• Specific Year
    Any

RULES OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION (AMENDMENT) 1994 NO. 80

RULES OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION (AMENDMENT) 1994 NO. 80

EXPLANATORY STATEMENT

STATUTORY RULES 1994 No. 80

Amendment of the Rules of the Australian Industrial Relations Commission

(Issued by the Authority of the Acting President of the Australian Industrial Relations Commission)

Section 48 of the Industrial Relations Act 1988 (the Act) authorises the making of the rules of the Australian Industrial Relations Commission (the Commission).

Under subsection 48(1) of the Act the President of the Commission by signed instrument, after consultation with members of the Commission, may make rules, not inconsistent with the Act, with respect to:

(a)       the practice and procedure to be followed in the Commission; or

(b)       the conduct of business in the Commission,

and in particular:

(c)       the manner in which, and the time within, applications, submissions and objections may be made to the Commission; and

(d)       the manner in which applications, submissions and objections may be dealt with by the Commission.

A number of amendments are required to the Rules. Substantive amendments are necessary to reflect new and amended provisions inserted in the Act by the Industrial Relations Reform Act 1993 (the Reform Act). Other technical and drafting alterations are also necessary.

In addition, subsection 4(1) of the Act has been amended by s. 14 of the Industrial Relations and other Legislation Amendment Act 1993 as follows:

"'Prescribed' includes prescribed by Rules of the Commission made under section 48;"

The Acting President of the Commission, after consultation with members of the Commission, has made amendments to the Rules to the following effect:

Rule 1 provides that the Rules commence on 30 March 1994.

Rule 2 provides for the amendment of the Rules.

Rule 3 is a sunset clause providing for the Rules to cease to have effect on 30 December 1994.

Rule 4 amends rule 2A by inserting a definition of "Australian Industrial Registry Bulletin".

Rule 5 replaces subrule 7(2) to provide a procedure to be followed where the Commission acts of its own initiative under paragraphs 170MM(2)(a), 170NN(2)(a) or 170PO(2)(b)(i) of the Act.

Rule 6 amends subrule 8(2) to reflect the new title of the Panel constituted under section 38 of the Act

Rule 7 inserts new rules 8A and 8B. Rule 8A regulates the procedure where the President declares, under section 170QD of the Act, that a member of the Commission be available to perform functions of the Bargaining Division or determines, under section 170QG, the assignment of other work to the Bargaining Division. Rule 8B regulates the procedure concerning matters to be dealt with by the Bargaining Division where such matters are before a member of the Commission not exercising powers of the Bargaining Division.

Rule 8 repeats rule 21A which has been deleted because the jurisdiction to review a contract under section 127A of the Act has been transferred from the Commission to the Industrial Relations Court of Australia

Rule 9 repeals rules 23, 23A, 23B because Division 3A of Part VI of the Act has been repealed.

Rule 10 repeals rules 24, 24A, 25, 26 and 26A and substitutes new rules 24, 24A, 25 and 26.

Rule 24 is revised to clarify the process required of an applicant in effecting service on other panics to the award of the time and place of hearing of an application to set aside or vary an award under section 113 of the Act.

Rule 24A is deleted because of the repeal of Division 3A of Part VI of the Act.

New rule 24A provides a process for an application under section 113B of the Act to vary an award to give effect to an agreement made under an enterprise flexibility provision. Such an application is to be made in accordance with Form R7A (see Schedule of new and revised Forms at Rule 13).

Subrule 24A(2) requires a statutory declaration to indicate the facts establishing the basis upon which the Commission can be satisfied as to the criteria set out in subsection 113B(2).

Subrule 24A(3) regulates the manner in which parties entitled to be heard are notified of the time and place of hearing.

Rule 25 is deleted because of the repeal of Division 3A of Part VI of the Act.

New rule 25 provides a process for notifying boycott disputes under section 163A of the Act.

Subrule 25(1) provides for notification of a boycott dispute to be given orally or in writing in accordance with Form R5 (see Schedule). Subrule 25(2) requires details of the notification to be recorded where the notification is given orally.

Subrule 25(3) provides that such notice must be endorsed with the time and date of receipt and that the Registrar must immediately notify the parties to the dispute, of the receipt of the notification, and of the time and date of the receipt of the notification.

Subrule 25(4) requires the notification to state the parties to the dispute, the matters in dispute and any other relevant information.

Subrule 25(5) requires oral notification to be confirmed in writing in accordance with Form R5 as soon as practicable.

Subrule 25(6) requires the Registrar to keep a certificate issued under subsection 163D(2), and that a copy of such certificate be given to the parties.

Rule 26 has been deleted because of the repeal of Division 3A of Part VI of the Act.

New rule 26 provides a process whereby a party to an industrial dispute can give written notice to the Commission or a Registrar about an intention to bring an action in tort in relation to the dispute.

Subrule 26(1) requires written notice in accordance with Form R5A (see Schedule). Subrule 26(2) provides that such notice must be endorsed with the time and date of receipt and requires a Registrar to immediately send a copy of the notice to each organization of employees referred to in the notice.

Subrule 26(3) requires the Registrar to keep a certificate issued under subsection 166A(6), and that a copy of such certificate be given to the parties to the dispute.

Rule 26A is deleted because of the repeal of Division 3A of Part V1 of the Act.

Rule 11 inserts a new Division "Promoting Bargaining and Facilitating Agreements" comprising new rules 30A to 30V inclusive.

Certified agreements

Rule 30A regulates the procedure for making an application for the certification of an agreement under section 170MA of the Act.

Subrule 30A(1) requires an application to be made in accordance with Form R6 (see Schedule) and be accompanied by a copy of the memorandum of agreement signed by the parties to the agreement.

Subrule 30A(2) requires each party to an agreement, to lodge with the application for certification, a statutory declaration made by an authorised person.

Subrule 30A(3) requires the statutory declaration referred to in subrule 30A(2) to provide information in relation to the consultative process, the "no disadvantage" test, the protection of interests of certain employees and other technical requirements.

Subrule 30A(4) regulates the manner in which parties to the agreement and other interested parties are notified of the time and place for hearing the application.

Rule 30B regulates the procedure for making an application to an extension of a certified agreement under paragraph 170MJ(2)(b) of the Act.

Subrule 30B(1) requires an application for extension of a certified agreement applying to a single business or part thereof to be made in accordance with Form R6A (see Schedule) and be accompanied by a written statement signed by all parties to the agreement signifying their agreement to the extension.

Subrule 30B(2) requires an application for extension of a certified agreement which is not confined to a single business or part thereof to be made in accordance with From R6B (see Schedule) and be accompanied by a written statement signed by all parties to the agreement signifying their agreement to the extension.

Subrule 30B(3) requires in the case of an agreement applying only to a single business, or part thereof that the accompanying statutory declaration identify those organisations of employees entitled to be heard and the relevant award(s) in respect of work performed in the single business or part thereof.

Subrule 30B(4) regulates the manner in which parties to the agreement organisations entitled to be heard and other interested parties are notified of the time and place of hearing.

Rule 30C regulates the procedure for making application for approval of a variation to a certified agreement under section 170ML of the Act.

Subrule 30C(1) requires an application for approval of a variation to a certified agreement to be made in accordance with Form R6C (see Schedule) and be accompanied by a copy of the variation or varied agreement.

Subrule 30(2) requires in the case of an agreement applying only to a single business or part thereof that the accompanying statutory declaration identify those organisations of employees entitled to be heard and the relevant award(s) in respect of work performed in the single business or part thereof.

Subrule 30C(3) regulates the manner in which parties to the agreement, organisations of employees entitled to be heard and other interested parties are notified of the time and place of hearing.

Rule 30D regulates the procedure for review of the operation of a certified agreement under paragraph 170MM(2)(b) of the Act.

Subrule 30D(1) requires an application for review of a certified agreement to be in accordance with Form R6D (see Schedule).

Subrule 30D(2) provides a process for the applicant to be in receipt of the necessary documentation in order to serve the other parties,

Subrule 30D(3) requires the applicant to effect service of notice of hearing on all other parties to the agreement.

Rule 30E regulates the procedure for a declaration under subsection 170MM(b) of the Act that a party is no longer bound by the certified agreement.

Subrule 30E(1) requires an application for a declaration to be in accordance with Form R6E (we Schedule)

Subrule 30E(2) provides a process for the applicant to be in receipt of the necessary documentation in order to serve the other parties.

Subrule 30E(3) requires the applicant to effect service of notice of hearing on all other parties to the agreement.

Subrule 30F regulates the procedure under subsection 170MN of the Act for the termination, by consent of the parties, of a certified agreement.

Subrule 30F(1) requires that a party to an agreement, who does not want to remain bound by the agreement, to notify the Commission in accordance with Form R6F (see Schedule) and be accompanied by a written statement by all the parties to the agreement signifying their consent.

Subrule 30F(2) requires a notification to be made in accordance with Form R60 (see Schedule).

Subrule 30F(3) regulates the manner for giving notice of the time and place of hearing to the parties to the agreement,

Enterprise Flexibility Agreements

Rule 30G regulates the procedure for an application under sections 170NA or 170NM of the Act for approval or variation of an enterprise flexibility agreement, as the case may be.

Subrule 30G(1) requires the application for either approval or variation of an enterprise flexibility agreement to be in accordance with Form R8 (see Schedule) and be accompanied by a copy of the instrument of agreement signed by the employer.

Subrule 30G(2) requires the employer to lodge with the application a statutory declaration made

by an authorised person.

Subrule 30G(3) requires the statutory declaration referred to in subrule 30G(2) to provide information in relation to the consultative process, the "no disadvantage" test, the protection of interests of certain employees and other technical requirements.

Subrule 30G(4) sets out the time and manner for giving notice that the application has been made, as required under subsection 170NB(2). The form of notice is set out in Form RSA (see Schedule). The notice is to be published in the "Australian Industrial Registry Bulletin" (see rule 2A for definition) as soon as practicable.

Subrule 30G(5) regulates the manner in which the applicant and other parties entitled to be heard are notified of the time and place for hearing the application.

Rule 30H regulates the procedure for an application under section 170NK for an extension of an enterprise flexibility agreement.

Subrule 30H(1) requires the application to be in accordance with Form R8B (see Schedule).

Subrule 30H(2) requires the employer to lodge with the application a statutory declaration by an authorised person. The terms of the statutory declaration are covered in subrule 30H(3).

Subrule 30H(4) regulates the manner in which the applicant and organisations of employees entitled to be hoard are notified of the time and place of hearing.

Rule 30J regulates the procedure for an application under paragraph 170NN(2)(b) for a review of the operation of an enterprise flexibility agreement.

Subrule 30J(1) requires an application for review of an enterprise flexibility agreement to be in accordance with Form R8C (see Schedule).

Subrule 30J(2) provides a process for the applicant to be in receipt of the necessary documentation in order to serve the other parties.

Subrule 30J(3) requires the applicant to effect service of notice of hearing on all other parties to the agreement.

Rule 30K provides a procedure for a declaration under subsection 170NN(6) of the Act that a party is no longer bound by the enterprise flexibility agreement.

Subrule 30K(1) requires an application for a declaration to be in accordance with Form R8D (see Schedule)

Subrule 30K(2) provides a process for the applicant to be in receipt of the necessary documentation in order to serve the other panics.

Subrule 30K(3) requires the applicant to effect service of notice of hearing on all other panics to the agreement.

Rule 30L provides a procedure under section 170NO of the Act for the termination, by consent of the panics, of an enterprise flexibility agreement.

Subrule 30L(1) requires that a party to an agreement, who does not want to remain bound by the agreement, to notify the Commission in accordance with Form R8E (see Schedule),

Subrule 30L(2) regulates the manner for giving notice of the time and place of hearing to the parties to the agreement.

Immunity from Civil Liability - Bargaining Period

Rule 30M requires notification of initiation of a bargaining period under subsection 170PD(2) of the Act to be accordance Form R8F (see Schedule).

Rule 30N(1) requires notification of the giving of authorisation to engage in industrial action under section 170PK of the Act to be accordance with Form R8G.

Subrule 30N(2) requires the notice under section 170PK to be lodged promptly in the Registry.

Suspension or Termination of Bargaining Period

Rule 30P regulates the procedure for an application to the Commission under subsection 170PO(2) of the Act.

Subrule 30P(1) requires that the application be in accordance with Form R8H (see Schedule).

Subrule 30P(2) requires that the applicant serve a copy of the application on the other negotiating parties.

Subrule 30P(3) provides for giving notice of the time and place of hearing to the negotiating parties.

Minimum Entitlements of Employees

Rule 30Q regulates the procedure for an application under section 170AD of the Act for a minimum wage order.

Subrule 30Q(1) requires the application to be in accordance with Form R10A (see Schedule).

Subrule 30Q(2) requires that the applicant must, if practicable, state whether the Commission is to be asked to exercise its powers under section 170AH in which case the applicant must identify additional criteria in the application.

Subrule 30Q(3) requires the applicant to serve a copy of the application and a notice in accordance with Form 10B (see Schedule) on those parties identified in subsection 170AE(4),

Subrule 30Q(4) requires, for the purposes of subsection 170AE(5), that the Registrar publish a notice in accordance with Form R10B (see Schedule) in the Gazette and provide a copy to the applicant and any additional notice in such form and manner as the Commission thinks fit, Such notice will include the date and time of hearing of the application.

Subrule 30Q(5) provides for an order made under section 170AC to be published in the Gazette and in such other form and manner (if any) as the Commission thinks fit.

Subrule 30Q(6) requires that the Commission must record the industrial dispute to be prevented and the likely parties to the dispute before making an order exercising its powers under section 170AH.

Rule 30R regulates the procedure for an application under section 170BD of the Act for an order requiring equal remuneration for work of equal value.

Subrule 30R(1) requires the application to be in accordance with Form R10C (see Schedule).

Subrule 30R(2) requires that the applicant must, if practicable, state whether the Commission is to be asked to exercise the power in section 170BI in which case the applicant must 'identify additional criteria in the application.

Subrule 30R(3) requires the applicant to serve a copy of the application and a notice in accordance: with Form 10D (see Schedule) to each trade union entitled to represent the industrial interests of any of the employees concerned and each organisation or association representing employers of any of those employees, the Sex Discrimination Commissioner and any other person upon whom the Commission directs service.

Subrule 30R(4) requires that the Registrar publish a notice in accordance with Form R10D (see Schedule) in the Gazette and provide a copy to the applicant and any additional notice in such form and manner as the Commission thinks fit. Such notice will include the date and time of hearing of the application.

Subrule 30R(5) provides for an order made under section 170BC to be published in the Gazette and in such other form and manner (if any) as the Commission thinks fit.

Subrule 30R(6) requires that the Commission must record the industrial dispute to be prevented and the likely parties to the dispute before making an order exercising the power under section 170BI.

Rule 30S provides a procedure covering unlawful termination applications referred from the Industrial Relations Court of Australia to the Commission under section 170ED.

Subrule 30S(1) regulates the manner for notifying the parties of the time and place fixed for hearing the matter.

Subrule 30S(2) regulates the process where the Commission has issued a certificate under subsection 170ED(2) to the effect that the Commission has been unable to settle the matter. The subrule requires the Commission to give the certificate to the Registrar who in turn gives the certificate to the Registrar of the Court.

Subrule 30S(3) regulates the process where the matter is settled by conciliation. The subrule requires, so far as practicable, that the parties reduce the terms of settlement to writing and that the Registrar of the Court be notified that the matter has been settled.

Rule 30T regulates the procedure for an application under section 170FB of the Act for an employment termination order by the Commission creating rules of general application.

Subrule 30T(1) requires the application to be in accordance with Form R10E (see Schedule).

Subrule 30T(2) requires the applicant to serve a copy of the application and a notice in accordance with Form R10F (see Schedule) to each trade union entitled to represent the industrial interests of any of the employees concerned and each organisation or association representing employers of any of those employees and any other person upon whom the Commission directs service.

Subrule 30T(3) requires that the Registrar publish a notice in accordance with Form R10F (we Schedule) in the Gazette and provide a copy to the applicant and any additional notice in such form and manner as the Commission thinks fit. Such notice will include the date and time of hearing of the application.

Subrule 30T(4) provides for an order made under section 170AC to be published in the Gazette and in such other form and manner (if any) as the Commission thinks fit.

Rule 30U regulates the procedure for an application under section 170GB of the Act for an order by the Commission where in employer fails to consult about termination.

Subrule 30U(1) requires the application to be in accordance with Form R10G (see Schedule).

Subrule 30U(2) requires the applicant to serve a copy of the application on the. employer and on each trade union which could also have made such an application.

Subrule 30U(3) regulates the manner for giving notice of the time and place of hearing to the parties.

Rule 30V requires the Industrial Registrar to keep at the Principal Registry a register of Orders made under Part VIA of the Act. The Register may be inspected by any person at any time when the Principal Registry is open to the public.

Rule 12 repeals rule 32 and inserts new rules 32 and 32A.

New Rule 32 revises and clarifies the process required of an applicant in effecting service on other parties to the award of the time and place of hearing of an application for cancellation or suspension of an award.

New rule 32A provides a prescribed time for the lodgment of a notice of objection in relation to a variation of a common rule under section 142 of the Act. Section 142 was amended by s .19 of the Industrial Relations and other Legislation Amendment Act 1993 to provide a prescribed time to mean a period prescribed by the Rules of the Commission.

Rule 13 creates a Schedule to amend and insert a number of new Forms as a consequence of amendments made to the Act.

Rule 13.1 substitutes Forms R5 to R8B (inclusive) with Forms R5 to R8H (inclusive).

Form R5, which concerned an application under section 127A of the Act to review a contract, is no longer necessary as the jurisdiction under that section has been transferred to the Court. New Form R5 is the form under rule 25 for the notification of a boycott dispute.

Form R5A is a new form for the giving of written notice of intention to take action in tort under rule 26.

Form R6 is a revised form for making application under rule 30A for certification of an agreement under subsection 170MA(4) of the Act.

Form R6A is a revised form for making application under subrule 30B(1) for extension of a certified agreement under subparagraph 170MJ(2)(b)(i) of the Act.

Form R6B is a new form for making application under subrule 30B(2) for extension of a certified agreement under subparagraph 170MJ(2)(b)(ii) of the Act.

Form R6C is a new form for making application under rule 30C for approval of a variation of a certified agreement under section 170ML of the Act.

Form R6D is a new form for making application under rule 30D for review of the operation of a certified agreement paragraph 170MM(2)(b) of the Act.

Form R6E is a new form for making application under rule 30E that a party is no longer bound by a certified agreement under subsection 170MM(6) of the Act.

Form R6F is a new form for making notification under subrule 30F(1) that a party does not want to remain bound by the agreement under subsection 170MN(1) of the Act.

Form R6G is a new form for making notification under subrule 30F(2) that all parties to an agreement want the agreement terminated under subsection 170MN(2) of the Act.

Form R7 is a revised form for making application under rule 24 to set aside or vary an award under section 113 of the Act.

Form R7A replaces the existing form which has been revised as Form R6D. New form R7A is the form for making application for variation of an award to give effect to an agreement negotiated under an enterprise flexibility provision under rule 24A in accordance with section 113B of the Act

Form R8, R8A and R8B are deleted by the repeal of Division 3A of Part VI of the Act.

Form R8 is a new form for making application under rule 30G for approval of implementation or variation of an enterprise flexibility agreement under sections 170NA or 170NM of the Act as the case may be.

Form R8A is a form of notice to be published under subrule 30G(4) for the purposes of subsection 170NB(2) of the Act.

Form R8B is a new form for making application under rule 30R for the extension of an enterprise flexibility agreement under section 170NK of the Act.

Form R8C is a new form for making application under rule 301 for review of the operation of an

enterprise flexibility agreement under paragraph 170NN(2)(b) of the Act.

Form R8D is a new form for making application under rule 30K that a person is no longer bound by an enterprise flexibility agreement under subsection 170NN(6) of the Act.

Form R8E is a new form for making notification under rule 30L that persons no longer want to be bound by an enterprise flexibility agreement under section 170NO of the Act.

Form R8F is a new form for giving notice under rule 30M of the initiation of a bargaining period under subsection 170PD(2) of the Act.

Form R8G is a new form for giving notice under rule 30N of authorisation to engage in industrial action under section 170PK of the Act.

Form R8H is a new form for making application under rule 30P for the Commission to suspend of terminate a bargaining period under subsection 170PO(2) of the Act.

Rule 13.2 inserts Forms R10A to R10G (inclusive).

Form R10A is a new form for making application under rule 30Q for a minimum wage order under section 170AD of the Act.

Form R10B is the form of notice under subrules 30Q(2) and (3) for the purposes of subsection 170AE(5) of the Act.

Form R10C is a new form for making application under rule 30R for an order requiring equal remuneration for work of equal value under section 170BD of the Act.

Form R10D is the form of notice under subrules 30R(2) and (3) for the purposes of subsection 170BI(3) of the Act.

Form R10E is a new form for making application under rule 30T for an employment termination order of general application under section 170FB of the Act.

Form R10F is the form of notice under subrules 30T(2) and (3) for the purposes of section 170FD of the Act.

Form R10G is a new form for making application under rule 30U for an order where an employer fails to consult about termination under section 170GB of the Act.

Rule 13.3 replaces approved Forms R21 and R22 under regulation 48.

These forms have been revised to reflect amendments to paragraph 48(2)(b) of the Industrial Relations Regulations as made by Statutory Rules No. 351 of 1992.

Download

No downloadable files available