Commonwealth Consolidated Acts Commonwealth Consolidated Acts1 Subsection 4(1) (definition of industrial action )
Before “means”, insert “(except in Part XA)”.
2 Subsection 4(1) (at the end of paragraph (d) of the definition of industrial action )
Add:
, if:
(i) the persons are members of an organisation and the failure or refusal is in accordance with a decision made, or direction given, by an organisation, the committee of management of the organisation, or an officer or a group of members of the organisation acting in that capacity; or
(ii) the failure or refusal is in connection with an industrial dispute; or
(iii) the persons are employed by the Commonwealth or a constitutional corporation; or
(iv) the persons are employed in a Territory;
3 Subsection 4(1) (definition of industrial dispute )
Before “means”, insert “(except in Part XA)”.
4 After section 93A
Insert:
94 Limitation on powers of Commission relating to discrimination and preference
The Commission does not have power to include terms in an award that require or permit, or have the effect of requiring or permitting, any conduct that would contravene Part XA.
5 Section 122
Repeal the section.
6 After Part X
Insert:
Part XA—Freedom of association
As well as the objects set out in section 3, this Part has these objects:
(a) to ensure that employers, employees and independent contractors are free to join industrial associations of their choice or not to join industrial associations; and
(b) to ensure that employers, employees and independent contractors are not discriminated against or victimised because they are, or are not, members or officers of industrial associations.
(1) In this Part, unless the contrary intention appears:
"conduct" includes an omission.
"industrial action" means:
(a) the performance of work in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to work, the result of which is a restriction or limitation on, or a delay in, the performance of the work, where:
(i) the terms and conditions of the work are prescribed, wholly or partly, by an industrial instrument or an order of an industrial body; or
(ii) the work is performed, or the practice is adopted, in connection with an industrial dispute; or
(b) a ban, limitation or restriction on the performance of work, or acceptance of or offering for work, in accordance with the terms and conditions prescribed by an industrial instrument or by an order of an industrial body; or
(c) a ban, limitation or restriction on the performance of work, or on acceptance of or offering for work, that is adopted in connection with an industrial dispute; or
(d) a failure or refusal by persons to attend for work or a failure or refusal to perform any work at all by persons who attend for work;
but does not include:
(e) action by employees that is authorised or agreed to by the employer of the employees; or
(f) action by an employer that is authorised or agreed to by or on behalf of employees of the employer; 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.
"industrial association" means:
(a) an association of employees and/or independent contractors, or an association of employers, that is registered or recognised as such an association (however described) under an industrial law; or
(b) an association of employees and/or independent contractors a principal purpose of which is the protection and promotion of their interests in matters concerning their employment, or their interests as independent contractors, as the case requires; or
(c) an association of employers a principal purpose of which is the protection and promotion of their interests in matters concerning employment and/or independent contractors;
and includes a branch of such an association, and an organisation.
"industrial body" means:
(a) the Commission; or
(b) a court or commission, however designated, exercising under an industrial law powers and functions corresponding to those conferred on the Commission by this Act.
"industrial dispute" means:
(a) an industrial dispute (including a threatened, impending or probable industrial dispute) that is about matters pertaining to the relationship between employers and employees; or
(b) a situation that is likely to give rise to an industrial dispute of the kind referred to in paragraph (a); or
(c) a dispute arising between 2 or more industrial associations, or within an industrial association, as to the rights, status or functions of members of the associations or association in relation to the employment of those members; or
(d) a dispute arising between employers and employees, or between members of different industrial associations, as to the demarcation of functions of employees or classes of employees; or
(e) a dispute about the representation under an industrial law of the industrial interests of employees by an industrial association of employees.
"industrial instrument" means an award or agreement, however designated, that:
(a) is made under or recognised by an industrial law; and
(b) concerns the relationship between an employer and the employer’s employees, or provides for the prevention or settlement of a dispute between an employer and the employer’s employees.
"industrial law" means this Act or a law, however designated, of the Commonwealth or of a State or Territory that regulates the relationships between employers and employees or provides for the prevention or settlement of disputes between employers and employees.
"officer , " in relation to an industrial association, includes:
(a) a delegate or other representative of the association; and
(b) an employee of the association.
"organisation" includes a branch of an organisation.
(2) For the purposes of this Part, action done by one of the following bodies or persons is taken to have been done by an industrial association:
(a) the committee of management of the industrial association;
(b) an officer or agent of the industrial association acting in that capacity;
(c) a member or group of members of the industrial association acting under the rules of the association;
(d) a member of the industrial association, who performs the function of dealing with an employer on behalf of the member and other members of the association, acting in that capacity.
(3) Paragraphs (2)(c) and (d) do not apply if:
(a) a committee of management of the industrial association; or
(b) a person authorised by the committee; or
(c) an officer of the industrial association;
has taken reasonable steps to prevent the action.
(4) For the purposes of this Part:
(a) conduct is capable of constituting industrial action even if the conduct relates to part only of the duties that persons are required to perform in the course of their employment; and
(b) a reference to industrial action includes a reference to a course of conduct consisting of a series of industrial actions.
Division 2—Conduct to which this Part applies
This Part applies only to the extent provided in this Division.
This Part applies to:
(a) conduct by an organisation; and
(b) conduct by an officer of an organisation acting in that capacity; and
(c) conduct carried out with a purpose or intent relating to a person’s membership or non‑membership of an organisation.
This Part applies to conduct carried out with a purpose or intent relating to a person’s participation or non‑participation in industrial action within the meaning of subsection 4(1).
Note: This section does not use the broader definition of industrial action set out in section 298B.
298F Matters arising under this Act
(1) This Part applies to conduct carried out with a purpose or intent relating to a person’s participation or non‑participation (in any capacity) in:
(a) any proceedings under this Act; or
(b) any other activity for which this Act provides.
(2) This Part applies to conduct carried out with a purpose or intent relating to:
(a) the fact that an award, a certified agreement or an AWA applies to a person’s employment; or
(b) the fact that the person is bound by an award, a certified agreement or an AWA.
298G Constitutional corporations
(1) This Part applies to:
(a) conduct by a constitutional corporation; and
(b) conduct that adversely affects a constitutional corporation.
(2) For the purpose of paragraph (1)(b), conduct is taken to affect adversely a constitutional corporation only if:
(a) the constitutional corporation is the person, referred to in the provision of this Division in question, against whom the conduct has been, is being or would be carried out; or
(b) the person so referred to is an employee of the constitutional corporation, or has been engaged by the constitutional corporation as an independent contractor, and the conduct affects the person in that capacity.
Note: For constitutional corporation , see subsection 4(1).
This Part applies to conduct in a Territory.
298J Operation of State and Territory laws
Subject to section 298W, to the extent that this Part applies by virtue of the operation of section 298G or 298H, it is not intended to exclude or limit the concurrent operation of any law of a State or Territory.
Division 3—Conduct by employers etc.
298K Dismissal etc. of members of industrial associations etc.
(1) An employer must not, for a prohibited reason, or for reasons that include a prohibited reason, do or threaten to do any of the following:
(a) dismiss an employee;
(b) injure an employee in his or her employment;
(c) alter the position of an employee to the employee’s prejudice;
(d) refuse to employ another person;
(e) discriminate against another person in the terms or conditions on which the employer offers to employ the other person.
(2) A person must not, for a prohibited reason, or for reasons that include a prohibited reason, do or threaten to do any of the following:
(a) terminate a contract for services that he or she has entered into with an independent contractor;
(b) injure the independent contractor in relation to the terms and conditions of the contract for services;
(c) alter the position of the independent contractor to the independent contractor’s prejudice;
(d) refuse to engage another person as an independent contractor;
(e) discriminate against another person in the terms or conditions on which the person offers to engage the other person as an independent contractor.
(1) Conduct referred to in subsection 298K(1) or (2) is for a prohibited reason if it is carried out because the employee, independent contractor or other person concerned:
(a) is, has been, proposes to become or has at any time proposed to become an officer, delegate or member of an industrial association; or
(b) is not, or does not propose to become, a member of an industrial association; or
(c) in the case of a refusal to engage another person as an independent contractor:
(i) has one or more employees who are not, or do not propose to become, members of an industrial association; or
(ii) has not paid, or does not propose to pay, a fee (however described) to an industrial association; or
(d) has refused or failed to join in industrial action; or
(e) in the case of an employee—has refused or failed to agree or consent to, or vote in favour of, the making of an agreement to which an industrial association of which the employee is a member would be a party; or
(f) has made, proposes to make or has at any time proposed to make an application to an industrial body for an order under an industrial law for the holding of a secret ballot; or
(g) has participated in, proposes to participate in or has at any time proposed to participate in a secret ballot ordered by an industrial body under an industrial law; or
(h) is entitled to the benefit of an industrial instrument or an order of an industrial body; or
(i) has made or proposes to make any inquiry or complaint to a person or body having the capacity under an industrial law to seek:
(i) compliance with that law; or
(ii) the observance of a person’s rights under an industrial instrument; or
(j) has participated in, proposes to participate in or has at any time proposed to participate in a proceeding under an industrial law; or
(k) has given or proposes to give evidence in a proceeding under an industrial law; or
(l) in the case of an employee, or an independent contractor, who is a member of an industrial association that is seeking better industrial conditions—is dissatisfied with his or her conditions; or
(m) in the case of an employee or an independent contractor—has absented himself or herself from work without leave if:
(i) the absence was for the purpose of carrying out duties or exercising rights as an officer of an industrial association; and
(ii) the employee or independent contractor applied for leave before absenting himself or herself and leave was unreasonably refused or withheld; or
(n) as an officer or member of an industrial association, has done, or proposes to do, an act or thing for the purpose of furthering or protecting the industrial interests of the industrial association, being an act or thing that is:
(i) lawful; and
(ii) within the limits of an authority expressly conferred on the employee, independent contractor or other person by the industrial association under its rules.
(2) If:
(a) a threat is made to engage in conduct referred to in subsection 298K(1) or (2); and
(b) one of the prohibited reasons in subsection (1) of this section refers to a person doing or proposing to do a particular act, or not doing or proposing not to do a particular act; and
(c) the threat is made with the intent of dissuading or preventing the person from doing the act, or coercing the person to do the act, as the case requires;
the threat is taken to have been made for that prohibited reason.
298M Inducements to cease membership etc. of industrial associations etc.
An employer, or a person who has engaged an independent contractor, must not (whether by threats or promises or otherwise) induce an employee, or the independent contractor, (as the case requires) to stop being an officer or member of an industrial association.
Division 4—Conduct by employees etc.
An employee or independent contractor must not cease work in the service of his or her employer, or of the person who engaged the independent contractor, (as the case requires) because the employer or person:
(a) is an officer or member of an industrial association; or
(b) is entitled to the benefit of an industrial instrument or an order of an industrial body; or
(c) has made or proposes to make any inquiry or complaint to a person or body having the capacity under an industrial law to seek:
(i) compliance with that law; or
(ii) the observance of a person’s rights under an industrial instrument; or
(d) has participated in, proposes to participate in or has at any time proposed to participate in any proceedings under an industrial law; or
(e) has given evidence in a proceeding under an industrial law.
Division 5—Conduct by industrial associations etc.
298P Industrial associations acting against employers
(1) An industrial association, or an officer or member of an industrial association, must not organise or take, or threaten to organise or take, industrial action against an employer because the employer is an officer or member of an industrial association.
(2) An industrial association, or an officer or member of an industrial association, must not organise or take, or threaten to organise or take, industrial action against an employer with intent to coerce the employer or person:
(a) to become a member of an industrial association of employers; or
(b) to cease to be an officer or member of such an association; or
(c) not to become an officer or member of such an association.
(3) An industrial association, or an officer or member of an industrial association, must not:
(a) advise, encourage or incite an employer; or
(b) organise or take, or threaten to organise or take, industrial action against an employer with intent to coerce the employer;
to take action in relation to a person that would, if taken, contravene section 298K.
(4) An industrial association, or an officer or member of an industrial association, must not, because a member of the association has refused or failed to comply with a direction given by the association:
(a) advise, encourage or incite an employer; or
(b) organise or take, or threaten to organise or take, industrial action against an employer with intent to coerce the employer;
to prejudice the member in the member’s employment or possible employment.
(5) For the purposes of subsection (4), a direction given by one of the following bodies or persons is taken to have been given by an industrial association:
(a) the committee of management of the association;
(b) an officer or agent of the association acting in that capacity;
(c) a member or group of members of the association authorised to give the direction by:
(i) the rules of the association; or
(ii) the committee of management of the association; or
(iii) an officer or agent of the association acting in that capacity;
(d) a member of the association, who performs the function of dealing with an employer on behalf of the member and other members of the association, acting in that capacity.
298Q Industrial associations acting against employees etc.
An industrial association, or an officer or member of an industrial association, must not take, or threaten to take, action having the effect, directly or indirectly, of prejudicing a person in the person’s employment or possible employment with intent:
(a) to coerce the person to join in industrial action; or
(b) to dissuade or prevent the person from making an application to an industrial body for an order under an industrial law for the holding of a secret ballot.
298R Industrial associations acting against members
An industrial association, or an officer or member of an industrial association, must not impose, or threaten to impose, a penalty, forfeiture or disability of any kind on a member of the association:
(a) with intent to coerce the member to join in industrial action; or
(b) because the member has refused or failed to join in industrial action; or
(c) because the member has made, proposes to make or has at any time proposed to make an application to an industrial body for an order under an industrial law for the holding of a secret ballot; or
(d) has participated in, proposes to participate in or has at any time proposed to participate in a secret ballot ordered by an industrial body under an industrial law.
298S Industrial associations acting against independent contractors etc.
(1) In this section:
"discriminatory action" , in relation to an eligible person, means:
(a) a refusal to make use of, or to agree to make use of, services offered by the eligible person; or
(b) a refusal to supply, or to agree to supply, goods or services to the eligible person.
"eligible person" means a person who is not an employee, but who:
(a) is eligible to join an industrial association; or
(b) would be eligible to join an industrial association if he or she were an employee.
(2) An industrial association, or an officer or member of an industrial association, must not:
(a) advise, encourage or incite a person (whether an employer or not) to take discriminatory action against an eligible person because the eligible person is not a member of an industrial association; or
(b) take, or threaten to take, industrial action against an employer with intent to coerce the employer to take discriminatory action against an eligible person because the eligible person is not a member of an industrial association; or
(c) take, or threaten to take, industrial action against an eligible person with intent to coerce the person to join an industrial association.
Division 6—Remedies for breaches of this Part
298T Applications to the Court
(1) Subject to subsection (4), an application may be made to the Court for orders under section 298U in respect of conduct in contravention of this Part.
(2) The application may be made by:
(a) the person, referred to in the provision in question, against whom the conduct has been, is being or would be carried out; or
(b) in the case of a contravention of this Part by virtue of the operation of section 298D, 298E or 298F—an organisation of which the person is a member; or
(c) in the case of a contravention of this Part by virtue of the operation of section 298G or 298H—an industrial association of which the person is a member; or
(d) the Employment Advocate; or
(e) any other person prescribed by the regulations.
(3) A regulation prescribing persons for the purpose of paragraph (2)(e) may limit its application to specified circumstances.
(4) An application cannot be made in respect of conduct in contravention of this Part by virtue of the operation of section 298G or 298H if:
(a) an application has already been made for a remedy in respect of the conduct under a law of a State or Territory; and
(b) that application has not failed for lack of jurisdiction.
(5) The reference in paragraph (4)(a) to a remedy is taken not to include the imposition of a criminal penalty.
298U Orders that the Federal Court may make
In respect of conduct in contravention of this Part, 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 or industrial association whose conduct contravened or is contravening the provision in question a penalty of not more than:
(i) in the case of a body corporate—$10,000; or
(ii) in any other case—$2,000;
(b) an order requiring the person or industrial association to reinstate an employee, or to re‑engage an independent contractor;
(c) an order requiring the person or industrial association to pay to an employee or independent contractor, or to a prospective employee or independent contractor, compensation of such amount as the Court thinks appropriate;
(d) an order requiring the person or industrial association not to carry out a threat made by the person or association, or not to make any further threat;
(e) injunctions (including interim injunctions), and any other orders, that the Court thinks necessary to stop the conduct or remedy its effects;
(f) any other consequential orders.
298V Proof not required of the reason for, or the intention of, conduct
If:
(a) in an application under this Division relating to a person’s or an industrial association’s conduct, it is alleged that the conduct was, or is being, carried out for a particular reason or with a particular intent; and
(b) for the person or industrial association to carry out the conduct for that reason or with that intent would constitute a contravention of this Part;
it is presumed, in proceedings under this Division arising from the application, that the conduct was, or is being, carried out for that reason or with that intent, unless the person or industrial association proves otherwise.
(1) This section applies if a person’s or industrial association’s conduct contravenes:
(a) this Part by virtue of the operation of section 298G or 298H; and
(b) a provision of an industrial law of a State or Territory, being a provision that deals with discrimination or preference in employment.
(2) If an application is made under Division 6 in respect of the conduct, an application cannot be made, under the industrial law of the State or Territory or any other law, in respect of that conduct.
(3) Subsection (2) does not preclude a person or industrial association being prosecuted for an offence, or any applications being made in connection with such a prosecution.
(4) If an application is made under the industrial law of the State or Territory in respect of the conduct, an application cannot be made under Division 6 in respect of that conduct.
(5) Subsection (4) does not preclude an application being made under Division 6 if the application under the industrial law of the State or Territory was made in connection with the prosecution of the person or industrial association for an offence.
298X Contravention of this Part not an offence
A contravention of this Part is not an offence.
298Y Provisions of industrial instruments requiring or permitting conduct in contravention of this Part
A provision of an industrial instrument, or an agreement or arrangement (whether written or unwritten), is void to the extent that it requires or permits, or has the effect of requiring or permitting, any conduct that would contravene this Part.
7 Sections 334, 335 and 336
Repeal the sections.
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