Commonwealth Consolidated Acts Commonwealth Consolidated Acts1 Subsection 4(1)
Insert:
"authorised officer" means an authorised officer appointed under Part IVA.
"Employment Advocate" means the Employment Advocate referred to in Part IVA.
2 After Part IV
Insert:
Part IVA—The Employment Advocate
Division 1—Functions, powers etc. of the Employment Advocate
There is to be an Employment Advocate.
(1) The Employment Advocate has the following functions:
(a) providing assistance and advice to employees about their rights and obligations under this Act;
(b) providing assistance and advice to employers (especially employers in small business) about their rights and obligations under this Act;
(c) providing advice to employers and employees, in connection with AWAs, about the relevant award and statutory entitlements and about the relevant provisions of this Act;
(d) performing functions under Part VID, including functions relating to the filing and approval of AWAs and ancillary documents;
(e) investigating alleged breaches of AWAs, alleged contraventions of Part VID and any other complaints relating to AWAs;
(f) investigating contraventions of Part XA;
(g) providing free legal representation to a party in a proceeding under Part VID or Part XA, if the Employment Advocate considers this would promote the enforcement of the provisions of those Parts;
(h) providing aggregated statistical information to the Minister;
(i) any other functions given to the Employment Advocate by this Act or any other Act;
(j) any other functions prescribed by the regulations.
(2) In performing his or her functions, the Employment Advocate must have particular regard to:
(a) the needs of workers in a disadvantaged bargaining position (for example: women, people from a non‑English speaking background, young people, apprentices, trainees and outworkers); and
(b) assisting workers to balance work and family responsibilities; and
(c) promoting better work and management practices through Australian workplace agreements.
83BC Minister’s directions to Employment Advocate
(1) The Minister may, by notice published in the Gazette , give directions specifying the manner in which the Employment Advocate must exercise or perform the powers or functions of Employment Advocate (other than powers or functions relating to the approval of AWAs and ancillary documents).
(2) The Employment Advocate must comply with the directions.
(3) A direction by the Minister is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901 .
The staff necessary to assist the Employment Advocate are to be persons appointed or employed under the Public Service Act 1922 and made available for the purpose by the Secretary to the Department.
83BE Delegation by Employment Advocate
(1) The Employment Advocate may, by instrument in writing, delegate any of the Employment Advocate’s powers or functions to:
(a) a person who is appointed or employed by the Commonwealth; or
(b) a person who is appointed or employed by a State or Territory.
(2) The Employment Advocate’s functions under Part VID relating to the approval of AWAs and ancillary documents can only be delegated to a member of the staff referred to in section 83BD.
(3) The Employment Advocate may, by written instrument, delegate a function referred to in paragraph 83BB(a), (b) or (c) to any person.
(4) In exercising powers or functions under a delegation, the delegate must comply with any directions of the Employment Advocate.
(1) As soon as practicable after the end of each financial year, the Employment Advocate must prepare and give to the Minister a report on the operations of the Employment Advocate during that year.
(2) The report must include details of directions given by the Minister during the financial year under section 83BC.
(3) The Minister must cause a copy of the report to be laid before each House of the Parliament.
Division 2—Authorised officers
83BG Appointment of authorised officers
(1) The Employment Advocate may, by instrument in writing, appoint as an authorised officer:
(a) a person who is appointed or employed by the Commonwealth; or
(b) a person who is appointed or employed by a State or Territory.
(2) In exercising powers or performing functions as an authorised officer, an authorised officer must comply with any directions of the Employment Advocate.
(3) The Employment Advocate must issue to an authorised officer an identity card in the form prescribed by the regulations. The identity card must contain a recent photograph of the authorised officer.
(4) If a person to whom an identity card has been issued ceases to be an authorised officer, the person must immediately return the identity card to the Employment Advocate.
(5) A person must not contravene subsection (4) without a reasonable excuse.
Penalty: 1 penalty unit.
(6) An authorised officer must carry the identity card at all times when exercising powers or performing functions as an authorised officer.
83BH Powers of authorised officers
(1) An authorised officer may exercise powers under this section for the following purposes ( compliance purposes ):
(a) for the purpose of ascertaining whether the terms of an AWA have been complied with, or are being complied with;
(b) for the purpose of ascertaining whether the provisions of Part VID or Part XA have been complied with, or are being complied with;
(c) for the purpose of ascertaining whether other provisions of this Act that are prescribed by the regulations have been complied with, or are being complied with.
(2) The powers may be exercised at any time during ordinary working hours or at any other time at which it is necessary to do so for compliance purposes.
(3) An authorised officer may, without force, enter:
(a) a place of business in which the authorised officer has reasonable cause to believe that work to which an AWA applies is being performed or has been performed; or
(b) a place of business in which the authorised officer has reasonable cause to believe that there are documents relevant to compliance purposes.
(4) An authorised officer may do any of the following in a place referred to in subsection (3):
(a) inspect any work, material, machinery, appliance, article or facility;
(b) as prescribed by the regulations, take samples of any goods or substances;
(c) interview any employee;
(d) require a person who has the custody of, or access to, a document to produce the document to the authorised officer within a specified period;
(e) inspect and copy any document produced to the authorised officer.
(5) If a person fails to comply with a requirement under subsection (4) to produce a document, an authorised officer may, by written notice served on the person, require the person to produce the document at a specified place within a specified period (not being less than 14 days).
(6) Where a document is produced to an authorised officer under subsection (5), the authorised officer may:
(a) inspect and copy the document; and
(b) if the authorised officer gives a receipt to the person who produced the document—retain the document for as long as necessary for the purpose of exercising powers or performing functions as an authorised officer.
(7) While an authorised officer retains a document, the authorised officer must permit the document to be inspected and copied, at any reasonable time, by:
(a) the person otherwise entitled to possession of the document; or
(b) a person authorised by the person otherwise entitled to possession of the document.
(8) Before entering a place under this section, an authorised officer must announce that he or she is authorised to enter the place. If the occupier or another person who apparently represents the occupier is present, the authorised officer must produce his or her identity card to that person for inspection.
(9) In this section:
"copy" , in relation to a document, includes take extracts from the document.
Division 3—Appointment, conditions of appointment etc. of Employment Advocate
83BI Appointment of Employment Advocate
(1) The Employment Advocate is to be appointed by the Governor‑General for a term of up to 5 years.
(2) The Employment Advocate holds office on a full‑time basis.
83BJ Remuneration and allowances
(1) The Employment Advocate is to be paid the remuneration that is determined by the Remuneration Tribunal. However, if no determination of that remuneration by the Tribunal is in operation, the Employment Advocate is to be paid the remuneration that is prescribed by the regulations.
(2) The Employment Advocate is to be paid such allowances as are prescribed by the regulations.
(3) This section has effect subject to the Remuneration Tribunal Act 1973 .
The Employment Advocate must not engage in any paid employment outside the duties of the office without the Minister’s written approval.
(1) Subject to section 87E of the Public Service Act 1922 , the Employment Advocate has such recreation leave entitlements as are determined by the Remuneration Tribunal.
(2) The Minister may grant the Employment Advocate other leave of absence on such terms and conditions as the Minister determines. The terms and conditions may include terms and conditions relating to remuneration.
The Employment Advocate may resign by giving the Governor‑General a signed resignation notice.
The Employment Advocate must give written notice to the Minister of all interests, pecuniary or otherwise, that the Employment Advocate has or acquires and that could conflict with the proper performance of the Employment Advocate’s functions.
83BO Termination of appointment
(1) The Governor‑General may terminate the appointment of the Employment Advocate for physical or mental incapacity, misbehaviour, incompetence or inefficiency.
(2) The Governor‑General must terminate the appointment of the Employment Advocate if the Employment Advocate does any of the following:
(a) is absent from duty (except on leave of absence) for 14 consecutive days, or for 28 days in any period of 12 months;
(b) becomes bankrupt;
(c) applies to take the benefit of any law for the relief of bankrupt or insolvent debtors;
(d) compounds with his or her creditors;
(e) assigns his or her remuneration for the benefit of his or her creditors;
(f) contravenes section 83BN, without a reasonable excuse;
(g) engages in paid employment outside the duties of the office, without the Minister’s written approval.
(3) If the Employment Advocate is:
(a) an eligible employee for the purposes of the Superannuation Act 1976 ; or
(b) a member of the superannuation scheme established by deed under the Superannuation Act 1990 ;
the Governor‑General may, with the consent of the Employment Advocate, retire the Employment Advocate from office on the ground of physical or mental incapacity.
(4) For the purposes of the Superannuation Act 1976 , the Employment Advocate is taken to have been retired from office on the ground of invalidity if:
(a) the Employment Advocate is removed or retired from office on the ground of physical or mental incapacity; and
(b) the Commonwealth Superannuation Board of Trustees No. 2 gives a certificate under section 54C of the Superannuation Act 1976 .
(5) For the purposes of the Superannuation Act 1990 , the Employment Advocate is taken to have been retired from office on the ground of invalidity if:
(a) the Employment Advocate is removed or retired from office on the ground of physical or mental incapacity; and
(b) the Commonwealth Superannuation Board of Trustees No. 1 gives a certificate under section 13 of the Superannuation Act 1990 .
(1) The Minister may appoint a person to act as Employment Advocate:
(a) if there is a vacancy in the office of Employment Advocate, whether or not an appointment has previously been made to the office; or
(b) during any period, or during all periods, when the Employment Advocate is absent from duty or from Australia or is, for any reason, unable to perform the duties of the office.
(2) Anything done by or in relation to a person purporting to act under this section is not invalid merely because:
(a) the occasion for the appointment had not arisen; or
(b) there was a defect or irregularity in connection with the appointment; or
(c) the appointment had ceased to have effect; or
(d) the occasion to act had not arisen or had ceased.
83BQ Other terms and conditions of appointment
The Employment Advocate holds office on such terms and conditions (if any) in respect of matters not provided for by this Act as are determined by the Governor‑General in writing.
(1) A complementary State law may confer functions and powers on the Employment Advocate or an authorised officer.
(2) In this section:
"AWA provisions" means this Part, Part VID and the other provisions of this Act so far as they relate to this Part or Part VID.
"complementary State law" means a law of a State that applies the AWA provisions as a law of the State, with:
(a) the modifications required by the regulations; and
(b) any other modifications permitted by the regulations.
"modifications" includes additions, omissions and substitutions.
83BS Identity of AWA parties not to be disclosed
(1) A person (the entrusted person) must not disclose protected information that the entrusted person knows, or has reasonable grounds to believe, will identify another person (the AWA party ) as being, or having been, a party to an AWA.
Penalty: Imprisonment for 6 months.
(2) Each of the following is an exception to the prohibition in subsection (1):
(a) the disclosure is made by the entrusted person in the course of performing functions or duties as an AWA official;
(b) the disclosure is authorised by the regulations;
(c) the disclosure is required or permitted by another Act;
(d) the disclosure is authorised in writing by the AWA party.
(3) For the purposes of determining the burden of proof in proceedings for an offence against subsection (1), the exceptions in subsection (2) are taken to be part of the description of the offence.
(4) In this section:
"AWA official" means:
(a) the Employment Advocate; or
(b) a delegate of the Employment Advocate; or
(c) an authorised officer.
"protected information" means information that was acquired by the entrusted person:
(a) in the course of performing functions or duties as an AWA official; or
(b) from an AWA official who disclosed the information as authorised by the regulations.
83BT Publication of AWAs etc. by Employment Advocate
Subject to section 83BS, the Employment Advocate may publish or make available copies of, or extracts from, AWAs or ancillary documents.
3 After section 304
Insert:
304A False representation of appointment as an authorised officer
A person must not falsely represent himself or herself to be an authorised officer.
Penalty: Imprisonment for 6 months.
Insert:
305A Obstructing an authorised officer
A person must not:
(a) intentionally hinder or obstruct a person whom he or she knows is an authorised officer; or
(b) without reasonable excuse, contravene a requirement made by an authorised officer under paragraph 83BH(4)(d) or subsection 83BH(5); or
(c) make a statement (whether orally or in writing) to an authorised officer that the person knows to be false or misleading in a material particular.
Penalty: Imprisonment for 6 months.
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