INDUSTRIAL RELATIONS ACT 1988 No. 86 of 1988 - SECT 334 Certain offences in relation to members of organisations etc.

INDUSTRIAL RELATIONS ACT 1988 No. 86 of 1988 - SECT 334

334. (1) An employer shall not dismiss an employee, injure an employee in his
or her employment, or alter the position of an employee to the employee's
prejudice, because the employee:

   (a)  is or has been, or proposes, or has at any time proposed, to become an
        officer, delegate or member of:

        (i)    an organisation; or

        (ii)   an association that has applied to be registered as an
               organisation;

   (b)  has refused or failed to join in industrial action;

   (c)  has made, or proposes, or has at any time proposed, to make,
        application to the Commission for an order under section 136 for the
        holding of a secret ballot;

   (d)  has participated in, or proposes, or has at any time proposed, to
        participate in a secret ballot ordered by the Commission under
        section 135 or 136;

   (e)  is entitled to the benefit of an award or an order of the Commission;

   (f)  has appeared or proposes to appear as a witness, or has given or
        proposes to give evidence, in a proceeding under this Act;

   (g)  being a member of an organisation that is seeking better industrial
        conditions, is dissatisfied with his or her conditions;

   (h)  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 or delegate of an organisation;
               and

        (ii)   the employee applied for leave before absenting himself or
               herself and leave was unreasonably refused or withheld; or

   (j)  being an officer, delegate or member of an organisation, has done, or
        proposes to do, an act or thing for the purpose of furthering or
        protecting the industrial interests of the organisation where the act
        or thing is:

        (i)    lawful; and

        (ii)   within the limits of an authority expressly conferred on the
               employee by the organisation under its rules.
Penalty:

   (a)  in the case of a natural person - $500; and

   (b)  in the case of a body corporate - $1,000.

(2) An employer shall not refuse to employ a person, or discriminate against a
person in the terms or conditions on which the employer offers to employ the
person, because the person:

   (a)  is or has been, or proposes, or has at any time proposed, to become,
        an officer, delegate or member of:

        (i)    an organisation; or

        (ii)   an association that has applied to be registered as an
               organisation;

   (b)  has refused or failed to join in industrial action;

   (c)  has made, or proposes, or has at any time proposed, to make,
        application to the Commission for an order under section 136 for the
        holding of a secret ballot;

   (d)  has participated in, or proposes, or has at any time proposed, to
        participate in a secret ballot ordered by the Commission under
        section 135 or 136;

   (e)  is entitled to the benefit of an award or an order of the Commission;

   (f)  has appeared or proposes to appear as a witness, or has given or
        proposes to give evidence, in a proceeding under this Act; or

   (g)  being an officer, delegate or member of an organisation, has done, or
        proposes to do, an act or thing for the purpose of furthering or
        protecting the industrial interests of the organisation where the act
        or thing is:

        (i)    lawful; and

        (ii)   within the limits of an authority expressly conferred on the
               employee by the organisation under its rules.
Penalty:

   (a)  in the case of a natural person - $500; and

   (b)  in the case of a body corporate - $1,000.

(3) An employer shall not threaten to dismiss an employee, threaten to injure
an employee in his or her employment, or threaten to alter the position of an
employee to his or her prejudice:

   (a)  because the employee is, or proposes to become, an officer, delegate
        or member of an organisation, or an association that has applied to be
        registered as an organisation, or with intent to dissuade or prevent
        the employee from becoming such an officer, delegate or member;

   (b)  with intent to coerce the employee to join in industrial action;

   (c)  because the employee has made, or proposes, or has at any time
        proposed, to make, application to the Commission for an order under
        section 136 for the holding of a secret ballot;

   (d)  because the employee has participated in, or proposes, or has at any
        time proposed, to participate in, a secret ballot ordered by the
        Commission under section 135 or 136;

   (e)  because the employee has appeared or proposes to appear as a witness,
        or has given or proposes to give evidence in a proceeding under
        this Act, or with the intent to dissuade or prevent the employee from
        so appearing or giving evidence; or

   (f)  with the intent to dissuade or prevent the employee, being an officer,
        delegate or member of an organisation, from doing an act or thing for
        the purpose of furthering or protecting the industrial interests of
        the organisation where the act or thing is:

        (i)    lawful; and

        (ii)   within the limits of an authority expressly conferred on the
               employee by the organisation under its rules.
Penalty:

   (a)  in the case of a natural person - $500; and

   (b)  in the case of a body corporate - $1,000.

(4) An employee shall not cease work in the service of his or her employer
because the employer:

   (a)  is an officer, delegate or member of:

        (i)    an organisation; or

        (ii)   an association that has applied to be registered as an
               organisation;

   (b)  is entitled to the benefit of an award or an order of the Commission;
        or

   (c)  has appeared as a witness, or has given evidence, in a proceeding
        under this Act.
Penalty: $500.

(5) An organisation shall not take, or threaten to take, industrial action
against an employer because the employer is an officer, delegate or member of:

   (a)  an organisation; or

   (b)  an association that has applied to be registered as an organisation.
Penalty: $1,000.

(6) In a prosecution for an offence against subsection (1), (2), (3), (4) or
(5), it is not necessary for the prosecutor to prove the defendant's reason
for the action charged nor the intent with which the defendant took the action
charged, but it is a defence to the prosecution if the defendant proves that
the action was not motivated (whether in whole or part) by the reason, nor
taken with the intent (whether alone or with another intent), specified in the
charge.

(7) Where an employer is convicted of an offence against subsection (1), (2)
or (3) constituted by dismissing an employee, the Court may order the
employer:

   (a)  to reinstate the person to the position that the person occupied
        immediately before the dismissal or a position no less favourable than
        the position; and

   (b)  to pay the person the whole or part of the wages lost by the person
        because of the dismissal.

(8) For the purposes of this section, action done by:

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

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

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

   (d)  a member of an 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; shall be taken to have been
        done by the organisation.

(9) In this section:

"organisation" includes a branch of an organisation.