil and political rights, 16
Considering the international conventions concluded under the auspices 17
of the United Nations and the specialised agencies promoting equality of 18
rights of men and women, 19
Noting also the resolutions, declarations and recommendations adopted 20
by the United Nations and the specialised agencies promoting equality of 21
rights of men and women, 22
Concerned, however, that despite these various instruments extensive 23
discrimination against women continues to exist, 24
Recalling that discrimination against women violates the principles of 25
equality of rights and respect for human dignity, is an obstacle to the 26
participation of women, on equal terms with men, in the political, social, 27
economic and cultural life of their countries, hampers the growth of the 28
prosperity of society and the family and makes more difficult the full 29
development of the potentialities of women in the service of their countries 30
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and of humanity, 1
Concerned that in situations of poverty women have the least access to 2
food, health, education, training and opportunities for employment and 3
other needs, 4
Convinced that the establishment of the new international economic order 5
based on equity and justice will contribute significantly towards the 6
promotion of equality between men and women, 7
Emphasizing that the eradication of apartheid, of all forms of racism, 8
racial discrimination, colonialism, neo-colonialism, aggression, foreign 9
occupation and domination and interference in the internal affairs of States 10
is essential to the full enjoyment of the rights of men and women, 11
Affirming that the strengthening of international peace and security, 12
relaxation of international tension, mutual co-operation among all States 13
irrespective of their social and economic systems, general and complete 14
disarmament, and in particular nuclear disarmament under strict and 15
effective international control, the affirmation of the principles of justice, 16
equality and mutual benefit in relations among countries and the realisation 17
of the right of peoples under alien and colonial domination and foreign 18
occupation to self-determination and independence, as well as respect for 19
national sovereignty and territorial integrity, will promote social progress 20
and development and as a consequence will contribute to the attainment of 21
full equality between men and women, 22
Convinced that the full and complete development of a country, the 23
welfare of the world and the cause of peace require the maximum 24
participation of women on equal terms with men in all fields, 25
Bearing in mind the great contribution of women to the welfare of the 26
family and to the development of society, so far not fully recognised, the 27
social significance of maternity and the role of both parents in the family 28
and in the upbringing of children, and aware that the role of women in 29
procreation should not be a basis for discrimination but that the upbringing 30
of children requires a sharing of responsibility between men and women 31
and society as a whole, 32
Aware that a change in the traditional role of men as well as the role of 33
women in society and in the family is needed to achieve full equality 34
between men and women, 35
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Determined to implement the principles set forth in the Declaration on 1
the Elimination of Discrimination against Women and, for that purpose, to 2
adopt the measures required for the elimination of such discrimination in all 3
its forms and manifestations, 4
Have agreed on the following-- 5
PART I 6
Article 1 7
For the purposes of the present Convention, the term "discrimination 8
against women" shall mean any distinction, exclusion or restriction made 9
on the basis of sex which has the effect or purpose of impairing or 10
nullifying the recognition, enjoyment or exercise by women, irrespective of 11
their marital status, on a basis of equality of men and women, of human 12
rights and fundamental freedoms in the political, economic, social, cultural, 13
civil or any other field. 14
Article 2 15
States Parties condemn discrimination against women in all its forms, 16
agree to pursue by all appropriate means and without delay a policy of 17
eliminating discrimination against women and, to this end, undertake-- 18
(a) To embody the principle of the equality of men and women in 19
their national constitutions or other appropriate legislation if not 20
yet incorporated therein and to ensure, through law and other 21
appropriate means, the practical realisation of this principle; 22
(b) To adopt appropriate legislative and other measures, including 23
sanctions where appropriate, prohibiting all discrimination against 24
women; 25
(c) To establish legal protection of the rights of women on an equal 26
basis with men and to ensure through competent national 27
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tribunals and other public institutions the effective protection of 1
women against any act of discrimination; 2
(d) To refrain from engaging in any act or practice of discrimination 3
against women and to ensure that public authorities and 4
institutions shall act in conformity with this obligation; 5
(e) To take all appropriate measures to elimination discrimination 6
against women by any person, organisation or enterprise; 7
(f) To take all appropriate measures, including legislation, to modify 8
or abolish existing laws, regulations, customs and practices 9
which constitute discrimination against women; 10
(g) To repeal all national penal provisions which constitute 11
discrimination against women. 12
Article 3 13
States Parties shall take in all fields, in particular in the political, social, 14
economic and cultural fields, all appropriate measures, including legislation, 15
to ensure the full development and advancement of women, for the purpose 16
of guaranteeing them the exercise and enjoyment of human rights and 17
fundamental freedoms on a basis of equality with men. 18
Article 4 19
1. Adoption by States Parties of temporary special measures aimed at 20
accelerating de facto equality between men and women shall not be 21
considered discrimination as defined in the present Convention, but shall in 22
no way entail as a consequence the maintenance of unequal or separate 23
standards; these measures shall be discontinued when the objectives of 24
equality of opportunity and treatment have been achieved. 25
2. Adoption by States Parties of special measures, including those 26
measures contained in the present Convention, aimed at protecting 27
maternity shall not be considered discriminatory. 28
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Article 5 1
States Parties shall take all appropriate measures-- 2
(a) To modify the social and cultural patterns of conduct of men and 3
women, with a view to achieving the elimination of prejudices 4
and customary and all other practices which are based on the idea 5
of the inferiority or the superiority of either of the sexes or on 6
stereotyped roles for men and women; 7
(b) To ensure that family education includes a proper understanding 8
of maternity as a social function and the recognition of the 9
common responsibility of men and women in the upbringing and 10
development of their children, it being understood that the interest 11
of the children is the primordial consideration in all cases. 12
Article 6 13
States Parties shall take all appropriate measures, including legislation, to 14
suppress all forms of traffic in women and exploitation of prostitution of 15
women. 16
PART II 17
Article 7 18
States Parties shall take all appropriate measures to eliminate 19
discrimination against women in the political and public life of the country 20
and, in particular, shall ensure to women, on equal terms with men, the 21
right-- 22
(a) To vote in all elections and public referenda and to be eligible for 23
election to all publicly elected bodies; 24
(b) To participate in the formulation of government policy and the 25
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implementation thereof and to hold public office and perform all 1
public functions at all levels of government; 2
(c) To participate in non-governmental organisations and 3
associations concerned with the public and political life of the 4
country. 5
Article 8 6
States Parties shall take all appropriate measures to ensure to women, on 7
equal terms with men and without any discrimination, the opportunity to 8
represent their Governments at the international level and to participate in 9
the work of international organisations. 10
Article 9 11
1. States Parties shall grant women equal rights with men to acquire, 12
change or retain their nationality. 13
They shall ensure in particular that neither marriage to an alien nor 14
change of nationality by the husband during marriage shall automatically 15
change the nationality of the wife, render her stateless or force upon her the 16
nationality of the husband. 17
2. States Parties shall grant women equal rights with men with respect to 18
the nationality of their children. 19
PART III 20
Article 10 21
States Parties shall take all appropriate measures to eliminate 22
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discrimination against women in order to ensure to them equal rights with 1
men in the field of education and in particular to ensure, on a basis of 2
equality of men and women-- 3
(a) The same conditions for career and vocational guidance, for 4
access to studies and for the achievement of diplomas in 5
educational establishments of all categories in rural as well as in 6
urban areas; this equality shall be ensured in pre-school, general, 7
technical, professional and higher technical education, as well as 8
in all types of vocational training; 9
(b) Access to the same curricula, the same examinations, teaching 10
staff with qualifications of the same standard and school 11
premises and equipment of the same quality; 12
(c) The elimination of any stereotyped concept of the roles of men 13
and women at all levels and in all forms of education by 14
encouraging coeducation and other types of education which will 15
help to achieve this aim and, in particular, by the revision of 16
textbooks and school programmes and the adaption of teaching 17
methods; 18
(d) The same opportunities to benefit from scholarships and other 19
study grants; 20
(e) The same opportunities for access to programmes of continuing 21
education, including adult and functional literacy programmes, 22
particularly those aimed at reducing, at the earliest possible time, 23
any gap in education existing between men and women; 24
(f) The reduction of female student drop-out rates and the 25
organisation of programmes for girls and women who have left 26
school prematurely; 27
(g) The same opportunities to participate actively in sports and 28
physical education; 29
(h) Access to specific educational information to help to ensure the 30
health and well-being of families, including information and 31
advice on family planning. 32
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Article 11 1
1. States Parties shall take all appropriate measures to eliminate 2
discrimination against women in the field of employment in order to 3
ensure, on a basis of equality of men and women, the same rights, in 4
particular-- 5
(a) The right to work as an inalienable right of all human beings; 6
(b) The right to the same employment opportunities, including the 7
application of the same criteria for selection in matters of 8
employment; 9
(c) The right to free choice of profession and employment, the right 10
to promotion, job security and all benefits and conditions of 11
service and the right to receive vocational training and retraining, 12
including apprenticeships, advanced vocational training and 13
recurrent training; 14
(d) The right to equal remuneration, including benefits, and to equal 15
treatment in respect of work of equal value, as well as equality of 16
treatment in the evaluation of the quality of work; 17
(e) The right to social security, particularly in cases of retirement, 18
unemployment, sickness, invalidity and old age and other 19
incapacity to work, as well as the right to paid leave; 20
(f) The right to protection of health and to safety in working 21
conditions, including the safeguarding of the function of 22
reproduction. 23
2. In order to prevent discrimination against women on the grounds of 24
marriage or maternity and to ensure their effective right to work, State 25
Parties shall take appropriate measures-- 26
(a) To prohibit, subject to the imposition of sanctions, dismissal on 27
the grounds of pregnancy or of maternity leave and 28
discrimination in dismissals on the basis of marital status; 29
(b) To introduce maternity leave with pay or with comparable social 30
benefits without loss of former employment, seniority or social 31
allowances; 32
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(c) To encourage the provision of the necessary supporting social 1
services to enable parents to combine family obligations with 2
work responsibilities and participation in public life, in particular 3
through promoting the establishment and development of a 4
network of child-care facilities; 5
(d) To provide special protection to women during pregnancy in 6
types of work proved to be harmful to them. 7
3. Protective legislation relating to matters covered in this article shall be 8
reviewed periodically in the light of scientific and technological knowledge 9
and shall be revised, repealed or extended as necessary. 10
Article 12 11
1. States Parties shall take all appropriate measures to eliminate 12
discrimination against women in the field of health care in order to ensure, 13
on a basis of equality of men and women, access to health care services, 14
including those related to family planning. 15
2. Notwithstanding the provisions of paragraph 1 of this article, State 16
Parties shall ensure to women appropriate services in connexion with 17
pregnancy, confinement and the post-natal period, granting free services 18
where necessary, as well as adequate nutrition during pregnancy and 19
lactation. 20
Article 13 21
States Parties shall take all appropriate measures to eliminate 22
discrimination against women in other areas of economic and social life in 23
order to ensure, on a basis of equality of men and women, the same rights, 24
in particular-- 25
(a) The right to family benefits; 26
(b) The right to bank loans, mortgages and other forms of financial 27
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credit; 1
(c) The right to participate in recreational activities, sports and all 2
aspects of cultural life. 3
Article 14 4
1. States Parties shall take into account the particular problems faced by 5
rural women and the significant roles which rural women play in the 6
economic survival of their families, including their work in the 7
non-monetized sectors of the economy, and shall take all appropriate 8
measures to ensure the application of the provisions of this Convention to 9
women in rural areas. 10
2. States Parties shall take all appropriate measures to eliminate 11
discrimination against women in rural areas in order to ensure, on a basis of 12
equality of men and women, that they participate in and benefit from rural 13
development and, in particular, shall ensure to such women the right-- 14
(a) To participate in the elaboration and implementation of 15
development planning at all levels; 16
(b) To have access to adequate health care facilities, including 17
information, counselling and services in family planning; 18
(c) To benefit directly from social security programmes; 19
(d) To obtain all types of training and education, formal and 20
non-formal, including that relating to functional literacy, as well 21
as, inter alia, the benefit of all community and extension services, 22
in order to increase their technical proficiency; 23
(e) To organise self-help groups and co-operatives in order to obtain 24
equal access to economic opportunities through employment or 25
self-employment; 26
(f) To participate in all community activities; 27
(g) To have access to agricultural credit and loans, marketing 28
facilities, appropriate technology and equal treatment in land and 29
agrarian reform as well as in land resettlement schemes; 30
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(h) To enjoy adequate living conditions, particularly in relation to 1
housing, sanitation, electricity and water supply, transport and 2
communications. 3
PART IV 4
Article 15 5
1. States Parties shall accord to women equality with men before the law. 6
2. States Parties shall accord to women, in civil matters, a legal capacity 7
identical to that of men and the same opportunities to exercise that capacity. 8
In particular, they shall give women equal rights to conclude contracts and 9
to administer property and shall treat them equally in all stages of procedure 10
in courts and tribunals. 11
3. States Parties agree that all contracts and all other private instruments 12
of any kind with a legal effect which is directed at restricting the legal 13
capacity of women shall be deemed null and void. 14
4. States Parties shall accord to men and women the same rights with 15
regard to the law relating to the movement of persons and the freedom to 16
chose their residence and domicile. 17
Article 16 18
1. States Parties shall take all appropriate measures to eliminate 19
discrimination against women in all matters relating to marriage and family 20
relations and in particular shall ensure, on a basis of equality of men and 21
women-- 22
(a) The same right to enter into marriage; 23
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(b) The same right freely to choose a spouse and to enter into 1
marriage only with their free and full consent; 2
(c) The same rights and responsibilities during marriage and at its 3
dissolution; 4
(d) The same rights and responsibilities as parents, irrespective of 5
their marital status, in maters relating to their children; in all cases 6
the interests of the children shall be paramount; 7
(e) The same rights to decide freely and responsibly on the number 8
and spacing of their children and to have access to the 9
information, education and means to enable them to exercise 10
these rights; 11
(f) The same rights and responsibilities with regard to guardianship, 12
wardship, trusteeship and adoption of children, or similar 13
institutions where these concepts exist in national legislation; in 14
all cases the interests of the children shall be paramount; 15
(g) The same personal rights as husband and wife, including the right 16
to choose a family name, a profession and an occupation; 17
(h) The same rights for both spouses in respect of the ownership, 18
acquisition, management, administration, enjoyment and 19
disposition of property, whether free of charge or for a valuable 20
consideration. 21
2. The betrothal and the marriage of a child shall have no legal effect, and 22
all necessary action, including legislation, shall be taken to specify a 23
minimum age for marriage and to make the registration of marriages in an 24
official registry compulsory. 25
PART V 26
Article 17 27
1. For the purpose of considering the progress made in the 28
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implementation of the present Convention, there shall be established a 1
Committee on the Elimination of Discrimination against Women 2
(hereinafter referred to as the Committee) consisting, at the time of entry 3
into force of the Convention, of eighteen and, after ratification of or 4
accession to the Convention by the thirty-fifth State Party, of twenty-three 5
experts of high moral standing and competence in the field covered by the 6
Convention. The experts shall be elected by States Parties from among 7
their nationals and shall serve in their personal capacity, consideration being 8
given to equitable geographical distribution and to the representation of the 9
different forms of civilisation as well as the principal legal systems. 10
2. The members of the Committee shall be elected by secret ballot from a 11
list of persons nominated by States Parties. Each State Party may nominate 12
one person from among its own nationals. 13
3. The initial election shall be held six months after the date of the entry 14
into force of the present Convention. At least three months before the date 15
of each election the Secretary-General of the United Nations shall address a 16
letter to the States Parties inviting them to submit their nominations within 17
two months. The Secretary-General shall prepare a list in alphabetical order 18
of all persons thus nominated, indicating the States Parties which have 19
nominated them, and shall submit it to the States Parties. 20
4. Elections of the members of the Committee shall be held at a meeting 21
of States Parties convened by the Secretary-General at United Nations 22
Headquarters. At that meeting, for which two thirds of the States Parties 23
shall constitute a quorum, the persons elected to the Committee shall be 24
those nominees who obtain the largest number of votes and an absolute 25
majority of the votes of the representatives of States Parties present and 26
voting. 27
5. The members of the Committee shall be elected for a term of four 28
years. However, the terms of nine of the members elected at the first 29
election shall expire at the end of two years; immediately after the first 30
election the names of these nine members shall be chosen by lot by the 31
Chairman of the Committee. 32
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6. The election of the five additional members of the Committee shall be 1
held in accordance with the provisions of paragraphs 2, 3, and 4 of this 2
article, following the thirty-fifth ratification or accession. The terms of two 3
of the additional members elected on this occasion shall expire at the end of 4
two years, the names of these two members having been chosen by lot by 5
the Chairman of the Committee. 6
7. For the filling of casual vacancies, the State Party whose expert has 7
ceased to function as a member of the Committee shall appoint another 8
expert from among its nationals, subject to the approval of the Committee. 9
8. The members of the Committee shall, with the approval of the General 10
Assembly, receive emoluments from United Nations resources on such 11
terms and conditions as the Assembly may decide, having regard to the 12
importance of the Committee's responsibilities. 13
9. The Secretary-General of the United Nations shall provide the 14
necessary staff and facilities for the effective performance of the functions 15
of the Committee under the present Convention. 16
Article 18 17
1. States Parties undertake to submit to the Secretary-General of the 18
United Nations for consideration by the Committee, a report on the 19
legislative, judicial, administrative or other measures which they have 20
adopted to give effect to the provisions of the present Convention and on the 21
progress made in this respect-- 22
(a) Within one year after the entry into force for the State concerned; 23
and 24
(b) Thereafter at least every four years and further whenever the 25
Committee so requests. 26
2. Reports may indicate factors and difficulties affecting the degree of 27
fulfilment of obligations under the present Convention. 28
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Article 19 1
1. The Committee shall adopt its own rules of procedure. 2
2. The Committee shall elect its officers for a term of two years. 3
Article 20 4
1. The Committee shall normally meet for a period of not more than two 5
weeks annually in order to consider the reports submitted in accordance 6
with Article 18 of the present Convention. 7
2. The meetings of the Committee shall normally be held at United 8
Nations Headquarters or at any other convenient place as determined by the 9
Committee. 10
Article 21 11
1. The Committee shall, through the Economic and Social Council, 12
report annually to the General Assembly of the United Nations on its 13
activities and may make suggestions and general recommendations based 14
on the examination of reports and information received from the States 15
Parties. Such suggestions and general recommendations shall be included 16
in the report of the Committee together with comments, if any, from States 17
Parties. 18
2. The Secretary-General shall transmit the reports of the Committee to 19
the Commission on the Status of Women for its information. 20
Article 22 21
The specialised agencies shall be entitled to be represented at the 22
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consideration of the implementation of such provisions of the present 1
Convention as fall within the scope of their activities. The Committee may 2
invite the specialised agencies to submit reports on the implementation of 3
the Convention in areas falling within the scope of their activities. 4
PART VI 5
Article 23 6
Nothing in this Convention shall affect any provisions that are more 7
conducive to the achievement of equality between men and women which 8
may be contained-- 9
(a) In the legislation of a State Party; or 10
(b) In any other international convention, treaty or agreement in force 11
for that State. 12
Article 24 13
States Parties undertake to adopt all necessary measures at the national 14
level aimed at achieving the full realisation of the rights recognised in the 15
present Convention. 16
Article 25 17
1. The present Convention shall be open for signature by all States. 18
2. The Secretary-General of the United Nations is designated as the 19
depositary of the present Convention. 20
3. The present Convention is subject to ratification. Instruments of 21
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ratification shall be deposited with the Secretary-General of the United 1
Nations. 2
4. The present Convention shall be open to accession by all States. 3
Accession shall be effected by the deposit of an instrument of accession 4
with the Secretary-General of the United Nations. 5
Article 26 6
1. A request for the revision of the present Convention may be made at 7
any time by any State Party by means of a notification in writing addressed 8
to the Secretary-General of the United Nations. 9
2. The General Assembly of the United Nations shall decide upon the 10
steps, if any, to be taken in respect of such a request. 11
Article 27 12
1. The present Convention shall enter into force on the thirtieth day after 13
the date of deposit with the Secretary-General of the United Nations of the 14
twentieth instrument of ratification or accession. 15
2. For each State ratifying the present Convention or acceding to it after 16
the deposit of the twentieth instrument of ratification or accession, the 17
Convention shall enter into force on the thirtieth day after the date of the 18
deposit of its own instrument of ratification or accession. 19
Article 28 20
1. The Secretary-General of the United Nations shall receive and circulate 21
to all States the text of reservations made by States at the time of ratification 22
or accession. 23
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2. A reservation incompatible with the object and purpose of the present 1
Convention shall not be permitted. 2
3. Reservations may be withdrawn at any time by notification to this 3
effect addressed to the Secretary-General of the United Nations, who shall 4
then inform all States thereof. Such notification shall take effect on the date 5
on which it is received. 6
Article 29 7
1. Any dispute between two or more States Parties concerning the 8
interpretation or application of the present Convention which is not settled 9
by negotiation shall, at the request of one of them, be submitted to 10
arbitration. If within six months from the date of the request for arbitration 11
the parties are unable to agree on the organisation of the arbitration, any one 12
of those parties may refer the dispute to the International Court of Justice by 13
request in conformity with the Statute of the Court. 14
2. Each State Party may at the time of signature or ratification of this 15
Convention or accession thereto declare that it does not consider itself 16
bound by paragraph 1 of this article. The other States Parties shall not be 17
bound by that paragraph with respect to any State Party which has made 18
such a reservation. 19
3. Any State Party which has made a reservation in accordance with 20
paragraph 2 of this article may at any time withdraw that reservation by 21
notification to the Secretary-General of the United Nations. 22
Article 30 23
The present Convention, the Arabic, Chinese, English, French, Russian 24
and Spanish texts of which are equally authentic, shall be deposited with the 25
Secretary-General of the United Nations. 26
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IN WITNESS WHEREOF the undersigned, duly authorised, have 1
signed the present Convention. 2
3
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`SCHEDULE 4 1
`DISCRIMINATION (EMPLOYMENT AND 2
OCCUPATION) CONVENTION 3
section 5(1) 4
The General Conference of the International Labour Organisation, 5
Having been convened at Geneva by the Governing Body of the 6
International Labour Office, and having met in its Forty-second 7
Session on 4 June 1958, and 8
Having decided upon the adoption of certain proposals with regard to 9
discrimination in the field of employment and occupation, which 10
is the fourth item on the agenda of the session, and 11
Having determined that these proposals shall take the form of an 12
international Convention, and 13
Considering that the Declaration of Philadelphia affirms that all human 14
beings, irrespective of race, creed or sex, have the right to pursue 15
both their material well-being and their spiritual development in 16
conditions of freedom and dignity, of economic security and 17
equal opportunity, and 18
Considering further that discrimination constitutes a violation of rights 19
enunciated by the Universal Declaration of Human Rights, 20
adopts this twenty-fifth day of June of the year one thousand nine hundred 21
and fifty-eight the following Convention, which may be cited as the 22
Discrimination (Employment and Occupation) Convention, 1958: 23
Article 1 24
1. For the purpose of this Convention the term "discrimination" 25
includes-- 26
(a) any distinction, exclusion or preference made on the basis of race, 27
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colour, sex, religion, political opinion, national extraction or social 1
origin, which has the effect of nullifying or impairing equality of 2
opportunity or treatment in employment or occupation; 3
(b) such other distinction, exclusion or preference which has the 4
effect of nullifying or impairing equality of opportunity or 5
treatment in employment or occupation as may be determined by 6
the Member concerned after consultation with representative 7
employer's and worker's organisations, where such exist, and 8
with other appropriate bodies. 9
2. Any distinction, exclusion or preference in respect of a particular job 10
based on the inherent requirements thereof shall not be deemed to be 11
discrimination. 12
3. For the purpose of this Convention the terms "employment" and 13
"occupation" include access to vocational training, access to employment 14
and to particular occupations, and terms and conditions of employment. 15
Article 2 16
Each Member for which this Convention is in force undertakes to declare 17
and pursue a national policy designed to promote, by methods appropriate 18
to national conditions and practice, equality of opportunity and treatment in 19
respect of employment and occupation, with a view to eliminating any 20
discrimination in respect thereof. 21
Article 3 22
Each Member for which this Convention is in force undertakes, by 23
methods appropriate to national conditions and practice-- 24
(a) to seek the co-operation of employers' and workers' 25
organisations and other appropriate bodies in promoting the 26
acceptance and observance of this policy; 27
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(b) to enact such legislation and to promote such educational 1
programmes as may be calculated to secure the acceptance and 2
observance of the policy; 3
(c) to repeal any statutory provisions and modify any administrative 4
instructions or practices which are inconsistent with the policy; 5
(d) to pursue the policy in respect of employment under the direct 6
control of a national authority; 7
(e) to ensure observance of the policy in the activities of vocational 8
guidance, vocational training and placement services under the 9
direction of a national authority; 10
(f) to indicate in its annual reports on the application of the 11
Convention the action taken in pursuance of the policy and the 12
results secured by such action. 13
Article 4 14
Any measures affecting an individual who is justifiably suspected of, or 15
engaged in, activities prejudicial to the security of the State shall not be 16
deemed to be discrimination, provided that the individual concerned shall 17
have the right to appeal to a competent body established in accordance with 18
national practice. 19
Article 5 20
1. Special measures of protection or assistance provided for in other 21
Conventions or Recommendations adopted by the International Labour 22
conference shall not be deemed to be discrimination. 23
2. Any Member may, after consultation with representative employers' 24
and workers' organisations, where such exist, determine that other special 25
measures designed to meet the particular requirements of persons who, for 26
reasons such as sex, age, disablement, family responsibilities or social or 27
cultural status, are generally recognised to require special protection or 28
assistance, shall not be deemed to be discrimination. 29
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Article 6 1
Each Member which ratifies this Convention undertakes to apply it to 2
non-metropolitan territories in accordance with the provisions of the 3
Constitution of the International Labour Organisation. 4
Article 7 5
The formal ratifications of this Convention shall be communicated to the 6
Director-General of the International Labour Office for registration. 7
Article 8 8
1. This Convention shall be binding only upon those Members of the 9
International Labour Organisation whose ratifications have been registered 10
with the Director-General. 11
2. It shall come into force twelve months after the date on which the 12
ratifications of two Members have been registered with the Director- 13
General. 14
3. Thereafter, this Convention shall come into force for any Member 15
twelve months after the date on which its ratification has been registered. 16
Article 9 17
1. A Member which has ratified this Convention may denounce it after 18
the expiration of ten years from the date on which the Convention first 19
comes into force, by an act communicated to the Director-General of the 20
International Labour Office for registration. 21
Such denunciation shall not take effect until one year after the date on 22
which it is registered. 23
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2. Each Member which has ratified this Convention and which does not, 1
within the year following the expiration of the period of ten years mentioned 2
in the preceding paragraph, exercise the right of denunciation provided for 3
in this Article, will be bound for another period of ten years and, thereafter, 4
may denounce this Convention at the expiration of each period of ten years 5
under the terms provided for in this Article. 6
Article 10 7
1. The Director-General of the International Labour Office shall notify all 8
Members of the International Labour Organisation of the registration of all 9
ratifications and denunciations communicated to him by the Members of 10
the Organisation. 11
2. When notifying the members of the Organisation of the registration of 12
the second ratification communicated to him, the Director-General shall 13
draw the attention of the Members of the Organisation to the date upon 14
which the Convention will come into force. 15
Article 11 16
The Director-General of the International Labour Office shall 17
communicate to the Secretary-General of the United Nations for registration 18
in accordance with Article 102 of the Charter of the United Nations full 19
particulars of all ratifications and acts of denunciation registered by him in 20
accordance with the provisions of the preceding Articles. 21
Article 12 22
At such times as it may consider necessary the Governing Body of the 23
International Labour Office shall present to the General Conference a report 24
on the working of this Convention and shall examine the desirability of 25
placing on the agenda of the Conference the question of its revision in 26
whole or in part. 27
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Article 13 1
1. Should the Conference adopt a new Convention revising this 2
Convention in whole or in part, then, unless the new Convention otherwise 3
provides-- 4
(a) the ratification by a Member of the new revising Convention shall 5
ipso jure involve the immediate denunciation of this Convention, 6
notwithstanding the provisions of Article 9 above, if and when 7
the new revising Convention shall have come into force; 8
(b) as from the date when the new revising Convention comes into 9
force this Convention shall cease to be open to ratification by the 10
Members. 11
2. This Convention shall in any case remain in force in its actual form 12
and content for those Members which have ratified it but have not ratified 13
the revising Convention. 14
Article 14 15
The English and French versions of the text of this Convention are 16
equally authoritative. 17
18
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`SCHEDULE 5 1
ECONOMIC, SOCIAL AND CULTURAL RIGHTS 2
`
COVENANT 3
section 5(1) 4
PREAMBLE 5
The States Parties to the present Covenant, 6
Considering that, in accordance with the principles proclaimed in the 7
Charter of the United Nations, recognition of the inherent dignity and of the 8
equal and inalienable rights of all members of the human family is the 9
foundation of freedom, justice and peace in the world, 10
Recognizing that these rights derive from the inherent dignity of the 11
human person, 12
Recognizing that, in accordance with the Universal Declaration of 13
Human Rights, the ideal of free human beings enjoying freedom from fear 14
and want can only be achieved if conditions are created whereby everyone 15
may enjoy his economic, social and cultural rights, as well as his civil and 16
political rights, 17
Considering the obligation of States under the Charter of the United 18
Nations to promote universal respect for, and observance of, human rights 19
and freedoms, 20
Realizing that the individual, having duties to other individuals and to the 21
community to which he belongs, is under a responsibility to strive for the 22
promotion and observance of the rights recognized in the present Covenant, 23
Agree upon the following articles: 24
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PART II 1
Article 2 2
1. Each State Party to the present Covenant undertakes to take steps, 3
individually and through international assistance and co-operation, 4
especially economic and technical, to the maximum of its available 5
resources, with a view to achieving progressively the full realization of the 6
rights recognized in the present Covenant by all appropriate means, 7
including particularly the 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
present Covenant, the State may subject such rights only to such limitations 24
as are determined by law only in so far as this may be compatible with the 25
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nature of these rights and solely for the purpose of promoting the general 1
welfare in a democratic society. 2
Article 5 3
1. Nothing in the present Covenant may be interpreted as implying for 4
any State, group or person any right to engage in any activity or to perform 5
any act aimed at the destruction of any of the rights or freedoms recognized 6
herein, or at their limitation to a greater extent than is provided for in the 7
present Covenant. 8
2. No restriction upon or derogation from any of the fundamental human 9
rights recognized or existing in any country in virtue of law, conventions, 10
regulations or custom shall be admitted on the pretext that the present 11
Covenant does not recognize such rights or that it recognizes them to a 12
lesser extent. 13
PART III 14
Article 6 15
1. The States Parties to the present Covenant recognize the right to work, 16
which includes the right of everyone to the opportunity to gain his living by 17
work which he freely chooses or accepts, and will take appropriate steps to 18
safeguard this right. 19
2. The steps to be taken by a State Party to the present Covenant to 20
achieve the full realization of this right shall include technical and vocational 21
guidance and training programmes, policies and techniques to achieve 22
steady economic, social and cultural development and full and productive 23
employment under conditions safeguarding fundamental political and 24
economic freedoms to the individual. 25
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Article 7 1
The States Parties to the present Covenant recognize the right of everyone 2
to the enjoyment of just and favourable conditions of work which ensure, in 3
particular-- 4
(a) Remuneration which provides all workers, as a minimum, 5
with-- 6
(i) Fair wages and equal remuneration for work of equal value 7
without distinction of any kind, in particular women being 8
guaranteed conditions of work not inferior to those enjoyed 9
by men, with equal pay for equal work; 10
(ii) A decent living for themselves and their families in 11
accordance with the provisions of the present Covenant; 12
(b) Safe and healthy working conditions; 13
(c) Equal opportunity for everyone to be promoted in his 14
employment to an appropriate higher level, subject to no 15
considerations other than those of seniority and competence; 16
(d) Rest, leisure and reasonable limitation of working hours and 17
periodic holidays with pay, as well as remuneration for public 18
holidays. 19
Article 8 20
1. The States Parties to the present Covenant undertake to ensure-- 21
(a) The right of everyone to form trade unions and join the trade 22
union of his choice, subject only to the rules of the organization 23
concerned, for the promotion and protection of his economic and 24
social interests. No restrictions may be placed on the exercise of 25
this right other than those prescribed by law and which are 26
necessary in a democratic society in the interests of national 27
security or public order or for the protection of the rights and 28
freedoms of others; 29
(b) The right of trade unions to establish national federations or 30
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confederations and the right of the latter to form or join 1
international trade-union organizations; 2
(c) The right of trade unions to function freely subject to no 3
limitations other than those prescribed by law and which are 4
necessary in a democratic society in the interests of national 5
security or public order or for the protection of the rights and 6
freedoms of others; 7
(d) The right to strike, provided that it is exercised in conformity with 8
the laws of the particular country. 9
2. This article shall not prevent the imposition of lawful restrictions on 10
the exercise of these rights by members of the armed forces or of the police 11
or of the administration of the State. 12
3. Nothing in this article shall authorize States Parties to the International 13
Labour Organisation Convention of 1948 concerning Freedom of 14
Association and Protection of the Right to Organize to take legislative 15
measures which would prejudice, or apply the law in such a manner as 16
would prejudice, the guarantees provided for in that Convention. 17
Article 9 18
The States Parties to the present Covenant recognize the right of everyone 19
to social security, including social insurance. 20
Article 10 21
The States Parties to the present Covenant recognize that: 22
1. The widest possible protection and assistance should be accorded to 23
the family, which is the natural and fundamental group unit of society, 24
particularly for its establishment and while it is responsible for the care and 25
education of dependent children. Marriage must be entered into with the free 26
consent of the intending spouses. 27
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2. Special protection should be accorded to mothers during a reasonable 1
period before and after childbirth. During such period working mothers 2
should be accorded paid leave or leave with adequate social security 3
benefits. 4
3. Special measures of protection and assistance should be taken on 5
behalf of all children and young persons without any discrimination for 6
reasons of parentage or other conditions. Children and young persons 7
should be protected from economic and social exploitation. Their 8
employment in work harmful to their morals or health or dangerous to life 9
or likely to hamper their normal development should be punishable by law. 10
States should also set age limits below which the paid employment of child 11
labour should be prohibited and punishable by law. 12
Article 11 13
1. The States Parties to the present Covenant recognize the right of 14
everyone to an adequate standard of living for himself and his family, 15
including adequate food, clothing and housing, and to the continuous 16
improvement of living conditions. The States Parties will take appropriate 17
steps to ensure the realization of this right, recognizing to this effect the 18
essential importance of international cooperation based on free consent. 19
2. The States Parties to the present Covenant, recognizing the 20
fundamental right of everyone to be free from hunger, shall take, 21
individually and through international co-operation, the measures, including 22
specific programmes, which are needed-- 23
(a) To improve methods of production, conservation and distribution 24
of food by making full use of technical and scientific knowledge, 25
by disseminating knowledge of the principles of nutrition and by 26
developing or reforming agrarian systems in such a way as to 27
achieve the most efficient development and utilization of natural 28
resources; 29
(b) Taking into account the problems of both food-importing and 30
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food-exporting countries, to ensure an equitable distribution of 1
world food supplies in relation to need. 2
Article 12 3
1. The States Parties to the present Covenant recognize the right of 4
everyone to the enjoyment of the highest attainable standard of physical and 5
mental health. 6
2. The steps to be taken by the States Parties to the present Covenant to 7
achieve the full realization of this right shall include those necessary for-- 8
(a) The provision for the reduction of the stillbirth-rate and of infant 9
mortality and for the healthy development of the child; 10
(b) The improvement of all aspects of environmental and industrial 11
hygiene; 12
(c) The prevention, treatment and control of epidemic, endemic, 13
occupational and other diseases; 14
(d) The creation of conditions which would assure to all medical 15
service and medical attention in the event of sickness. 16
Article 13 17
1. The States Parties to the present Covenant recognize the right of 18
everyone to education. They agree that education shall be directed to the full 19
development of the human personality and the sense of its dignity, and shall 20
strengthen the respect for human rights and fundamental freedoms. They 21
further agree that education shall enable all persons to participate effectively 22
in a free society, promote understanding, tolerance and friendship among all 23
nations and all racial, ethnic or religious groups, and further the activities of 24
the United Nations for the maintenance of peace. 25
2. The States Parties to the present Covenant recognize that, with a view 26
to achieving the full realization of this right-- 27
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(a) Primary education shall be compulsory and available free to all; 1
(b) Secondary education in its different forms, including technical 2
and vocational secondary education, shall be made generally 3
available and accessible to all by every appropriate means, and in 4
particular by the progressive introduction of free education; 5
(c) Higher education shall be made equally accessible to all, on the 6
basis of capacity, by every appropriate means, and in particular 7
by the progressive introduction of free education; 8
(d) Fundamental education shall be encouraged or intensified as far 9
as possible for those persons who have not received or completed 10
the whole period of their primary education; 11
(e) The development of a system of schools at all levels shall be 12
actively pursued, an adequate fellowship system shall be 13
established, and the material conditions of teaching staff shall be 14
continuously improved. 15
3. The States Parties to the present Covenant undertake to have respect 16
for the liberty of parents and, when applicable, legal guardians to choose for 17
their children schools, other than those established by the public authorities, 18
which conform to such minimum educational standards as may be laid 19
down or approved by the State and to ensure the religious and moral 20
education of their children in conformity with their own convictions. 21
4. No part of this article shall be construed so as to interfere with the 22
liberty of individuals and bodies to establish and direct educational 23
institutions, subject always to the observance of the principles set forth in 24
paragraph 1 of this article and to the requirement that the education given in 25
such institutions shall conform to such minimum standards as may be laid 26
down by the State. 27
Article 14 28
Each State Party to the present Covenant which, at the time of becoming 29
a Party, has not been able to secure in its metropolitan territory or other 30
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territories under its jurisdiction compulsory primary education, free of 1
charge, undertakes, within two years, to work out and adopt a detailed plan 2
of action for the progressive implementation, within a reasonable number of 3
years, to be fixed in the plan, of the principle of compulsory education free 4
of charge for all. 5
Article 15 6
1. The States Parties to the present Covenant recognize the right of 7
everyone-- 8
(a) To take part in cultural life; 9
(b) To enjoy the benefits of scientific progress and its applications; 10
(c) To benefit from the protection of the moral and material interests 11
resulting from any scientific, literary or artistic production of 12
which he is the author. 13
2. The steps to be taken by the States Parties to the present Covenant to 14
achieve the full realization of this right shall include those necessary for the 15
conservation, the development and the diffusion of science and culture. 16
3. The States Parties to the present Covenant undertake to respect the 17
freedom indispensable for scientific research and creative activity. 18
4. The States Parties to the present Covenant recognize the benefits to be 19
derived from the encouragement and development of international contacts 20
and co-operation in the scientific and cultural fields. 21
22
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`SCHEDULE 6 1
EQUAL REMUNERATION RECOMMENDATION 2
`
section 5(1) 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 Thirty-fourth 6
Session on 6 June 1951, and 7
Having decided upon the adoption of certain proposals with regard to 8
the principle of equal remuneration for men and women workers 9
for work of equal value, which is the seventh item on the agenda 10
of the session, and 11
Having determined that these proposals shall take the form of a 12
Recommendation, supplementing the Equal Remuneration 13
Convention, 1951, 14
adopts this twenty-ninth day of June of the year one thousand nine hundred 15
and fifty-one the following Recommendation, which may be cited as the 16
Equal Remuneration Recommendation, 1951: 17
Whereas the Equal Remuneration Convention, 1951, lays down certain 18
general principles concerning equal remuneration for men and women 19
workers for work of equal value; 20
Whereas the Convention provides that the application of the principle of 21
equal remuneration for men and women workers for work of equal value 22
shall be promoted or ensured by means appropriate to the methods in 23
operation for determining rates of remuneration in the countries concerned; 24
Whereas it is desirable to indicate certain procedures for the progressive 25
application of the principles laid down in the Convention; 26
Whereas it is at the same time desirable that all Members should, in 27
applying these principles, have regard to methods of application which have 28
been found satisfactory in certain countries; 29
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The Conference recommends that each Member should, subject to the 1
provisions of Article 2 of the Convention, apply the following provisions 2
and report to the International Labour Office as requested by the Governing 3
Body concerning the measures taken to give effect thereto: 4
1. Appropriate action should be taken, after consultation with the 5
workers' organisations concerned or, where such organisations do not exist, 6
with the workers concerned-- 7
(a) to ensure the application of the principle of equal remuneration 8
for men and women workers for work of equal value to all 9
employees of central Government departments or agencies; and 10
(b) to encourage the application of the principle to employees of 11
State, provincial or local Government departments or agencies, 12
where these have jurisdiction over rates of remuneration. 13
2. Appropriate action should be taken, after consultation with the 14
employers' and workers' organisations concerned, to ensure, as rapidly as 15
practicable, the application of the principle of equal remuneration for men 16
and women workers for work of equal value in all occupations, other than 17
those mentioned in paragraph 1, in which rates of remuneration are subject 18
to statutory regulation or public control, particularly as regards-- 19
(a) the establishment of minimum or other wage rates in industries 20
and services where such rates are determined under public 21
authority; 22
(b) industries and undertakings operated under public ownership or 23
control; and 24
(c) where appropriate, work executed under the terms of public 25
contracts. 26
3.(1) Where appropriate in the light of the methods in operation for the 27
determination of rates of remuneration, provision should be made by legal 28
enactment for the general application of the principle of equal remuneration 29
for men and women for work of equal value. 30
(2) The competent public authority should take all necessary and 31
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appropriate measures to ensure that employers and workers are fully 1
informed as to such legal requirements and, where appropriate, advised on 2
their application. 3
4. When, after consultation with the organisations of workers and 4
employers concerned, where such exist, it is not deemed feasible to 5
implement immediately the principle of equal remuneration for men and 6
women workers for work of equal value, in respect of employment covered 7
by Paragraph 1, 2 or 3, appropriate provision should be made or caused to 8
be made, as soon as possible, for its progressive application, by such 9
measures as-- 10
(a) decreasing the differentials between rates of remuneration for 11
men and rates of remuneration for women for work of equal 12
value; 13
(b) where a system of increments is in force, providing equal 14
increments for men and women workers performing work of 15
equal value. 16
5. Where appropriate for the purpose of facilitating the determination of 17
rates of remuneration in accordance with the principle of equal remuneration 18
for men and women workers for work of equal value, each Member 19
should, in agreement with the employers' and workers' organisations 20
concerned, establish or encourage the establishment of methods for 21
objective appraisal of the work to be performed, whether by job analysis or 22
by other procedures, with a view to providing a classification of jobs 23
without regard to sex; such methods should be applied in accordance with 24
the provisions of Article 2 of the Convention. 25
6. In order to facilitate the application of the principle of equal 26
remuneration for men and women workers for work of equal value, 27
appropriate action should be taken, where necessary, to raise the productive 28
efficiency of women workers by such measures as-- 29
(a) ensuring that workers of both sexes have equal or equivalent 30
facilities for vocational guidance or employment counselling, for 31
vocational training and for placement; 32
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(b) taking appropriate measures to encourage women to use facilities 1
for vocational guidance or employment counselling, for 2
vocational training and for placement; 3
(c) providing welfare and social services which meet the needs of 4
women workers, particularly those with family responsibilities, 5
and financing such services from general public funds or from 6
social security or industrial welfare funds financed by payments 7
made in respect of workers without regard to sex; and 8
(d) promoting equality of men and women workers as regards 9
access to occupations and posts without prejudice to the 10
provisions of international regulations and of national laws and 11
regulations concerning the protection of the health and welfare of 12
women. 13
7. Every effort should be made to promote public understanding of the 14
grounds on which it is considered that the principle of equal remuneration 15
for men and women workers for work of equal value should be 16
implemented. 17
8. Such investigations as may be desirable to promote the application of 18
the principle should be undertaken. 19
20
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`SCHEDULE 7 1
`DISCRIMINATION (EMPLOYMENT AND 2
OCCUPATION) RECOMMENDATION 3
section 5(1) 4
The General Conference of the International Labour Organisation, 5
Having been convened at Geneva by the Governing Body of the 6
International Labour Office, and having met in its Forty-second 7
Session on 4 June 1958, and 8
Having decided upon the adoption of certain proposals with regard to 9
discrimination in the field of employment and occupation, which 10
is the fourth item on the agenda of the session, and 11
Having determined that these proposals shall take the form of a 12
Recommendation supplementing the Discrimination 13
(Employment and Occupation) Convention, 1958, 14
adopts this twenty-fifth day of June of the year one thousand nine hundred 15
and fifty-eight the following Recommendation, which may be cited as the 16
Discrimination (Employment and Occupation) Recommendation, 1958; 17
The Conference recommends that each Member should apply the 18
following provisions: 19
I--DEFINITIONS 20
1.(1) For the purpose of this Recommendation the term 21
"discrimination" includes-- 22
(a) any distinction, exclusion or preference made on the basis of race, 23
colour, sex, religion, political opinion, national extraction or social 24
origin, which has the effect of nullifying or impairing equality of 25
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opportunity or treatment in employment or occupation; 1
(b) such other distinction, exclusion or preference which has the 2
effect of nullifying or impairing equality of opportunity or 3
treatment in employment or occupation as may be determined by 4
the Member concerned after consultation with representative 5
employers' and workers' organisations, which such exist, and 6
with other appropriate bodies. 7
(2) Any distinction, exclusion or preference in respect of a particular job 8
based on the inherent requirements thereof is not deemed to be 9
discrimination. 10
(3) For the purpose of this Recommendation the terms "employment" 11
and "occupation" include access to vocational training, access to 12
employment and to particular occupations, and terms and conditions of 13
employment. 14
II--FORMULATION AND APPLICATION OF 15
POLICY 16
2. Each Member should formulate a national policy for the prevention of 17
discrimination in employment and occupation. This policy should be 18
applied by means of legislative measures, collective agreements between 19
representative employers' and workers' organisations or in any other 20
manner consistent with national conditions and practice, and should have 21
regard to the following principles-- 22
(a) the promotion of equality of opportunity and treatment in 23
employment and occupation is a matter of public concern; 24
(b) all persons should, without discrimination, enjoy equality of 25
opportunity and treatment in respect of-- 26
(i) access to vocational guidance and placement services; 27
(ii) access to training and employment of their own choice on 28
the basis of individual suitability for such training or 29
employment; 30
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(iii) advancement in accordance with their individual character, 1
experience, ability and diligence; 2
(iv) security of tenure of employment; 3
(v) remuneration for work of equal value; 4
(vi) conditions of work including hours of work, rest periods, 5
annual holidays with pay, occupational safety and 6
occupational health measures, as well as social security 7
measures and welfare facilities and benefits provided in 8
connection with employment; 9
(c) government agencies should apply non-discriminatory 10
employment policies in all their activities; 11
(d) employers should not practise or countenance discrimination in 12
engaging or training any person for employment, in advancing or 13
retaining such person in employment, or in fixing terms and 14
conditions of employment; nor should any person or organisation 15
obstruct or interfere, either directly or indirectly, with employers 16
in pursuing this principle; 17
(e) in collective negotiations and industrial relations the parties 18
should respect the principle of equality of opportunity and 19
treatment in employment and occupation, and should ensure that 20
collective agreements contain no provisions of a discriminatory 21
character in respect of access to, training for, advancement in or 22
retention of employment or in respect of the terms and conditions 23
of employment; 24
(f) employers' and workers' organisations should not practise or 25
countenance discrimination in respect of admission, retention of 26
membership or participation in their affairs. 27
3. Each Member should-- 28
(a) ensure application of the principles of non-discrimination-- 29
(i) in respect of employment under the direct control of a 30
national authority; 31
(ii) in the activities of vocational guidance, vocational training and 32
placement services under the direction of a national 33
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authority; 1
(b) promote their observance, where practicable and necessary, in 2
respect of other employment and other vocational guidance, 3
vocational training and placement services by such methods as-- 4
(i) encouraging state, provincial or local government departments 5
or agencies and industries and undertakings operated under 6
public ownership or control to ensure the application of the 7
principles; 8
(ii) making eligibility for contracts involving the expenditure of 9
public funds dependent on observance of the principles; 10
(iii) making eligibility for grants to training establishments and 11
for a licence to operate a private employment agency or a 12
private vocational guidance office dependent on observance 13
of the principles. 14
4. Appropriate agencies, to be assisted where practicable by advisory 15
committees composed of representatives of employers' and workers' 16
organisations, where such exist, and of other interested bodies, should be 17
established for the purpose of promoting application of the policy in all 18
fields of public and private employment, and in particular-- 19
(a) to take all practicable measures to foster public understanding and 20
acceptance of the principles of non-discrimination; 21
(b) to receive, examine and investigate complaints that the policy is 22
not being observed and, if necessary by conciliation, to secure the 23
correction of any practices regarded as in conflict with the policy; 24
and 25
(c) to consider further any complaints which cannot be effectively 26
settled by conciliation and to render opinions or issue decisions 27
concerning the manner in which discriminatory practices revealed 28
should be corrected. 29
5. Each Member should repeal any statutory provisions and modify any 30
administrative instructions or practices which are inconsistent with the 31
policy. 32
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6. Application of the policy should not adversely affect special measures 1
designed to meet the particular requirements of persons who, for reasons 2
such as sex, age, disablement, family responsibilities or social or cultural 3
status are generally recognised to require special protection or assistance. 4
7. Any measures affecting an individual who is justifiably suspected of, 5
or engaged in, activities prejudicial to the security of the State should not be 6
deemed to be discrimination, provided that the individual concerned has the 7
right to appeal to a competent body established in accordance with national 8
practice. 9
8. With respect to immigrant workers of foreign nationality and the 10
members of their families, regard should be had to the provisions of the 11
Migration for Employment Convention (Revised), 1949, relating to equality 12
of treatment and the provisions of the Migration for Employment 13
Recommendation (Revised), 1949, relating to the lifting of restrictions on 14
access to employment. 15
9. There should be continuing co-operation between the competent 16
authorities, representatives of employers and workers and appropriate 17
bodies to consider what further positive measures may be necessary in the 18
light of national conditions to put the principles of non-discrimination into 19
effect. 20
III--COORDINATION OF MEASURES FOR THE 21
PREVENTION OF DISCRIMINATION IN ALL 22
FIELDS 23
10. The authorities responsible for action against discrimination in 24
employment and occupation should co-operate closely and continuously 25
with the authorities responsible for action against discrimination in other 26
fields in order that measures taken in all fields may be co-ordinated. 27
28
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`SCHEDULE 8 1
FAMILY RESPONSIBILITIES CONVENTION 2
`
section 5(1) 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 9
recognises that `all human beings, irrespective of race, creed or 10
sex, have the right to pursue their material well-being and their 11
spiritual development in conditions of freedom and dignity, of 12
economic security and equal opportunity', and 13
Noting the terms of the Declaration on Equality of Opportunity and 14
Treatment for Women Workers and of the resolution concerning 15
a plan of action with a view to promoting equality of opportunity 16
and treatment for women workers, adopted by the International 17
Labour 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 27
the basis of family responsibilities, and considering that 28
supplementary standards are necessary in this respect, and 29
Noting the terms of the Employment (Women with Family 30
Responsibilities) Recommendation, 1965, and considering the 31
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changes which have taken place since its adoption, and 1
Noting that instruments on equality of opportunity and treatment for 2
men and women have also been adopted by the United Nations 3
and other specialised agencies, and recalling, in particular, the 4
fourteenth paragraph of the Preamble of the United Nations 5
Convention on the Elimination of All Forms of Discrimination 6
against Women, 1979, to the effect that States Parties are `aware 7
that a change in the traditional role of men as well as the role of 8
women in society and in the family is needed to achieve full 9
equality between men and women', and 10
Recognising that the problems of workers with family responsibilities 11
are aspects of wider issues regarding the family and society 12
which should be taken into account in national policies, and 13
Recognising the need to create effective equality of opportunity and 14
treatment as between men and women workers with family 15
responsibilities and between such workers and other workers, and 16
Considering that many of the problems facing all workers are 17
aggravated in the case of workers with family responsibilities and 18
recognising the need to improve the conditions of the latter both 19
by measures responding to their special needs and by measures 20
designed to improve the conditions of workers in general, and 21
Having decided upon the adoption of certain proposals with regard to 22
equal opportunities and equal treatment for men and women 23
workers: workers with family responsibilities, which is the fifth 24
item on the agenda of the session, and 25
Having determined that these proposals shall take the form of an 26
international Convention, 27
adopts this twenty-third day of June of the year one thousand nine hundred 28
and eighty-one the following Convention, which may be cited as the 29
Workers with Family Responsibilities Convention, 1981: 30
Article 1 31
1. This Convention applies to men and women workers with 32
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responsibilities in relation to their dependent children, where such 1
responsibilities restrict their possibilities of preparing for, entering, 2
participating in or advancing in economic activity. 3
2. The provisions of this Convention shall also be applied to men and 4
women workers with responsibilities in relation to other members of their 5
immediate family who clearly need their care or support, where such 6
responsibilities restrict their possibilities of preparing for, entering, 7
participating in or advancing in economic activity. 8
3. For the purposes of this Convention, the terms "dependent child" 9
and "other member of the immediate family who clearly needs care or 10
support" mean persons defined as such in each country by one of the 11
means referred to in Article 9 of this Convention. 12
4. The workers covered by virtue of paragraphs 1 and 2 of this Article 13
are hereinafter referred to as "workers with family responsibilities". 14
Article 2 15
This Convention applies to all branches of economic activity and all 16
categories of workers. 17
Article 3 18
1. With a view to creating effective equality of opportunity and treatment 19
for men and women workers, each Member shall make it an aim of 20
national policy to enable persons with family responsibilities who are 21
engaged or wish to engage in employment to exercise their right to do so 22
without being subject to discrimination and, to the extent possible, without 23
conflict between their employment and family responsibilities. 24
2. For the purposes of paragraph 1 of this Article, the term 25
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"discrimination" means discrimination in employment and occupation as 1
defined by Articles 1 and 5 of the Discrimination (Employment and 2
Occupation) Convention, 1958. 3
Article 4 4
With a view to creating effective equality of opportunity and treatment 5
for men and women workers, all measures compatible with national 6
conditions and possibilities shall be taken-- 7
(a) to enable workers with family responsibilities to exercise their 8
right to free choice of employment; and 9
(b) to take account of their needs in terms and conditions of 10
employment and in social security. 11
Article 5 12
All measures compatible with national conditions and possibilities shall 13
further be taken-- 14
(a) to take account of the needs of workers with family 15
responsibilities in community planning; and 16
(b) to develop or promote community services, public or private, 17
such as childcare and family services and facilities. 18
Article 6 19
The competent authorities and bodies in each country shall take 20
appropriate measures to promote information and education which 21
engender broader public understanding of the principle of equality of 22
opportunity and treatment for men and women workers and of the 23
problems of workers with family responsibilities, as well as a climate of 24
opinion conducive to overcoming these problems. 25
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Article 7 1
All measures compatible with national conditions and possibilities, 2
including measures in the field of vocational guidance and training, shall be 3
taken to enable workers with family responsibilities to become and remain 4
integrated in the labour force, as well as to re-enter the labour force after an 5
absence due to those responsibilities. 6
Article 8 7
Family responsibilities shall not, as such, constitute a valid reason for 8
termination of employment. 9
Article 9 10
The provisions of this Convention may be applied by laws or 11
regulations, collective agreements, works rules, arbitration awards, court 12
decisions or a combination of these methods, or in any other manner 13
consistent with national practice which may be appropriate, account being 14
taken of national conditions. 15
Article 10 16
1. The provisions of this Convention may be applied by stages if 17
necessary, account being taken of national conditions--Provided that such 18
measures of implementation as are taken shall apply in any case to all the 19
workers covered by Article 1, paragraph 1. 20
2. Each Member which ratifies this Convention shall indicate in the first 21
report on the application of the Convention submitted under article 22 of the 22
Constitution of the International Labour Organisation in what respect, if 23
any, it intends to make use of the faculty given by paragraph 1 of this 24
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Article, and shall state in subsequent reports the extent to which effect has 1
been given or is proposed to be given to the Convention in that respect. 2
Article 11 3
Employers' and workers' organisations shall have the right to participate, 4
in a manner appropriate to national conditions and practice, in devising and 5
applying measures designed to give effect to the provisions of this 6
Convention. 7
Article 12 8
The formal ratifications of this Convention shall be communicated to the 9
Director-General of the International Labour Office for registration. 10
Article 13 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
Article 14 20
1. A Member which has ratified this Convention may denounce it after 21
the expiration of ten years from the date on which the Convention first 22
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comes into force, by an act communicated to the Director-General of the 1
International Labour Office for registration. Such denunciation shall not take 2
effect until one year after the date on which it is registered. 3
2. Each Member which has ratified this Convention and which does not, 4
within the year following the expiration of the period of ten years mentioned 5
in the preceding paragraph, exercise the right of denunciation provided for 6
in this Article, will be bound for another period of ten years and, thereafter, 7
may denounce this Convention at the expiration of each period of ten years 8
under the terms provided for in this Article. 9
Article 15 10
1. The Director-General of the International Labour Office shall notify all 11
Members of the International Labour Organisation of the registration of all 12
ratifications and denunciations communicated to him by the Members of 13
the Organisation. 14
2. When notifying the Members of the Organisation of the registration of 15
the second ratification communicated to him, the Director-General shall 16
draw the attention of the Members of the Organisation to the date upon 17
which the Convention will come into force. 18
Article 16 19
The Director-General of the International Labour Office shall 20
communicate to the Secretary-General of the United Nations for registration 21
in accordance with Article 102 of the Charter of the United Nations full 22
particulars off all ratifications and acts of denunciation registered by him in 23
accordance with the provisions of the preceding Articles. 24
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Article 17 1
At such dimes as it may consider necessary the Governing Body of the 2
International Labour Office shall present to the General Conference a report 3
on the working of this Convention and shall examine the desirability of 4
placing on the agenda of the conference the question of its revision in whole 5
or in part. 6
Article 18 7
1. Should the Conference adopt a new Convention revising this 8
Convention in whole or in part, then, unless the new Convention otherwise 9
provides-- 10
(a) the ratification by a Member of the new revising Convention shall 11
ipso jure involve the immediate denunciation of this Convention, 12
notwithstanding the provisions of Article 14 above, if and when 13
the new revising Convention shall have come into force; 14
(b) as from the date when the new revising Convention comes into 15
force this Convention shall cease to be open to ratification by the 16
Members. 17
2. This Convention shall in any case remain in force in its actual form 18
and content for those Members which have ratified it but have not ratified 19
the revising Convention. 20
Article 19 21
The English and French versions of the text of this Convention are 22
equally authoritative. 23
The foregoing is the authentic text of the Convention duly adopted by the 24
General Conference of the International Labour Organisation during its 25
Sixty-seventh Session which was held at Geneva and declared closed the 26
twenty-fourth day of June 1981. 27
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IN FAITH WHEREOF we have appended our signatures this 1
twenty-fifth day of June 1981. 2
3
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`SCHEDULE 9 1
WORKERS WITH FAMILY RESPONSIBILITIES 2
`
RECOMMENDATION 3
section 5(1) 4
The General Conference of the International Labour Organisation, 5
Having been convened at Geneva by the Governing Body of the 6
International Labour Office and having met in its Sixty-seventh 7
Session on 3 June 1981, and 8
Noting the Declaration of Philadelphia concerning the Aims and 9
Purposes of the International Labour Organisation which 10
recognises that `all human beings, irrespective of race, creed or 11
sex, have the right to pursue their material well-being and their 12
spiritual development in conditions of freedom and dignity, of 13
economic security and equal opportunity', and 14
Noting the terms of the Declaration on Equality of Opportunity and 15
Treatment for Women Workers and of the resolution concerning 16
a plan of action with a view to promoting equality of opportunity 17
and treatment for women workers, adopted by the International 18
Labour Conference in 1975, and 19
Noting the provisions of international labour Conventions and 20
Recommendations aimed at ensuring equality of opportunity and 21
treatment for men and women workers, namely the Equal 22
Remuneration Convention and Recommendation, 1951, the 23
Discrimination (Employment and Occupation) Convention and 24
Recommendation, 1958, and Part VIII of the Human Resources 25
Development Recommendation, 1975, and 26
Recalling that the Discrimination (Employment and Occupation) 27
Convention, 1958, does not expressly cover distinctions made on 28
the basis of family responsibilities, and considering that 29
supplementary standards are necessary in this respect, and 30
Noting the terms of the Employment (Women with Family 31
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Responsibilities) Recommendation, 1965, and considering the 1
changes which have taken place since its adoption, and 2
Noting that instruments on equality of opportunity and treatment for 3
men and women have also been adopted by the United Nations 4
and other specialised agencies, and recalling, in particular, the 5
fourteenth paragraph of the Preamble of the United Nations 6
Convention on the Elimination of All Forms of Discrimination 7
against Women, 1979, to the effect that States Parties are `aware 8
that a change in the traditional role of men as well as the role of 9
women in society and in the family is needed to achieve full 10
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 13
which 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, 19
and recognising the need to improve the conditions of the latter 20
both by measures responding to their special needs and by 21
measures designed to improve the conditions of workers in 22
general, and 23
Having decided upon the adoption of certain proposals with regard to 24
equal opportunities and equal treatment for men and women 25
workers--workers with family responsibilities, which is the fifth 26
item on the agenda of the session, and 27
Having determined that these proposals shall take the form of a 28
Recommendation, 29
adopts the twenty-third day of June of the year one thousand nine hundred 30
and eighty-one the following Recommendation, which may be cited as the 31
Workers with Family Responsibilities Recommendation, 1981: 32
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I--DEFINITION, SCOPE AND MEANS OF 1
IMPLEMENTATION 2
1.(1) This Recommendation applies to men and women workers with 3
responsibilities in relation to their dependent children, where such 4
responsibilities restrict their possibilities of preparing for, entering, 5
participating in or advancing in economic activity. 6
(2) The provisions of this Recommendation should also be applied to 7
men and women workers with responsibilities in relation to other members 8
of their immediate family who need their care or support, where such 9
responsibilities restrict their possibilities of preparing for, entering, 10
participating in or advancing in economic activity. 11
(3) For the purposes of this Recommendation, the terms "dependent 12
child" and "other member of the immediate family who needs care or 13
support" mean persons defined as such in each country by one of the 14
means referred to in Paragraph 3 of this Recommendation. 15
(4) The workers covered by virtue of subparagraphs (1) and (2) of this 16
Paragraph are hereinafter referred to as "workers with family 17
responsibilities". 18
2. This Recommendation applies to all branches of economic activity and 19
all categories of workers. 20
3. The provisions of this Recommendation may be applied by laws or 21
regulations, collective agreements, works rules, arbitration awards, court 22
decisions or a combination of these methods, or in any other manner 23
consistent with national practice which may be appropriate, account being 24
taken of national conditions. 25
4. The provisions of this Recommendation may be applied by stages if 26
necessary, account being taken of national conditions--Provided that such 27
measures of implementation as are taken should apply in any case to all the 28
workers covered by Paragraph 1, subparagraph (1). 29
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5. Employers' and workers' organisations should have the right to 1
participate, in a manner appropriate to national conditions and practice, in 2
devising and applying measures designed to give effect to the provisions of 3
this Recommendation. 4
II--NATIONAL POLICY 5
6. With a view to creating effective equality of opportunity and treatment 6
for men and women workers, each Member should make it an aim of 7
national policy to enable persons with family responsibilities who are 8
engaged or wish to engage in employment to exercise their right to do so 9
without being subject to discrimination and, to the extent possible, without 10
conflict between their employment and family responsibilities. 11
7. Within the framework of a national policy to promote equality of 12
opportunity and treatment for men and women workers, measures should 13
be adopted and applied with a view to preventing direct or indirect 14
discrimination on the basis of marital status or family responsibilities. 15
8.(1) For the purposes of Paragraphs 6 and 7 above, the term 16
"discrimination" means discrimination in employment and occupation as 17
defined by Articles 1 and 5 of the Discrimination (Employment and 18
Occupation) Convention, 1958. 19
(2) During a transitional period special measures aimed at achieving 20
effective equality between men and women workers should not be regarded 21
as discriminatory. 22
9. With a view to creating effective equality of opportunity and treatment 23
for men and women workers, all measures compatible with national 24
conditions and possibilities should be taken-- 25
(a) to enable workers with family responsibilities to exercise their 26
right to vocational training and to free choice of employment; 27
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(b) to take account of their needs in terms and conditions of 1
employment and in social security; and 2
(c) to develop or promote child-care, family and other community 3
services, public or private, responding to their needs. 4
10. The competent authorities and bodies in each country should take 5
appropriate measures to promote information and education which 6
engender broader public understanding of the principle of equality of 7
opportunity and treatment for men and women workers and of the 8
problems of workers with family responsibilities, as well as a climate of 9
opinion conducive to overcoming these problems. 10
11. The competent authorities and bodies in each country should take 11
appropriate measures-- 12
(a) to undertake or promote such research as may be necessary into 13
the various aspects of the employment of workers with family 14
responsibilities with a view to providing objective information on 15
which sound policies and measures may be based; and 16
(b) to promote such education as will encourage the sharing of 17
family responsibilities between men and women and enable 18
workers with family responsibilities better to meet their 19
employment and family responsibilities. 20
III--TRAINING AND EMPLOYMENT 21
12. All measures compatible with national conditions and possibilities 22
should be taken to enable workers with family responsibilities to become 23
and remain integrated in the labour force, as well as to re-enter the labour 24
force after an absence due to those responsibilities. 25
13. In accordance with national policy and practice, vocational training 26
facilities and, where possible, paid educational leave arrangements to use 27
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such facilities should be made available to workers with family 1
responsibilities. 2
14. Such services as may be necessary to enable workers with family 3
responsibilities to enter or re-enter employment should be available, within 4
the framework of existing services for all workers or, in default thereof, 5
along lines appropriate to national conditions; they should include, free of 6
charge to the workers, vocational guidance, counselling, information and 7
placement services which are staffed by suitably trained personnel and are 8
able to respond adequately to the special needs of workers with family 9
responsibilities. 10
15. Workers with family responsibilities should enjoy equality of 11
opportunity and treatment with other workers in relation to preparation for 12
employment, access to employment, advancement within employment and 13
employment security. 14
16. Marital status, family situation or family responsibilities should not, 15
as such, constitute valid reasons for refusal or termination of employment. 16
IV--TERMS AND CONDITIONS OF EMPLOYMENT 17
17. All measures compatible with national conditions and possibilities 18
and with the legitimate interests of other workers should be taken to ensure 19
that terms and conditions of employment are such as to enable workers 20
with family responsibilities to reconcile their employment and family 21
responsibilities. 22
18. Particular attention should be given to general measures for 23
improving working conditions and the quality of working life, including 24
measures aiming at-- 25
(a) the progressive reduction of daily hours of work and the 26
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reduction of overtime; and 1
(b) more flexible arrangements as regards working schedules, rest 2
periods and holidays; 3
account being taken of the stage of development and the particular needs of 4
the country and of different sectors of activity. 5
19. Whenever practicable and appropriate, the special needs of workers, 6
including those arising from family responsibilities, should be taken into 7
account in shift-work arrangements and assignments to night work. 8
20. Family responsibilities and considerations such as the place of 9
employment of the spouse and the possibilities of educating children should 10
be taken into account when transferring workers from one locality to 11
another. 12
21.(1) With a view to protecting part-time workers, temporary workers 13
and homeworkers, many of whom have family responsibilities, the terms 14
and conditions on which these types of employment are performed should 15
be adequately regulated and supervised. 16
(2) The terms and conditions of employment, including social security 17
coverage, of part-time workers and temporary workers should be, to the 18
extent possible, equivalent to those of full-time and permanent workers 19
respectively; in appropriate cases, their entitlement may be calculated on a 20
pro rata basis. 21
(3) Part-time workers should be given the option to obtain or return to 22
full-time employment when a vacancy exists and when the circumstances 23
which determined assignment to part-time employment no longer exist. 24
22.(1) Either parent should have the possibility, within a period 25
immediately following maternity leave, of obtaining leave of absence 26
(parental leave), without relinquishing employment and with rights resulting 27
from employment being safeguarded. 28
(2) The length of the period following maternity leave and the duration 29
and conditions of the leave of absence referred to in subparagraph (1) of this 30
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Paragraph should be determined in each country by one of the means 1
referred to in Paragraph 3 of this Recommendation. 2
(3) The leave of absence referred to in subparagraph (1) of this Paragraph 3
may be introduced gradually. 4
23.(1) It should be possible for a worker, man or woman, with family 5
responsibilities in relation to a dependent child to obtain leave of absence in 6
the case of its illness. 7
(2) It should be possible for a worker with family responsibilities to 8
obtain leave of absence in the case of the illness of another member of the 9
worker's immediate family who needs that worker's care or support. 10
(3) The duration and conditions of the leave of absence referred to in 11
subparagraphs (1) and (2) of this Paragraph should be determined in each 12
country by one of the means referred to in Paragraph 3 of this 13
Recommendation. 14
V--CHILD-CARE AND FAMILY SERVICES AND 15
FACILITIES 16
24. With a view to determining the scope and character of the child-care 17
and family services and facilities needed to assist workers with family 18
responsibilities to meet their employment and family responsibilities, the 19
competent authorities should, in co-operation with the public and private 20
organisations concerned, in particular employers' and workers' 21
organisations, and within the scope of their resources for collecting 22
information, take such measures as may be necessary and appropriate-- 23
(a) to collect and publish adequate statistics on the number of 24
workers with family responsibilities engaged in or seeking 25
employment and on the number and age of their children and of 26
other dependants requiring care; and 27
(b) to ascertain, through systematic surveys conducted more 28
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particularly in local communities, the needs and preferences for 1
child-care and family services and facilities. 2
25. The competent authorities should, in co-operation with the public and 3
private organisations concerned, take appropriate steps to ensure that 4
child-care and family services and facilities meet the needs and preferences 5
so revealed; to this end they should, taking account of national and local 6
circumstances and possibilities, in particular-- 7
(a) encourage and facilitate the establishment, particularly in local 8
communities, of plans for the systematic development of 9
child-care and family services and facilities, and 10
(b) themselves organise or encourage and facilitate the provision of 11
adequate and appropriate child-care and family services and 12
facilities, free of charge or at a reasonable charge in accordance 13
with the workers' ability to pay, developed along flexible lines 14
and meeting the needs of children of different ages, of other 15
dependants requiring care and of workers with family 16
responsibilities. 17
26.(1) Child-care and family services and facilities of all types should 18
comply with standards laid down and supervised by the competent 19
authorities. 20
(2) Such standards should prescribe in particular the equipment and 21
hygienic and technical requirements of the services and facilities provided 22
and the number and qualifications of the staff. 23
(3) The competent authorities should provide or help to ensure the 24
provision of adequate training at various levels for the personnel needed to 25
staff child-care and family services and facilities. 26
VI--SOCIAL SECURITY 27
27. Social security benefits, tax relief, or other appropriate measures 28
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consistent with national policy should, when necessary, be available to 1
workers with family responsibilities. 2
28. During the leave of absence referred to in Paragraphs 22 and 23, the 3
workers concerned may, in conformity with national conditions and 4
practice, and by one of the means referred to in Paragraph 3 of this 5
Recommendation, be protected by social security. 6
29. A worker should not be excluded from social security coverage by 7
reference to the occupational activity of his or her spouse and entitlement to 8
benefits arising from that activity. 9
30.(1) The family responsibilities of a worker should be an element to be 10
taken into account in determining whether employment offered is suitable in 11
the sense that refusal of the offer may lead to loss or suspension of 12
unemployment benefit. 13
(2) In particular, where the employment offered involves moving to 14
another locality, the considerations to be taken into account should include 15
the place of employment of the spouse and the possibilities of educating 16
children. 17
31. In applying Paragraphs 27 to 30 of this Recommendation, a Member 18
whose economy is insufficiently developed may take account of the national 19
resources and social security arrangements available. 20
VII--HELP IN EXERCISE OF FAMILY 21
RESPONSIBILITIES 22
32. The competent authorities and bodies in each country should promote 23
such public and private action as is possible to lighten the burden deriving 24
from the family responsibilities of workers. 25
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33. All measures compatible with national conditions and possibilities 1
should be taken to develop home-help and home-care services which are 2
adequately regulated and supervised and which can provide workers with 3
family responsibilities, as necessary, with qualified assistance at a 4
reasonable charge in accordance with their ability to pay. 5
34. Since many measures designed to improve the conditions of workers 6
in general can have a favourable impact on those of workers with family 7
responsibilities, the competent authorities and bodies in each country should 8
promote such public and private action as is possible to make the provision 9
of services in the community, such as public transport, supply of water and 10
energy in or near workers' housing and housing with labour-saving layout, 11
responsive to the needs of workers. 12
VIII--EFFECT ON EXISTING RECOMMENDATIONS 13
35. This Recommendation supersedes the Employment (Women with 14
Family Responsibilities) Recommendation, 1965. 15
16
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SCHEDULE 10 1
`
TERMINATION OF EMPLOYMENT CONVENTION 2
`
section 5(1) 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 6
Session on 2 June 1982, and 7
Noting the existing international standards contained in the 8
Termination of Employment Recommendation, 1963, and 9
Noting that since, the adoption of the Termination of Employment 10
Recommendation, 1963, significant developments have occurred 11
in the law and practice of many member States on the questions 12
covered by that Recommendation, and 13
Considering that these developments have made it appropriate to adopt 14
new international standards on the subject, particularly having 15
regard to the serious problems in this field resulting from the 16
economic difficulties and technological changes experienced in 17
recent years in many countries, 18
Having decided upon the adoption of certain proposals with regard to 19
termination of employment at the initiative of the employer, 20
which is 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
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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
where such exist, to exclude from the application of this Convention or 24
certain provisions thereof categories of employed persons whose terms and 25
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conditions of employment are governed by special arrangements which as a 1
whole provide protection that is at least equivalent to the protection afforded 2
under the Convention. 3
5. In so far as necessary, measures may be taken by the competent 4
authority or through the appropriate machinery in a country, after 5
consultation with the organisations of employers and workers concerned, 6
where such exist, to exclude from the application of this Convention or 7
certain provisions thereof other limited categories of employed persons in 8
respect of which special problems of a substantial nature arise in the light of 9
the particular conditions of employment of the workers concerned or the 10
size or nature of the undertaking that employs them. 11
6. Each Member which ratifies this Convention shall list in the first 12
report on the application of the Convention submitted under article 22 of the 13
Constitution of the International Labour Organisation any categories which 14
may have been excluded in pursuance of paragraphs 4 and 5 of this Article, 15
giving the reasons for such exclusion, and shall state in subsequent reports 16
the position of its law and practice regarding the categories excluded, and 17
the extent to which effect has been given or is proposed to be given to the 18
Convention in respect of such categories. 19
Article 3 20
For the purpose of this Convention the terms "termination" and 21
"termination of employment" mean termination of employment at the 22
initiative of the employer. 23
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PART II--STANDARDS OF GENERAL 1
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 17
against an employer involving alleged violation of laws or 18
regulations or 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
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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
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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 14
on 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
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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
Division D--Period of notice 8
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 20
of wages, and paid directly by the employer or by a fund 21
constituted 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
under the normal conditions to which such benefits are subject; or 25
(c) a combination of such allowance and benefits. 26
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2. A worker who does not fulfil the qualifying conditions for 1
unemployment insurance or assistance under a scheme of general scope 2
need not be paid any allowance or benefit referred to in paragraph 1, 3
subparagraph (a), of this Article solely because he is not receiving an 4
unemployment benefit under paragraph 1, subparagraph (b). 5
3. Provision may be made by the methods of implementation referred to 6
in Article 1 of this Convention for loss of entitlement to the allowance or 7
benefits referred to in paragraph 1, subparagraph (a), of this Article in the 8
event of termination for serious misconduct. 9
PART III--SUPPLEMENTARY PROVISIONS 10
CONCERNING TERMINATIONS OF EMPLOYMENT 11
FOR ECONOMIC, TECHNOLOGICAL, 12
STRUCTURAL OR SIMILAR REASONS 13
Division A--Consultation of workers' representatives 14
Article 13 15
1. When the employer contemplates terminations for reasons of an 16
economic, technological, structural or similar nature, the employer shall-- 17
(a) provide the workers' representatives concerned in good time with 18
relevant information including the reasons for the terminations 19
contemplated, the number and categories of workers likely to be 20
affected and the period over which the terminations are intended 21
to be carried out; 22
(b) give, in accordance with national law and practice, the workers' 23
representatives concerned, as early as possible, an opportunity for 24
consultation on measures to be taken to avert or to minimise the 25
terminations and measures to mitigate the adverse effects of any 26
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terminations on the workers concerned such as finding alternative 1
employment. 2
2. The applicability of paragraph 1 of this Article may be limited by the 3
methods of implementation referred to in Article 1 of this Convention to 4
cases in which the number of workers whose termination of employment is 5
contemplated is at least a specified number or percentage of the workforce. 6
3. For the purposes of this Article the term "the workers' 7
representatives concerned" means the workers' representatives 8
recognised as such by national law or practice, in conformity with the 9
Workers' Representatives Convention, 1971. 10
Division B--Notification to the competent authority 11
Article 14 12
1. When the employer contemplates terminations for reasons of an 13
economic, technological, structural or similar nature, he shall notify, in 14
accordance with national law and practice, the competent authority thereof 15
as early as possible, giving relevant information, including a written 16
statement of the reasons for the terminations, the number and categories of 17
workers likely to be affected and the period over which the terminations are 18
intended to be carried out. 19
2. National laws or regulations may limit the applicability of paragraph 1 20
of this Article to cases in which the number of workers whose termination 21
of employment is contemplated is at least a specified number or percentage 22
of the workforce. 23
3. The employer shall notify the competent authority of the terminations 24
referred to in paragraph 1 of this Article a minimum period of time before 25
carrying out the terminations, such period to be specified by national laws 26
or regulations. 27
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PART IV--FINAL PROVISIONS 1
Article 15 2
The formal ratifications of this Convention shall be communicated to the 3
Director-General of the International Labour Office for registration. 4
Article 16 5
1. This Convention shall be binding only upon those Members of the 6
International Labour Organisation whose ratifications have been registered 7
with the Director-General. 8
2. It shall come into force twelve months after the date on which the 9
ratifications of two Members have been registered with the 10
Director-General. 11
3. Thereafter, this Convention shall come into force for any Member 12
twelve months after the date on which its ratification has been registered. 13
Article 17 14
1. A Member which has ratified this Convention may denounce it after 15
the expiration of ten years from the date on which the Convention first 16
comes into force, by an act communicated to the Director-General of the 17
International Labour Office for registration. Such denunciation shall not take 18
effect until one year after the date on which it is registered. 19
2. Each Member which has ratified this Convention and which does not, 20
within the year following the expiration of the period of ten years mentioned 21
in the preceding paragraph, exercise the right of denunciation provided for 22
in this Article, will be bound for another period of ten years and, thereafter, 23
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may denounce this Convention at the expiration of each period of ten years 1
under the terms provided for in this Article. 2
Article 18 3
1. The Director-General of the International Labour Office shall notify all 4
Members of the International Labour Organisation of the registration of all 5
ratifications and denunciations communicated to him by the Members of 6
the Organisation. 7
2. When notifying the Members of the Organisation of the registration of 8
the second ratification communicated to him, the Director-General shall 9
draw the attention of the Members of the Organisation to the date upon 10
which the Convention will come into force. 11
Article 19 12
The Director-General of the International Labour Office shall 13
communicate to the Secretary-General of the United Nations for registration 14
in accordance with article 102 of the Charter of the United Nations full 15
particulars of all ratifications and acts of denunciation registered by him in 16
accordance with the provisions of the preceding Articles. 17
Article 20 18
At such times as it may consider necessary the Governing Body of the 19
International Labour Office shall present to the General Conference a report 20
on the working of this Convention and shall examine the desirability of 21
placing on the agenda of the conference the question of its revision in whole 22
or in part. 23
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Article 21 1
1. Should the Conference adopt a new Convention revising this 2
Convention in whole or in part, then, unless the new Convention otherwise 3
provides-- 4
(a) the ratification by a Member of the new revising Convention shall 5
ipso jure involve the immediate denunciation of this Convention, 6
notwithstanding the provisions of Article 17 above, if and when 7
the new revising Convention shall have come into force; 8
(b) as from the date when the new revising Convention comes into 9
force this Convention shall cease to be open to ratification by the 10
Members. 11
2. This Convention shall in any case remain in force in its actual form 12
and content for those Members which have ratified it but have not ratified 13
the revising Convention. 14
Article 22 15
The English and French versions of the text of this Convention are 16
equally authoritative. 17
The foregoing is the authentic text of the Convention duly adopted by the 18
General Conference of the International Labour Organisation during its 19
Sixty-eighth Session which was held at Geneva and declared closed the 20
twenty-third day of June 1982. 21
IN FAITH WHEREOF we have appended our signatures this 22
twenty-third day of June 1982. 23
24
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SCHEDULE 11 1
`
`FREEDOM OF ASSOCIATION AND PROTECTION 2
OF THE RIGHT TO ORGANISE CONVENTION 3
section 139DA 4
The General Conference of the International Labour Organisation, 5
Having been convened at San Francisco by the Governing Body of the 6
International Labour Office, and having met in its Thirty-first 7
Session on 17 June 1948; 8
Having decided to adopt, in the form of a Convention, certain 9
proposals concerning freedom of association and protection of the 10
right to organise, which is the seventh item on the agenda of the 11
session; 12
Considering that the Preamble to the Constitution of the International 13
Labour Organisation declares `recognition of the principle of 14
freedom of association' to be a means of improving conditions of 15
labour and of establishing peace; 16
Considering that the Declaration of Philadelphia reaffirms that 17
`freedom of expression and of association are essential to 18
sustained progress'; 19
Considering that the International Labour Conference, at its Thirtieth 20
Session, unanimously adopted the principles which should form 21
the basis for international regulation; 22
Considering that the General Assembly of the United Nations, at its 23
Second Session, endorsed these principles and requested the 24
International Labour Organisation to continue every effort in 25
order that it may be possible to adopt one or several international 26
Conventions; 27
adopts this ninth day of July of the year one thousand nine hundred and 28
forty-eight the following Convention, which may be cited as the Freedom 29
of Association and Protection of the Right to Organise Convention, 1948: 30
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PART I--FREEDOM OF ASSOCIATION 1
Article 1 2
1. Each Member of the International Labour Organisation for which this 3
Convention is in force undertakes to give effect to the following provisions. 4
Article 2 5
Workers and employers, without distinction whatsoever, shall have the 6
right to establish and, subject only to the rules of the organisation 7
concerned, to join organisations of their own choosing without previous 8
authorisation. 9
Article 3 10
1. Workers' and employers' organisations shall have the right to draw up 11
their constitutions and rules, to elect their representatives in full freedom, to 12
organise their administration and activities and to formulate their 13
programmes. 14
2. The public authorities shall refrain from any interference which would 15
restrict this right or impede the lawful exercise thereof. 16
Article 4 17
Workers' and employers' organisations shall not be liable to be 18
dissolved or suspended by administrative authority. 19
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Article 5 1
Workers' and employers' organisations shall have the right to establish 2
and join federations and confederations and any such organisation, 3
federation or confederation shall have the right to affiliate with international 4
organisations of workers and employers. 5
Article 6 6
The provisions of Articles 2, 3 and 4 hereof apply to federations and 7
confederations of workers' and employers' organisations. 8
Article 7 9
The acquisition of legal personality by workers' and employers' 10
organisations, federations and confederations shall not be made subject to 11
conditions of such a character as to restrict the application of the provisions 12
of Articles 2, 3 and 4 hereof. 13
Article 8 14
1. In exercising the rights provided for in this Convention workers and 15
employers and their respective organisations, like other persons or 16
organised collectivities, shall respect the law of the land. 17
2. The law of the land shall not be such as to impair, nor shall it be so 18
applied as to impair, the guarantees provided for in this Convention. 19
Article 9 20
1. The extent to which the guarantees provided for in this Convention 21
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shall apply to the armed forces and the police shall be determined by 1
national laws or regulations. 2
2. In accordance with the principle set forth in paragraph 8 of article 19 of 3
the Constitution of the International Labour Organisation the ratification of 4
this Convention by any Member shall not be deemed to affect any existing 5
law, award, custom or agreement in virtue of which members of the armed 6
forces or the police enjoy any right guaranteed by this Convention. 7
Article 10 8
In this Convention the term "organisation" means any organisation of 9
workers or of employers for furthering and defending the interests of 10
workers or of employers. 11
PART II--PROTECTION OF THE RIGHT TO 12
ORGANISE 13
Article 11 14
Each Member of the International Labour Organisation for which this 15
Convention is in force undertakes to take all necessary and appropriate 16
measures to ensure that workers and employers may exercise freely the 17
right to organise. 18
19
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SCHEDULE 12 1
`
RIGHT TO ORGANISE AND COLLECTIVE 2
`
BARGAINING CONVENTION 3
section 139DA 4
The General Conference of the International Labour Organisation, 5
Having been convened at Geneva by the Governing Body of the 6
International Labour Office and having met in its Thirty-second 7
Session on 8 June 1949, and 8
Having decided upon the adoption of certain proposals concerning the 9
application of the principles of the right to organise and to bargain 10
collectively, which is the fourth item on the agenda of the session, 11
and 12
Having determined that these proposals shall take the form of an 13
international Convention, 14
adopts this first day of July of the year one thousand nine hundred and 15
forty-nine the following Convention, which may be cited as the Right to 16
Organise and Collective Bargaining Convention, 1949: 17
Article 1 18
1. Workers shall enjoy adequate protection against acts of anti-union 19
discrimination in respect of their employment. 20
2. Such protection shall apply more particularly in respect of acts 21
calculated to-- 22
(a) make the employment of a worker subject to the condition that he 23
shall not join a union or shall relinquish trade union membership; 24
(b) cause the dismissal of or otherwise prejudice a worker by reason 25
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of union membership or because of participation in union 1
activities outside working hours or, with the consent of the 2
employer, within working hours. 3
Article 2 4
1. Workers' and employers' organisations shall enjoy adequate 5
protection against any acts of interference by each other or each other's 6
agents or members in their establishment, functioning or administration. 7
2. In particular, acts which are designed to promote the establishment of 8
workers' organisations under the domination of employers or employers' 9
organisations, or to support workers' organisations by financial or other 10
means, with the object of placing such organisations under the control of 11
employers or employers' organisations, shall be deemed to constitute acts 12
of interference within the meaning of this Article. 13
Article 3 14
Machinery appropriate to national conditions shall be established, where 15
necessary, for the purpose of ensuring respect for the right to organise as 16
defined in the preceding Articles. 17
Article 4 18
Measures appropriate to national conditions shall be taken, where 19
necessary, to encourage and promote the full development and utilisation of 20
machinery for voluntary negotiation between employers or employers' 21
organisations and workers' organisations, with a view to the regulation of 22
terms and conditions of employment by means of collective agreements. 23
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Article 5 1
1. The extent to which the guarantees provided for in this Convention 2
shall apply to the armed forces and the police shall be determined by 3
national laws or regulations. 4
2. In accordance with the principle set forth in paragraph 8 of article 19 of 5
the Constitution of the International Labour Organisation the ratification of 6
this Convention by any Member shall not be deemed to affect any existing 7
law, award, custom or agreement in virtue of which members of the armed 8
forces or the police enjoy any right guaranteed by this Convention. 9
Article 6 10
This Convention does not deal with the position of public servants 11
engaged in the administration of the State, nor shall it be construed as 12
prejudicing their rights or status in any way. 13
14
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SCHEDULE 13 1
`
TERMINATION OF EMPLOYMENT 2
`
RECOMMENDATION 3
section 175AA 4
The General Conference of the International Labour Organisation, 5
Having been convened at Geneva by the Governing Body of the 6
International Labour Office, and having met in its Sixty-eighth 7
Session on 2 June 1982, and 8
Having decided upon the adoption of certain proposals with regard to 9
termination of employment at the initiative of the employer, 10
which is the fifth item on the agenda of the session, and 11
Having determined that these proposals shall take the form of a 12
Recommendation supplementing the Termination of 13
Employment Convention, 1982; 14
adopts this twenty-second day of June of the year one thousand nine 15
hundred and eighty-two, the following Recommendation, which may be 16
cited as the Termination of Employment Recommendation, 1982: 17
I--METHODS OF IMPLEMENTATION, SCOPE AND 18
DEFINITIONS 19
1. The provisions of this Recommendation may be applied by national 20
laws or regulations, collective agreements, works rules, arbitration awards 21
or court decisions or in such other manner consistent with national practice 22
as may be appropriate under national conditions. 23
2.(1) This Recommendation applies to all branches of economic activity 24
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and to all employed persons. 1
(2) A Member may exclude the following categories of employed 2
persons from all or some of the provisions of this Recommendation-- 3
(a) workers engaged under a contract of employment for a specified 4
period of time or a specified task; 5
(b) workers serving a period of probation or a qualifying period of 6
employment, determined in advance and of reasonable duration; 7
(c) workers engaged on a casual basis for a short period. 8
(3) In so far as necessary, measures may be taken by the competent 9
authority or through the appropriate machinery in a country, after 10
consultation with the organisations of employers and workers concerned, 11
where such exist, to exclude from the application of this Recommendation 12
or certain provisions thereof categories of employed persons whose terms 13
and conditions of employment are governed by special arrangements, 14
which as a whole provide protection that is at least equivalent to the 15
protection afforded under the Recommendation. 16
(4) In so far as necessary, measures may be taken by the competent 17
authority or through the appropriate machinery in a country, after 18
consultation with the organisations of employers and workers concerned, 19
where such exist, to exclude from the application of this Recommendation 20
or certain provisions thereof other limited categories of employed persons 21
in respect of which special problems of a substantial nature arise in the light 22
of the particular conditions of employment of the workers concerned or the 23
size or nature of the undertaking that employs them. 24
3.(1) Adequate safeguards should be provided against recourse to 25
contracts of employment for a specified period of time the aim of which is 26
to avoid the protection resulting from the Termination of Employment 27
Convention, 1982, and this Recommendation. 28
(2) To this end, for example, provision may be made for one or more of 29
the following-- 30
(a) limiting recourse to contracts for a specified period of time to 31
cases in which, owing either to the nature of the work to be 32
effected or to the circumstances under which it is to be effected or 33
to the interests of the worker, the employment relationship cannot 34
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be of indeterminate duration; 1
(b) deeming contracts for a specified period of time, other than in the 2
cases referred to in clause (a) of this subparagraph, to be contracts 3
of employment of indeterminate duration; 4
(c) deeming contracts for a specified period of time, when renewed 5
on one or more occasions, other than in the cases mentioned in 6
clause (a) of this subparagraph, to be contracts of employment of 7
indeterminate duration. 8
4. For the purpose of this Recommendation the terms "termination" 9
and "termination of employment" mean termination of employment at 10
the initiative of the employer. 11
II--STANDARDS OF GENERAL APPLICATION 12
Justification for Termination 13
5. In addition to the grounds referred to in Article 5 of the Termination of 14
Employment Convention, 1982, the following should not constitute valid 15
reasons for termination-- 16
(a) age, subject to national law and practice regarding retirement; 17
(b) absence from work due to compulsory military service or other 18
civic obligations, in accordance with national law and practice. 19
6.(1) Temporary absence from work because of illness or injury should 20
not constitute a valid reason for termination. 21
(2) The definition of what constitutes temporary absence from work, the 22
extent to which medical certification should be required and possible 23
limitations to the application of subparagraph (1) of this Paragraph should 24
be determined in accordance with the methods of implementation referred 25
to in Paragraph 1 of this Recommendation. 26
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Procedure prior to or at the time of termination 1
7. The employment of a worker should not be terminated for misconduct 2
of a kind that under national law or practice would justify termination only 3
if repeated on one or more occasions, unless the employer has given the 4
worker appropriate written warning. 5
8. The employment of a worker should not be terminated for 6
unsatisfactory performance, unless the employer has given the worker 7
appropriate instructions and written warning and the worker continues to 8
perform his duties unsatisfactorily after a reasonable period of time for 9
improvement has elapsed. 10
9. A worker should be entitled to be assisted by another person when 11
defending himself, in accordance with Article 7 of the Termination of 12
Employment Convention, 1982, against allegations regarding his conduct 13
or performance liable to result in the termination of his employment; this 14
right may be specified by the methods of implementation referred to in 15
Paragraph 1 of this Recommendation. 16
10. The employer should be deemed to have waived his right to 17
terminate the employment of a worker for misconduct if he has failed to do 18
so within a reasonable period of time after he has knowledge of the 19
misconduct. 20
11. The employer may consult workers' representatives before a final 21
decision is taken on individual cases of termination of employment. 22
12. The employer should notify a worker in writing of a decision to 23
terminate his employment. 24
13.(1) A worker who has been notified of termination of employment or 25
whose employment has been terminated should be entitled to receive, on 26
request, a written statement from his employer of the reason or reasons for 27
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the termination. 1
(2) Subparagraph (1) of this Paragraph need not be applied in the case of 2
collective termination for the reasons referred to in Articles 13 and 14 of the 3
Termination of Employment Convention, 1982, if the procedure provided 4
for therein is followed. 5
Procedure of appeal against termination 6
14. Provision may be made for recourse to a procedure of conciliation 7
before or during appeal proceedings against termination of employment. 8
15. Efforts should be made by public authorities, workers' 9
representatives and organisations of workers to ensure that workers are 10
fully informed of the possibilities of appeal at their disposal. 11
Time off from work during the period of notice 12
16. During the period of notice referred to in Article 11 of the 13
Termination of Employment Convention, 1982, the worker should, for the 14
purpose of seeking other employment, be entitled to a reasonable amount of 15
time off without loss of pay, taken at times that are convenient to both 16
parties. 17
Certificate of employment 18
17. A worker whose employment has been terminated should be entitled 19
to receive, on request, a certificate from the employer specifying only the 20
dates of his engagement and termination of his employment and the type or 21
types of work on which he was employed; nevertheless, and at the request 22
of the worker, an evaluation of his conduct and performance may be given 23
in this certificate or in a separate certificate. 24
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Severance allowance and other income protection 1
18.(1) A worker whose employment has been terminated should be 2
entitled, in accordance with national law and practice, to-- 3
(a) a severance allowance or other separation benefits, the amount of 4
which should be based, inter alia, on length of service and the 5
level of wages, and paid directly by the employer or by a fund 6
constituted by employers' contributions; or 7
(b) benefits from unemployment insurance or assistance or other 8
forms of social security, such as old-age or invalidity benefits, 9
under the normal conditions to which such benefits are subject; or 10
(c) a combination of such allowance and benefits. 11
(2) A worker who does not fulfil the qualifying conditions for 12
unemployment insurance or assistance under a scheme of general scope 13
need not be paid any allowance or benefit referred to in subparagraph (1)(a) 14
of this Paragraph solely because he is not receiving an unemployment 15
benefit under subparagraph (1)(b). 16
(3) Provision may be made by the methods of implementation referred 17
to in Paragraph 1 of this Recommendation for loss of entitlement to the 18
allowance or benefits referred to in subparagraph (1)(a) of this Paragraph in 19
the event of termination for serious misconduct. 20
III--SUPPLEMENTARY PROVISIONS 21
CONCERNING TERMINATIONS OF EMPLOYMENT 22
FOR ECONOMIC, TECHNOLOGICAL, 23
STRUCTURAL OR SIMILAR REASONS 24
19.(1) All parties concerned should seek to avert or minimise as far as 25
possible termination of employment for reasons of an economic, 26
technological, structural or similar nature, without prejudice to the efficient 27
operation of the undertaking, establishment or service, and to mitigate the 28
adverse effects of any termination of employment for these reasons on the 29
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worker or workers concerned. 1
(2) Where appropriate, the competent authority should assist the parties 2
in seeking solutions to the problems raised by the terminations 3
contemplated. 4
Consultations on major changes in the undertaking 5
20.(1) When the employer contemplates the introduction of major 6
changes in production, program, organisation, structure or technology that 7
are likely to entail terminations, the employer should consult the workers' 8
representatives concerned as early as possible on, inter alia, the introduction 9
of such changes, the effects they are likely to have and the measures for 10
averting or mitigating the adverse effects of such changes. 11
(2) To enable the workers' representatives concerned to participate 12
effectively in the consultations referred to in subparagraph (1) of this 13
Paragraph, the employer should supply them in good time with all relevant 14
information on the major changes contemplated and the effects they are 15
likely to have. 16
(3) For the purposes of this Paragraph the term "the workers' 17
representatives concerned" means the workers' representatives 18
recognised as such by national law or practice, in conformity with the 19
Workers' Representatives Convention, 1971. 20
Measures to avert or minimise termination 21
21. The measures which should be considered with a view to averting or 22
minimising terminations of employment for reasons of an economic, 23
technological, structural or similar nature might include, inter alia, restriction 24
of hiring, spreading the workforce reduction over a certain period of time to 25
permit natural reduction of the workforce, internal transfers, training and 26
retraining, voluntary early retirement with appropriate income protection, 27
restriction of overtime and reduction of normal hours of work. 28
22. Where it is considered that a temporary reduction of normal hours of 29
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work would be likely to avert or minimise terminations of employment due 1
to temporary economic difficulties, consideration should be given to partial 2
compensation for loss of wages for the normal hours not worked, financed 3
by methods appropriate under national law and practice. 4
Criteria for selection for termination 5
23.(1) The selection by the employer of workers whose employment is 6
to be terminated for reasons of an economic, technological, structural or 7
similar nature should be made according to criteria, established wherever 8
possible in advance, which give due weight both to the interests of the 9
undertaking, establishment or service and to the interests of the workers. 10
(2) These criteria, their order of priority and their relative weight, should 11
be determined by the methods of implementation referred to in Paragraph 1 12
of this Recommendation. 13
Priority of rehiring 14
24.(1) Workers whose employment has been terminated for reasons of 15
an economic, technological, structural or similar nature, should be given a 16
certain priority of rehiring if the employer again hires workers with 17
comparable qualifications, subject to their having, within a given period 18
from the time of their leaving, expressed a desire to be rehired. 19
(2) Such priority of rehiring may be limited to a specified period of time. 20
(3) The criteria for the priority of rehiring, the question of retention of 21
rights--particularly seniority rights--in the event of rehiring, as well as the 22
terms governing the wages of rehired workers, should be determined 23
according to the methods of implementation referred to in Paragraph 1 of 24
this Recommendation. 25
Mitigating the effects of termination 26
25.(1) In the event of termination of employment for reasons of an 27
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economic, technological, structural or similar nature, the placement of the 1
workers affected in suitable alternative employment as soon as possible, 2
with training or retraining where appropriate, should be promoted by 3
measures suitable to national circumstances, to be taken by the competent 4
authority, where possible with the collaboration of the employer and the 5
workers' representatives concerned. 6
(2) Where possible, the employer should assist the workers affected in 7
the search for suitable alternative employment, for example through direct 8
contacts with other employers. 9
(3) In assisting the workers affected in obtaining suitable alternative 10
employment or training or retraining, regard may be had to the Human 11
Resources Development Convention and Recommendation, 1975. 12
26.(1) With a view to mitigating the adverse effects of termination of 13
employment for reasons of an economic, technological, structural or similar 14
nature, consideration should be given to providing income protection during 15
any course of training or retraining and partial or total reimbursement of 16
expenses connected with training or retraining and with finding and taking 17
up employment which requires a change of residence. 18
(2) The competent authority should consider providing financial 19
resources to support in full or in part the measures referred to in 20
subparagraph (1) of this Paragraph, in accordance with national law and 21
practice. 22
IV--EFFECT ON EARLIER RECOMMENDATION 23
27. This Recommendation and the Termination of Employment 24
Convention, 1982, supersede the Termination of Employment 25
Recommendation, 1963.'. 26
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PART 3--AMENDMENT OF PUBLIC SERVICE 1
MANAGEMENT AND EMPLOYMENT ACT 1988 2
amended 3
Act
This Part amends the Public Service Management and 4
Clause40.
Employment Act 1988. 5
of s 40 (Cooperation between State and Commonwealth 6
Amendment
Services) 7
Clause41. Section 40(2) and (3)-- 8
omit, insert-- 9
`(2) The Governor in Council, or a Minister authorised by the Governor 10
in Council, may make arrangements with the appropriate Commonwealth 11
authority for performance by an officer of the Commonwealth public 12
service, for the Queensland Government, of any work or services or of 13
duties of any office within the Queensland public service. 14
`(3) The Governor in Council, or a Minister authorised by the Governor 15
in Council, at the request of the appropriate Commonwealth authority may 16
authorise and cause any work or services to be performed for the 17
Commonwealth Government by an officer of the Queensland public 18
service.'. 19
PART 4--AMENDMENT OF VOCATIONAL 20
EDUCATION, TRAINING AND EMPLOYMENT ACT 21
1991 22
amended 23
Act
This Part amends the Vocational Education, Training and 24
Clause42.
Employment Act 1991. 25
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of Schedule (National Vocational Education and Training 1
Relocation
Statement) 2
Schedule-- 3
Clause43.
relocate after Part 5. 4
5
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CHEDULE 1
¡S
INOR AMENDMENTS 2
M
section 3 3
1. Sections 5(1) (definitions "bonus payment", "eligible employee" and 4
"young employee"), 16, 32, 36(4)(a) and (b), (7) and (8), 37(2), 39(1)(a) 5
and (b), 40(1) and (3), 41(1) and (4), 52(a)(v), 53(1) and (2), 77(2), 6
78(2)(a)(ii), 79(c), 90(1)(b), 98(6)(a), 140(1) and (4), 141(1), (6), (7) and 7
(9), 142, 143, 144, 145(5), 146(1), 149(1), 151(1), (2) and (4), 152(1), (2) 8
and (8), 153(2)(b), 154(a) and (b), 156(1), 157(1), 158(1) and (3), 9
160(1)(c)(iv)(A), 165(1), (3) and (4), 166(2) and (4), 170(1)(d), 171(1)(a) 10
and (3), 187(10), 204(b)(ii) and (c)(i), 259(6), 264(5)(c), 291(2)(c)(ii)(A), 11
309(1)(a)(i) and (ii), 310(2)(a), 314(c) and (d), 342(1)(c), 343(4), 344(1), 12
358(2)(b)(i), 359(4)(a)(iii), 362(3)(c)(i) and (4), 373, 374, 377(3), 385(b), 13
386, 405(6)(c), 412, 462(1)(a), (3) and (4), 464(1)-- 14
omit `or certified agreement', 15
insert `, certified agreement or enterprise flexibility agreement'. 16
2. Sections 5(1) (definition "party"), 6(3)(d)(i), 13(1)(b)(iii)(B), 15, 17
17(a)(ii), 49(1)(a)(vi), 52(a)(ii) and (iii)(A) and (B), 159(1)(a), 180(2), 18
353(1)(c), (e) and (g) and (4), 362(1)(a) and (b) and (3)(c)(iii) and (f), 19
363(1)(a) and (b), 383, 385, 405(1) and (2)(a) and (b), 461(1) and (2), 20
463(1) and (3), 466(1), (3) and (4), 467(1), 469(2)(a), 472(a), after 21
`certified agreement'-- 22
insert `, enterprise flexibility agreement'. 23
3. Section 34(3) and (4)-- 24
omit `Employment, Vocational Education and Training Act 1988', 25
insert `Vocational Education, Training and Employment Act 1991'. 26
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Industrial Relations Reform
4. Section 36(4)(b), after `industrial agreement' (1st mention)-- 1
insert `, certified agreement, enterprise flexibility agreement'. 2
5. Section 41(1), 2nd and 3rd mentions-- 3
omit `industrial agreement', insert `agreement'. 4
6. Section 78(2)-- 5
insert-- 6
`(ca) a copy of an enterprise flexibility agreement, bearing a certificate 7
purporting to be that of the Industrial Registrar that is a true copy, 8
is admissible as evidence of the agreement, its execution as 9
shown in the copy and its approval by the Commission; and'. 10
7. Section 90(1) and (2)-- 11
omit `section 89(4)', insert `section 89(5)'. 12
8. Section 93(3)-- 13
omit. 14
9. Sections 135(1), 136, 138 and 139(1)-- 15
omit `, industrial agreement or certified agreement', 16
insert `or industrial agreement'. 17
10. Sections 140(1) and 149(1), after `employer, and an' 18
insert `employee or'. 19
11. Section 150(3)(a)-- 20
omit `Employment, Vocational Education and Training Act 1988', 21
insert `Vocational Education, Training and Employment Act 1991'. 22
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12. Section 153(2)(a)-- 1
omit `Employment, Vocational Education and Training Act 1988', 2
insert `Vocational Education, Training and Employment Act 1991'. 3
13. Section 204(c)(ii), after `award'-- 4
insert `, industrial agreement, certified agreement, enterprise flexibility 5
agreement'. 6
14. Sections 275(1)(d) and 277(1)(b)-- 7
omit `and certified agreements', 8
insert `, certified agreements and enterprise flexibility agreements'. 9
10
© State of Queensland 1994
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