Commonwealth Consolidated Acts

WORKPLACE RELATIONS AND OTHER LEGISLATION AMENDMENT ACT 1996 - SCHEDULE 13

Part 1—Amendments

Workplace Relations Act 1996

1  Subsection 4(1) (definition of bans clause )

Repeal the definition.

2  Subsection 4(1) (at the end of the definition of industrial action )

Add:

                 or (g)  action by an employee if:

                              (i)  the action was based on a reasonable concern by the employee about an imminent risk to his or her health or safety; and

                             (ii)  the employee did not unreasonably fail to comply with a direction of his or her employer to perform other available work, whether at the same or another workplace, that was safe and appropriate for the employee to perform.

3  Section 124

Repeal the section, substitute:

124  Commission not to deal with claims for payments in relation to periods of industrial action

             (1)  The Commission does not have power to deal with a claim for the making of any payment to employees in relation to a period during which those employees engaged, or engage, in industrial action.

             (2)  Subsection (1) applies to a claim for the making of a payment in relation to a period, whether before or after the making of the claim, or before or after the commencement of this section.

4  Section 125

Repeal the section.

5  Section 127

Repeal the section, substitute:

127  Orders to stop or prevent industrial action

             (1)  If it appears to the Commission that industrial action is happening, or is threatened, impending or probable, in relation to:

                     (a)  an industrial dispute; or

                     (b)  the negotiation or proposed negotiation of an agreement under Division 2 of Part VIB; or

                     (c)  work that is regulated by an award or a certified agreement;

the Commission may, by order, give directions that the industrial action stop or not occur.

             (2)  The Commission may make such an order of its own motion, or on the application of:

                     (a)  a party to the industrial dispute (if any); or

                     (b)  a person who is directly affected, or who is likely to be directly affected, by the industrial action; or

                     (c)  an organisation of which a person referred to in paragraph (b) is a member.

             (3)  The Commission must hear and determine an application for an order under this section as quickly as practicable.

             (4)  The powers conferred on the Commission by subsection (1) are in addition to, and not in derogation of, the powers conferred on the Commission by the rest of this Act.

             (5)  A person or organisation to whom an order under subsection (1) is expressed to apply must comply with the order.

             (6)  The Court may, on the application of a person or organisation affected by an order under subsection (1), grant an injunction on such terms as the Court considers appropriate if it is satisfied that another person or organisation:

                     (a)  has engaged in conduct that constitutes a contravention of subsection (5); or

                     (b)  is proposing to engage in conduct that would constitute such a contravention.

             (7)  If, in the opinion of the Court it is desirable to do so, the Court may grant an interim injunction pending determination of an application under subsection (6).

6  Division 8 of Part VI (heading)

Repeal the heading.

7  Sections 165 and 166

Repeal the sections.

8  At the end of subsection 166A(2)

Add:

               ; or (d)  conduct that is in breach of a direction given by the Commission or a State industrial authority.

9  At the end of section 166A

Add:

             (7)  If:

                     (a)  the conduct stops before the end of the 72 hours referred to in paragraph (6)(c); and

                     (b)  after the conduct stopped, other conduct occurred; and

                     (c)  in the Commission’s opinion, the other conduct is substantially related to the first‑mentioned conduct;

then, for the purposes of paragraph (6)(c):

                     (d)  the other conduct is taken to be part of the first‑mentioned conduct; and

                     (e)  the period of the first‑mentioned conduct is taken to include the period of the other conduct.

10  Section 167

Repeal the section.

11  Division 2 of Part VIII

Repeal the Division.

12  After Part VIII

Insert:

Part VIIIA—Payments in relation to periods of industrial action

187AA  Payments not to be made or accepted in relation to periods of industrial action

             (1)  An employer must not make a payment to an employee in relation to a period during which the employee engaged, or engages, in industrial action if:

                     (a)  the employer or employee was or is a member of an organisation during that period; or

                     (b)  the employer was or is a constitutional corporation bound by an award, a certified agreement or an AWA during that period; or

                     (c)  the industrial action was taken, or is being taken, in connection with work regulated by an award, a certified agreement or an AWA; or

                     (d)  the industrial action was taken, or is being taken, in relation to an industrial dispute; or

                     (e)  the industrial action was or is of a kind referred to in paragraph (a), (b) or (c) of the definition of industrial action in subsection 4(1); or

                      (f)  the industrial action was taken, or is being taken, in a Territory.

Note:          For constitutional corporation , see subsection 4(1).

             (2)  An employee must not accept a payment from an employer if the employer would contravene subsection (1) by making the payment.

             (3)  A contravention of subsection (1) or (2) is not an offence.

187AB  Organisations not to take action for payments in relation to periods of industrial action

             (1)  An organisation, or an officer, member or employee of an organisation, must not:

                     (a)  make a claim for an employer to make a payment to an employee in relation to a period during which the employee engaged, or engages, in industrial action; or

                     (b)  organise or engage in, or threaten to organise or engage in, industrial action against an employer with intent to coerce the employer to make such a payment.

             (2)  For the purposes of subsection (1), action done by one of the following bodies or persons is taken to have been done by an organisation:

                     (a)  the committee of management of the organisation;

                     (b)  an officer, employee or agent of the organisation acting in that capacity;

                     (c)  a member or group of members of the organisation acting under the rules of the organisation;

                     (d)  a member of the organisation, who performs the function of dealing with an employer on behalf of the member and other members of the organisation, acting in that capacity.

             (3)  Paragraphs (2)(c) and (d) do not apply if:

                     (a)  a committee of management of the organisation; or

                     (b)  a person authorised by the committee; or

                     (c)  an officer of the organisation;

has taken reasonable steps to prevent the action.

             (4)  A contravention of subsection (1) is not an offence.

187AC  Applications to the Court

             (1)  An application may be made to the Court for orders under section 187AD in respect of contraventions of section 187AA or 187AB.

             (2)  The application may be made by:

                     (a)  the Minister; or

                     (b)  a person who has an interest in the matter; or

                     (c)  any other person prescribed by the regulations.

             (3)  In the case of a contravention of section 187AB, the application may also be made by the employer in question.

             (4)  A regulation prescribing persons for the purposes of paragraph (2)(c) may limit its application to specified circumstances.

187AD  Orders that the Court may make

             (1)  In respect of contraventions of section 187AA or 187AB, the Court may, if the Court considers it appropriate in all the circumstances of the case, make one or more of the following orders:

                     (a)  an order imposing on a person who contravened or is contravening that section a penalty of not more than $10,000;

                     (b)  if the person contravened or is contravening section 187AB—an order requiring the person to pay to an employer compensation of such amount as the Court thinks appropriate;

                     (c)  injunctions (including interim injunctions), and any other orders, that the Court considers necessary to stop the contravention or remedy its effects;

                     (d)  any other consequential orders.

             (2)  The Court must not make an order under paragraph (1)(b) requiring compensation to be paid to an employer who has contravened subsection 187AA(1) in connection with the contravention referred to in that paragraph.

13  At the end of paragraph 294(1)(a)

Add “or”.

14  At the end of subsection 294(1)

Add:

               ; or (d)  the organisation, or a substantial number of the members of the organisation or of a section or class of members of the organisation, has or have failed to comply with an injunction granted under subsection 127(6) or (7); or

                     (e)  the organisation, or a substantial number of the members of the organisation or of a section or class of members of the organisation, has or have failed to comply with an injunction granted under section 187AD.

15  At the end of section 294

Add:

             (7)  A finding of fact by the Court in proceedings under section 127 or Part VIIIA is admissible as prima facie evidence of that fact in an application made on a ground specified in paragraph (1)(d) or (e), as the case requires.

Part 2—Transitional provision

16  Bans clauses

Despite items 1, 4, 6, 7 and 11, sections 125 and 166 and Division 2 of Part VIII of the Workplace Relations Act, as in force immediately before the commencement of those items, continue to apply in relation to a bans clause that was in force immediately before that commencement.