CONCILIATION AND ARBITRATION AMENDMENT ACT 1979 NO. 110, 1979 CONCILIATION AND ARBITRATION AMENDMENT ACT 1979 NO. 110, 1979 - TABLE OF PROVISIONS 1. Short title. 2. Commencement 3. 4. 5. Certain matters to be dealt with by Full Bench of Commission 6. 7. Reference of disputes to Full Bench 8. 9. Exercise of powers 10. Exercise of powers 11. Exercise of powers 12. Exercise of powers 13. Conciliation Committees 14. Reference of industrial questions to Full Bench of Commission 15. Application for cancellation of registration 16. 17. Consequential amendments SCHEDULE CONCILIATION AND ARBITRATION AMENDMENT ACT 1979 No. 110 of 1979 - SECT 1 Short title. CONCILIATION AND ARBITRATION AMENDMENT ACT 1979 No. 110 of 1979 An Act to amend the Conciliation and Arbitration Act 1904. BE IT ENACTED by the Queen, and the Senate and House of Representatives of the Commonwealth of Australia, as follows: Short title, &c. 1. (1) This Act may be cited as the Conciliation and Arbitration Amendment Act 1979.*1* (2) The Conciliation and Arbitration Act 1904*2* is in this Act referred to as the Principal Act. CONCILIATION AND ARBITRATION AMENDMENT ACT 1979 No. 110 of 1979 - SECT 2 Commencement 2. This Act shall come into operation on the day on which it receives the Royal Assent.*1* CONCILIATION AND ARBITRATION AMENDMENT ACT 1979 No. 110 of 1979 - SECT 3 3. After section 22 of the Principal Act the following section is inserted: Commissioner to consult with Presidential Member before exercising certain powers ''22A. Where- (a) a Commissioner proposes to make an award, or certify a memorandum of agreement, making provision for, or altering, the rates of wages or the conditions applicable in relation to employees in a particular industry or group of industries; and (b) that industry or group of industries, as the case may be, has been assigned under sub-section (1) of section 23 to a panel of members of the Commission, the Commissioner shall, before making the award or certifying the memorandum of agreement, whether or not he is a member of that panel, consult with the Presidential Member who is a member of that panel.''. CONCILIATION AND ARBITRATION AMENDMENT ACT 1979 No. 110 of 1979 - SECT 4 4. After section 25 of the Principal Act, the following section is inserted: Limitation on powers of Commission ''25A. The Commission is not empowered to make an award, certify a memorandum of agreement, make a recommendation or take any other action, whether by way of conciliation or arbitration, in respect of a claim for the making of a payment to employees in respect of a period during which those employees were engaged in industrial action.''. CONCILIATION AND ARBITRATION AMENDMENT ACT 1979 No. 110 of 1979 - SECT 5 Certain matters to be dealt with by Full Bench of Commission 5. Section 31 of the Principal Act is amended by omitting sub-section (3) and substituting the following sub-section: ''(3) Where, in relation to a matter before the Commission constituted otherwise than as a Full Bench, the question arises whether the matter is one in relation to which sub-section (1) applies- (a) where the Commission is constituted by the President- (i) if the opinion of the President is that the matter is not such a matter-the Commission constituted by the President is, subject to the provisions of this Act other than this section, empowered to make an award with respect to the matter; or (ii) if the opinion of the President is that the matter is such a matter-a Full Bench of the kind referred to in sub-section (1) is empowered to make an award with respect to the matter; or (b) where the Commission is constituted by a member of the Commission other than the President, the member shall refer the question to the President and- (i) if the opinion of the President is that the matter is not such a matter-the Commission constituted by that member is, subject to the provisions of this Act other than this section, empowered to make an award with respect to the matter; or (ii) if the opinion of the President is that the matter is such a matter-a Full Bench of the kind referred to in sub-section (1) is empowered to make an award with respect to the matter.''. CONCILIATION AND ARBITRATION AMENDMENT ACT 1979 No. 110 of 1979 - SECT 6 6. After section 33 of the Principal Act the following section is inserted: Stand-down applications ''33A. (1) Where an employer who is, or an organization that is, bound by an award makes an application (in this section referred to as the 'stand-down application') to the Commission for the award to be varied by the insertion or variation of a term, however expressed, that authorizes an employer to stand down an employee in particular circumstances, the Commission shall hear and determine the stand-down application as expeditiously as is appropriate having regard to all the circumstances. ''(2) The person who makes a stand-down application may, at the time when the stand-down application is made or at any later time before the stand-down application is determined, apply to the President for the stand-down application to be heard and determined by a Full Bench. ''(3) Where an application is made to the President under sub-section (2), the President shall constitute a Full Bench to hear and determine the stand-down application. ''(4) Where- (a) a stand-down application has been partly heard by the Commission constituted otherwise than as a Full Bench; and (b) the President constitutes a Full Bench for the purpose of hearing the stand-down application, the Full Bench may, in the hearing, have regard to any evidence given and any arguments adduced in the proceedings before the Commission constituted otherwise than as a Full Bench.''. CONCILIATION AND ARBITRATION AMENDMENT ACT 1979 No. 110 of 1979 - SECT 7 Reference of disputes to Full Bench 7. Section 34 of the Principal Act is amended by omitting sub-sections (3) to (7), inclusive, and substituting the following sub-sections: ''(3) Where proceedings in relation to an alleged industrial dispute or in relation to an industrial dispute are before a member of the Commission, a party to the proceedings or the Minister may apply to that member- (a) in the case of proceedings referred to in sub-section (1) of section 24-to have the proceedings dealt with as provided by this section on the ground that the subject matter of the proceedings is of such importance that, in the public interest, the proceedings should be so dealt with; or (b) in the case of proceedings by way of conciliation or arbitration-to have the industrial dispute or a part of the industrial dispute dealt with as provided by this section on the ground that the industrial dispute or that part of the industrial dispute, as the case may be, is of such importance that, in the public interest, it should be so dealt with. ''(4) An application under paragraph (a) of sub-section (3) may be accompanied by an application requesting that, if the first-mentioned application is granted and the Commission finds that there is an industrial dispute, the industrial dispute or a part of the industrial dispute be dealt with as provided by this section on the ground that the industrial dispute or that part of the industrial dispute, as the case may be, is of such importance that, in the public interest, it should be so dealt with. ''(5) If the member of the Commission to whom an application is made under sub-section (3) or (4) is not the President, he shall refer the application to the President, and the President shall confer with him on the question whether the application should be granted. ''(6) If the President, having regard to the reasons for the application is of the opinion that- (a) in the case of an application under paragraph (a) of sub-section (3)-the subject matter of the proceedings is of such importance that, in the public interest, the proceedings should be dealt with as provided by this section; or (b) in the case of an application under paragraph (b) of sub-section (3) or under sub-section (4)-the industrial dispute or the part of the industrial dispute, as the case may be, is of such importance that, in the public interest, it should be dealt with as provided by this section, he shall grant the application and direct accordingly. ''(7) Where the President gives a direction in pursuance of an application under paragraph (a) of sub-section (3)- (a) the Commission shall determine whether there is an industrial dispute and, if it determines that there is an industrial dispute, record findings in accordance with section 24; and (b) if the application was accompanied by an application under sub-section (4) and the last-mentioned application was granted, the Commission shall, subject to sub-section (7B), hear and determine the industrial dispute or the part of the industrial dispute, as the case may be. ''(7A) Where the President gives a direction in pursuance of an application under paragraph (b) of sub-section (3), the Commission shall, subject to sub-section (7B), hear and determine the industrial dispute or the part of the industrial dispute and, in the hearing, may have regard to any evidence given and any arguments adduced in arbitration proceedings in relation to the industrial dispute or the part of the industrial dispute before the Commission commenced the hearing. ''(7B) Where the President has given a direction in pursuance of an application made under paragraph (b) of sub-section (3) or under sub-section (4) in respect of an industrial dispute, the Commission may refer a part of the dispute to a Presidential Member or a Commissioner and, in that case, the Commission constituted by that member shall hear and determine that part of the dispute and the Commission shall hear and determine the dispute other than that part of the dispute.''. CONCILIATION AND ARBITRATION AMENDMENT ACT 1979 No. 110 of 1979 - SECT 8 8. After section 34 of the Principal Act the following section is inserted: References of disputes to the President ''34A. (1) A reference in this section to a part of an industrial dispute shall be read as including a reference to- (a) an industrial dispute so far as it relates to a matter in dispute; or (b) a question arising in relation to an industrial dispute. ''(2) Where proceedings in relation to an alleged industrial dispute, or in relation to an industrial dispute, are before a member of the Commission other than the President, whether the proceedings are proceedings referred to in sub-section (1) of section 24 or are proceedings by way of conciliation or arbitration, the President may, if he is of the opinion that there are special reasons that justify his so doing, direct that the proceedings be dealt with in accordance with this section. ''(3) Where a direction under sub-section (2) is given in relation to any proceedings- (a) if the member of the Commission referred to in sub-section (2) has not determined whether there is an industrial dispute-the President shall determine that question and record findings in accordance with section 24; and (b) if that member of the Commission has made a finding that there is an industrial dispute or the President makes such a finding, the President shall- (i) if he is of the opinion that it would assist the settlement of the industrial dispute or of a part of the industrial dispute-endeavour to settle the industrial dispute or that part of the industrial dispute by conciliation; and (ii) if he is not of that opinion or has not been able to settle by conciliation the industrial dispute or a part of the industrial dispute- (A) hear and determine the industrial dispute or that part of the industrial dispute; or (B) refer the industrial dispute or that part of the industrial dispute to a Full Bench of the Commission. ''(4) Where the President so refers an industrial dispute or a part of an industrial dispute to a Full Bench, the Full Bench shall hear and determine the industrial dispute or that part of the industrial dispute. ''(5) In the hearing of an industrial dispute or a part of an industrial dispute by the President under sub-section (3) or by the Full Bench under sub-section (4), the President or the Full Bench, as the case may be, may have regard to any evidence given and any arguments adduced in arbitration proceedings before the member of the Commission referred to in sub-section (2). ''(6) Where the President has under sub-section (3) referred an industrial dispute to a Full Bench, the Full Bench may refer a part of the dispute to a Presidential Member or a Commissioner and, in that case, the Commission constituted by that member shall hear and determine that part of the dispute and the Full Bench shall hear and determine the dispute other than that part of the dispute. ''(7) The Full Bench may, for the purposes of this section, direct a Presidential Member or a Commissioner to furnish a report with respect to a specified matter and that Presidential Member or Commissioner shall, after making such investigation (if any) as is necessary, furnish a report accordingly.''. CONCILIATION AND ARBITRATION AMENDMENT ACT 1979 No. 110 of 1979 - SECT 9 Exercise of powers 9. Section 73 of the Principal Act is amended by adding at the end thereof the following sub-section: ''(4) Where a Commissioner proposes, in the exercise of powers under this Division, to make an award, or certify a memorandum of agreement, making provision for, or altering, the rates of wages or the conditions applicable in relation to seamen, the Commissioner shall, before making the award or certifying the memorandum of agreement, consult with the Presidential Member who is assigned by the President for the purposes of this Division.''. CONCILIATION AND ARBITRATION AMENDMENT ACT 1979 No. 110 of 1979 - SECT 10 Exercise of powers 10. Section 78 of the Principal Act is amended by adding at the end thereof the following sub-section: ''(4) Where a Commissioner proposes, in the exercise of powers under this Division, to make an award, or certify a memorandum of agreement, making provision for, or altering, the rates of wages or the conditions applicable in relation to employees, the Commissioner shall, before making the award or certifying the memorandum of agreement, consult with the Presidential Member who is assigned by the President for the purposes of this Division.''. CONCILIATION AND ARBITRATION AMENDMENT ACT 1979 No. 110 of 1979 - SECT 11 Exercise of powers 11. Section 84 of the Principal Act is amended by adding at the end thereof the following sub-section: ''(3) Where a Commissioner proposes, in the exercise of powers under this Division, to make an award, or certify a memorandum of agreement, making provision for, or altering, the rates of wages or the conditions applicable to waterside workers, the Commissioner shall, before making the award or certifying the memorandum of agreement, consult with the Presidential Member who is assigned by the President for the purposes of this Division.''. CONCILIATION AND ARBITRATION AMENDMENT ACT 1979 No. 110 of 1979 - SECT 12 Exercise of powers 12. Section 88CA of the Principal Act is amended by adding at the end thereof the following sub-section: ''(4) Where a Commissioner proposes, in the exercise of powers under this Division, to make an award, or certify a memorandum of agreement, making provision for, or altering, the rates of wages or the conditions applicable in relation to employees, the Commissioner shall, before making the award or certifying the memorandum of agreement, consult with the Presidential Member who is assigned by the President for the purposes of this Division.''. CONCILIATION AND ARBITRATION AMENDMENT ACT 1979 No. 110 of 1979 - SECT 13 Conciliation Committees 13. Section 88ZA of the Principal Act is amended by inserting after sub-section (5) the following sub-section: ''(5A) Where the Chairman proposes to certify a memorandum under sub-section (4), the Chairman shall, before certifying the memorandum, consult with the person constituting the Tribunal.''. CONCILIATION AND ARBITRATION AMENDMENT ACT 1979 No. 110 of 1979 - SECT 14 Reference of industrial questions to Full Bench of Commission 14. Section 88ZF of the Principal Act is amended by omitting sub-sections (2) to (6), inclusive, and substituting the following sub-sections: ''(2) Where proceedings in relation to an industrial question or alleged industrial question are before the Tribunal, a party to the proceedings or the Minister may apply to the Tribunal- (a) in the case of proceedings referred to in sub-section (1) of section 24-to have the proceedings dealt with as provided by this section on the ground that the subject matter of the proceedings is of such importance that, in the public interest, the proceedings should be so dealt with; or (b) in the case of proceedings to encourage and assist the prevention or settlement of the industrial question by amicable agreement or proceedings by way of arbitration-to have the industrial question or a part of the industrial question dealt with as provided by this section on the ground that the industrial question or that part of the industrial question, as the case may be, is of such importance that, in the public interest, it should be so dealt with. ''(3) An application under paragraph (a) of sub-section (2) may be accompanied by an application requesting that, if the first-mentioned application is granted and the Commission finds that there is an industrial question, the industrial question or a part of the industrial question be dealt with as provided by this section on the ground that the industrial question or that part of the industrial question, as the case may be, is of such importance that, in the public interest, it should be so dealt with. ''(4) Where an application is made to the Tribunal under sub-section (2) or (3), the Tribunal shall refer the application to the President, and the President shall confer with the person constituting the Tribunal for the purposes of the industrial question on the question whether the application should be granted. ''(5) If the President, having regard to the reasons for the application, is of the opinion that- (a) in the case of an application under paragraph (a) of sub-section (2)-the subject matter of the proceedings is of such importance that, in the public interest, the proceedings should be dealt with as provided by this section; or (b) in the case of an application under paragraph (b) of sub-section (2) or under sub-section (3)-the industrial question or the part of the industrial question, as the case may be, is of such importance that, in the public interest, it should be dealt with as provided by this section, he shall grant the application and direct accordingly. ''(6) Where the President gives a direction in pursuance of an application under paragraph (a) of sub-section (2)- (a) the Commission shall determine whether there is an industrial question and, if it determines that there is an industrial question, make and record findings in accordance with section 24; and (b) if the application was accompanied by an application under sub-section (3) and the last-mentioned application was granted, the Commission shall, subject to sub-section (6B), hear and determine the industrial question or the part of the industrial question, as the case may be. ''(6A) Where the President gives a direction in pursuance of an application under paragraph (b) of sub-section (2), the Commission shall, subject to sub-section (6B), hear and determine the industrial question or the part of the industrial question and, in the hearing, may have regard to any evidence given and any arguments adduced in arbitration proceedings in relation to the industrial question or the part of the industrial question before the Commission commenced the hearing. ''(6B) Where the President has given a direction in pursuance of an application made under paragraph (b) of sub-section (2) or under sub-section (3) in respect of an industrial question, the Commission may refer a part of the industrial question to the Tribunal and, in that case, the Tribunal shall hear and determine that part of the industrial question and the Commission shall hear and determine the industrial question other than that part of the industrial question.''. CONCILIATION AND ARBITRATION AMENDMENT ACT 1979 No. 110 of 1979 - SECT 15 Application for cancellation of registration 15. Section 143 of the Principal Act is amended- (a) by inserting in sub-section (3DD) ''or paragraph (b) of sub-section (2) of section 143A'' after ''sub-section (3DB)''; (b) by inserting in paragraph (a) of sub-section (3DK) ''or a provision of an order by the Governor-General in force under paragraph (b) of sub-section (2) of section 143A'' after ''sub-section (3DB)''; and (c) by inserting in sub-section (3F) '', or the Governor-General has made an order under section 143A,'' after ''section''. CONCILIATION AND ARBITRATION AMENDMENT ACT 1979 No. 110 of 1979 - SECT 16 16. After section 143 of the Principal Act the following section is inserted: Cancellation of registration, &c. ''143A. (1) Where, on application by the Minister, a Full Bench is satisfied that- (a) an organization has been or is, or two or more members of an organization have been or are, engaged in industrial action; and (b) the industrial action has had, is having, or is likely to have, a substantial adverse effect on the safety, health or welfare of the community or of a part of the community, the Full Bench shall make a declaration that it is so satisfied and cause the declaration to be recorded in writing. ''(2) Where a declaration is made under sub-section (1) by a Full Bench in relation to an organization or members of an organization, the Governor-General may- (a) at any time within the period of 6 months after the making of the declaration, by order in writing under his hand, direct the Registrar to cancel the registration of the organization; or (b) at any time, or from time to time, within that period of 6 months, by order in writing, exercise any one or more of the following powers: (i) the power to suspend, to the extent specified in the order, any of the rights, privileges or capacities of the organization or of all or any of its members, as such members, under this Act or any other Act or under awards or determinations under this Act or under any other Act; (ii) the power to give directions as to the exercise of any rights, privileges or capacities that have been so suspended; (iii) the power to make provision for restricting the use of the funds or property of the organization or a branch of the organization and for the control of those funds or that property for the purpose of ensuring observance of the restrictions. ''(3) Where the Governor-General has made an order under paragraph (b) of sub-section (2) in relation to an organization, the Governor-General may at any time within the period of 6 months after the making of that order, by order in writing under his hand, direct the Registrar to cancel the registration of the organization. ''(4) Where the Governor-General, by order under sub-section (2) or (3), directs the Registrar to cancel the registration of an organization, the Governor-General may, by that order or by a later order in writing under his hand, specify a condition or conditions with which the association that is or was, as the case may be, registered as the organization is required to comply before it may be registered again under section 132. ''(5) Notwithstanding anything in section 132, where the registration of an organization has been cancelled in accordance with a direction given by the Governor-General under sub-section (2) or (3), the association that was registered as the organization is not entitled to be registered under section 132 unless- (a) where the Governor-General has, in accordance with sub-section (4), specified a condition or conditions in relation to the association-the Governor-General declares, by order in writing under his hand, that that condition has, or those conditions have, been complied with; or (b) in a case to which paragraph (a) does not apply-the Governor-General declares, by order in writing under his hand, that the association may apply to be registered under section 132. ''(6) Where, on application by the Minister, a Full Bench is satisfied that, after an association in relation to which a declaration has been made by the Governor-General under paragraph (a) of sub-section (5) has become registered again as an organization under section 132, the organization has ceased to comply with the condition or any one or more of the conditions specified by the Governor-General in accordance with sub-section (4), the Full Bench shall make a declaration that it is so satisfied. ''(7) Where a declaration is made under sub-section (6) by a Full Bench in relation to an organization, sub-section (2) has effect in like manner as it has effect in relation to a declaration made under sub-section (1) by a Full Bench in relation to an organization. ''(8) A document signed by the Industrial Registrar or a Deputy Industrial Registrar stating that the Full Bench made a declaration under sub-section (1) or (6) on a date specified in the document and purporting to set out the terms of the declaration is prima facie evidence of the matters stated in the document. ''(9) An order made by the Governor-General in pursuance of a power conferred by paragraph (b) of sub-section (2) may be revoked by the Governor-General at any time by a further order in writing under his hand. ''(10) An order made by the Governor-General in pursuance of a power conferred by paragraph (b) of sub-section (2) shall, unless sooner revoked, cease to be in force at the expiration of 6 months from the date on which it came into force but may, at any time while it remains in force (including a time when it remains in force by virtue of a previous extension or previous extensions under this sub-section), be extended in duration by a further order made by the Governor-General in writing under his hand. ''(11) Where the Governor-General makes an order under this section- (a) a copy of the order shall be published in the Gazette; and (b) the order comes into force upon the date of publication of the copy of the order in the Gazette.''. CONCILIATION AND ARBITRATION AMENDMENT ACT 1979 No. 110 of 1979 - SECT 17 Consequential amendments 17. The Principal Act is amended as set out in the Schedule. ----------- CONCILIATION AND ARBITRATION AMENDMENT ACT 1979 No. 110 of 1979 - SCHEDULE SCHEDULE Section 17 ------------------------------------------------------------------------------ -- Provision amended Amendment ------------------------------------------------------------------------------ -- Sub-section 32 (2) . . . . Omit ''section 34 or 35'', substitute ''section 34, sub-section (4) of section 34A or section 35''. Sub-section 36 (1) . . . . Omit ''either of the last two preceding sections'', substitute ''section 34, sub-section (4) of section 34A or section 35''. Sub-section 39 (2) . . . . Omit ''sections 31, 34, 35 or 36A'', substitute ''sections 31 or 34, sub-section (4) of section 34A or section 35 or 36A''. Paragraph 41A (2) (a) . . Omit ''35 or 36A'', substitute ''sub-section (4) of section 34A or section 35 or 36A''. Paragraph 41A (2) (b) . . Omit ''either of those sections'', substitute ''section 34, sub-section (4) of section 34A or section 35 or 36A''. Sub-section 73 (3) . . . . Omit '', 34,'', insert ''and 34, sub-section (4) of section 34A and sections''. Sub-section 78 (3) . . . . Omit '', 34,'', insert ''and 34, sub-section (4) of section 34A and sections''. Sub-section 84 (2A) . . . Omit '', 34,'', insert ''and 34, sub-section (4) of section 34A and sections''. Sub-section 88CA (3) . . . Omit '', 34,'', insert ''and 34, sub-section (4) of section 34A and sections''. ------------------------------------------------------------------------------ -- ------------------------------------------------------------------------------ -- CONCILIATION AND ARBITRATION AMENDMENT ACT 1979 No. 110 of 1979 - NOTES NOTES 1. Act No. 110, 1979; assented to 25 October 1979. 2. Act No. 13, 1904, as amended. For previous amendments see Act No. 28, 1909; No. 7, 1910; No. 6, 1911; Nos. 5 and 18, 1914; No. 35, 1915; No. 39, 1918; No. 31, 1920; No. 29, 1921; No. 22, 1926; No. 8, 1927; No. 18, 1928; No. 43, 1930; Nos. 45 and 54, 1934; Nos. 14 and 30, 1946; Nos. 10 and 52, 1947; Nos. 65 and 77, 1948; Nos. 28 and 86, 1949; Nos. 20, 51 and 80, 1950; Nos. 1, 18 and 58, 1951; No. 34, 1952; Nos. 17, 18 and 54, 1955; Nos. 44 and 103, 1956; No. 30, 1958; No. 40, 1959; Nos. 15, 17 and 110, 1960; No. 40, 1961; Nos. 99 and 115, 1964; Nos. 22 and 92, 1965; Nos. 64 and 93, 1966; No. 101, 1967; No. 38, 1968; Nos. 12, 15 and 40, 1969; No. 53, 1970; No. 37, 1972; No. 138, 1973; No. 216, 1973 (as amended by No. 20, 1974); No. 89, 1974; No. 64, 1975; Nos. 3, 64, 91, 117 and 160, 1976; Nos. 64, 108, 111 and 124, 1977; and No. 53, 1978.