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Queensland
INDUSTRIAL RELATIONS
AMENDMENT BILL 1992
Queensland
INDUSTRIAL RELATIONS
AMENDMENT BILL 1992
TABLE OF PROVISIONS
Section Page
1 Short title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
2 Commencement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
3 Amended Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
4 Amendment of s.1.3 (Objects) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
5 Omission of ss.1.4 and 1.5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
6 Amendment of s.2.1 (Meaning of terms) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
7 Replacement of s.4.25 (Dealing with demarcation disputes) . . . . . . . . . . . . 10
4.25 Demarcation disputes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
4.25A Organisation coverage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
8 Amendment of s.5.4 (Power of Industrial Magistrate concerning
unpaid superannuation contribution) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
9 Amendment of s.8.6 (Powers incidental to exercise of jurisdiction) . . . . . . 12
10 Amendment of s.8.17 (Representation of parties) . . . . . . . . . . . . . . . . . . . . . 12
11 Amendment of s.8.19 (Intervention) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
12 Insertion of new Division 1A of Part 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Division 1A--Certified agreements
10.3A Objects of Division . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
10.3B Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
10.3C Agreements may be made about industrial matters . . . . . . . . . . . . . 14
10.3D Minister may intervene in certain cases . . . . . . . . . . . . . . . . . . . . . . 15
10.3E Certification of agreements under this Division . . . . . . . . . . . . . . . . 15
10.3F When Commission may refuse to certify agreements . . . . . . . . . . . 17
10.3G Other options open to Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
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Industrial Relations Amendment
10.3H Procedures for preventing and settling disputes . . . . . . . . . . . . . . . . 18
10.3I Operation of certified agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
10.3J Party may retire from a certified agreement . . . . . . . . . . . . . . . . . . . 19
10.3K Extension of certified agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
10.3L Effect of certified agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
10.3M Certified agreements may be varied or terminated by Full
Bench . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
10.3N Certified agreements may be terminated by parties . . . . . . . . . . . . . 21
10.3O Enforcement of certified agreements . . . . . . . . . . . . . . . . . . . . . . . . . 22
13 Amendment of s.10.12 (Powers of Commission re awards) . . . . . . . . . . . . . 22
14 Replacement of s.11.7 (University or college of advanced
education students) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
11.7 Student's work permit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
15 Omission of s.11.11 (Reinstatement and re-employment) . . . . . . . . . . . . . . 23
16 Amendment of s.11.22 (Entitlement to long service leave) . . . . . . . . . . . . . 23
17 Amendment of s.11.32 (Long service leave in meat works and
sugar industry) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
11.32 Long Service leave in meat works and sugar industry . . . . . . . . . . . 23
18 Insertion of new Divisions 4 and 5 of Part 11 . . . . . . . . . . . . . . . . . . . . . . . . 27
Division 4--Reinstatement and re-employment
11.37 Application for reinstatement, re-employment or compensation . . . 27
11.38 Orders on application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
11.39 Effect of dismissal relief order on leave . . . . . . . . . . . . . . . . . . . . . . 29
11.40 Costs for frivolous or vexatious applications . . . . . . . . . . . . . . . . . . . 29
11.41 Further orders against employer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Division 5--Protection of injured employees
11.42 Interpretation of Division . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
11.43 Wages to be paid for the day employee injured . . . . . . . . . . . . . . . . 30
11.44 Application to employer for reinstatement after dismissal . . . . . . . . 31
11.45 Application to Commission for reinstatement order . . . . . . . . . . . . . 31
11.46 Commission order to reinstate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
11.47 Extension of time for application . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
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Industrial Relations Amendment
11.48 Dismissal an offence in certain cases . . . . . . . . . . . . . . . . . . . . . . . . 32
11.49 Preservation of employee's rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
19 Repeal of s.12.4 (Conciliation by Commissioner or Industrial
Magistrate) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
20 Amendment of s.13.13 (Rules to provide for election of officers) . . . . . . . . 32
21 Insertion of new Division 3A of Part 13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Division 3A--Conduct of elections for office
13.24A Conduct by Electoral Commission . . . . . . . . . . . . . . . . . . . . . . . . 33
13.24B Application for industrial organisation or branch to
conduct its elections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
13.24C Objections to application to conduct elections . . . . . . . . . . . . . . 34
13.24D Registrar may permit industrial organisation or branch to
conduct its elections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
13.24E Industrial Registrar to arrange for conduct of elections . . . . . . . . 35
13.24F Provisions applicable to elections conducted by Electoral
Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
13.24G Expenses of election ballot . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
13.24H Death of candidate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
13.24I Ballot papers etc. from elections to be preserved . . . . . . . . . . . . 37
13.24J No action for defamation in certain cases . . . . . . . . . . . . . . . . . . 38
22 Omission of s.13.40 (Ballot-papers and other records to be preserved) . . . . 38
23 Amendment of s.13.41 (Registrar to conduct elections on request) . . . . . . 38
24 Replacement of Division 7 of Part 13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Division 7--Amalgamation of industrial organisations
Subdivision A--General
13.54 Application of objects to Division etc. . . . . . . . . . . . . . . . . . . . . . . . . 39
13.55 Interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
13.56 Procedure to be followed for proposed amalgamation etc. . . . . . . . . 42
Subdivision B--Preliminary matters
13.57 Federations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
13.58 Use of resources to support proposed amalgamation . . . . . . . . . . . . 44
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Industrial Relations Amendment
Subdivision C--Commencement of amalgamation procedure
13.59 Scheme for amalgamation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
13.60 Alternative scheme for amalgamation . . . . . . . . . . . . . . . . . . . . . . . . 45
13.61 Approval by committee of management . . . . . . . . . . . . . . . . . . . . . . 46
13.62 Community of interest declaration . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
13.63 Application for approval for submission of amalgamation
to ballot . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
13.64 Holding office after amalgamation . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
13.65 Application for exemption from ballot . . . . . . . . . . . . . . . . . . . . . . . . 51
13.66 Application for ballot not conducted under section 13.73J . . . . . . . . 51
13.67 Lodging "yes" case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Subdivision D--Role of the Electoral Commission
13.68 Ballots to be conducted by the Electoral Commission . . . . . . . . . . . 52
13.69 Notification of Electoral Commission . . . . . . . . . . . . . . . . . . . . . . . . 52
13.70 Officer of industrial organisation to provide information for
ballot etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
Subdivision E--Procedure for approval of amalgamation
13.71 Fixing hearing in relation to amalgamation etc. . . . . . . . . . . . . . . . 53
13.72 Submissions at amalgamation hearings . . . . . . . . . . . . . . . . . . . . . . 53
13.73 Approval for submission to ballot of amalgamation not
involving extension of eligibility rules etc. . . . . . . . . . . . . . . . . . . . 54
13.73A Objections in relation to amalgamation involving
extension of eligibility rules etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
13.73B Approval for submission to ballot of amalgamation
involving extension of eligibility rules etc. . . . . . . . . . . . . . . . . . . . 56
13.73C Fixing commencing and closing days of ballot . . . . . . . . . . . . . . . 59
13.73D Roll of voters for ballot . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
13.73E "Yes" case and "no" case for amalgamation . . . . . . . . . . . . . . . . 60
13.73F Alteration and amendment of scheme . . . . . . . . . . . . . . . . . . . . . . . 62
13.73G Outline of scheme for amalgamation . . . . . . . . . . . . . . . . . . . . . . . . 63
13.73H Exemption from ballot . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
13.73I Approval for ballot not conducted under section 13.73J . . . . . . . . . 64
13.73J Secret postal ballot of members . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
13.73K Determination of approval of amalgamation by members . . . . . . . 66
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Industrial Relations Amendment
13.73L Further ballot if amalgamation not approved . . . . . . . . . . . . . . . . . 67
13.73M Inquiries into irregularities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
13.73N Approval of amalgamation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
13.73O Expenses of ballot . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
Subdivision F--Amalgamation taking effect
13.73P Action to be taken after ballot . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
13.73Q Assets and liabilities of deregistered industrial
organisation become assets and liabilities of amalgamated
organisation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
13.73R Effect of amalgamation on existing decisions of Commission . . . 70
13.73S Instruments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
13.73T Pending proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
13.73U Subdivision applies despite laws and agreements
prohibiting transfer etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
13.73V Amalgamated organisation to take steps necessary to
carry out amalgamation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
13.73W Certificates in relation to land and interests in land . . . . . . . . . . . 72
13.73X Certificates in relation to charges . . . . . . . . . . . . . . . . . . . . . . . . . . 73
13.73Y Certificates in relation to shares etc. . . . . . . . . . . . . . . . . . . . . . . . . 74
13.73Z Certificates in relation to other assets . . . . . . . . . . . . . . . . . . . . . . . 74
13.73ZACommission may resolve difficulties . . . . . . . . . . . . . . . . . . . . . . . . 75
Subdivision G--Validation
13.73ZB Validation of certain acts done in good faith . . . . . . . . . . . . . . . . . 76
13.73ZC Validation of certain acts after 4 years . . . . . . . . . . . . . . . . . . . . . . 77
13.73ZD Orders affecting application of section 13.73ZB or 13.73ZC . . . . 77
13.73ZE Commission may make orders in relation to consequences
of invalidity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
Subdivision H--Miscellaneous
13.73ZF Ballot papers etc. from ballots to be preserved . . . . . . . . . . . . . . 79
13.73ZG No action for defamation in certain cases . . . . . . . . . . . . . . . . . . 79
25 Amendment of s.13.87 (Auditors of industrial organisations) . . . . . . . . . . . . 80
26 Amendment of s.14.1 (Appointment of Industrial Inspectors) . . . . . . . . . . . 81
27 Amendment of s.14.11 (Payment of employee's wages etc. to
Industrial Inspector) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
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Industrial Relations Amendment
28 Amendment of s.14.12 (Industrial Inspector's obligation for
moneys paid on demand) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
29 Amendment of s.15.19 (Certifying Barrister) . . . . . . . . . . . . . . . . . . . . . . . . . 82
30 Amendment of s.17.16 (Payment of wages) . . . . . . . . . . . . . . . . . . . . . . . . . 82
31 Amendment of s.17.20 (Recovery of wages etc.) . . . . . . . . . . . . . . . . . . . . . 83
32 Amendment of s.17.21 (Enforcement of Industrial Magistrate's Orders) . . . 83
33 Replacement of s.18.19 (Offence re taking of ballot for office in
industrial organisation) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
18.19 Offences in relation to the conduct of ballots . . . . . . . . . . . . . . . . . . 84
34 Amendment of s.18.23 (Failure to provide information re
amalgamation ballot) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
35 Amendment of s.18.49 (Persons considered parties to offences) . . . . . . . . . 86
36 Insertion of new Part 19A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
PART 19A--SAVINGS, TRANSITIONAL AND REPEALS
19A.1 Repeals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
19A.2 Savings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
19A.3 Demarcation orders and disputes . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
19A.4 Transitional provisions in relation to amalgamations . . . . . . . . . . . . 89
37 Insertion of new Part 19B . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
PART 19B--RENUMBERING OF ACT
19B.1 Renumbering of Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
38 Minor and consequential amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
SCHEDULE . . . . . . . . . . . . . . . . . . . . . . . . . 92
MINOR AND CONSEQUENTIAL AMENDMENTS
1992
A BILL
FOR
An Act to amend the Industrial Relations Act 1990
8
Industrial Relations Amendment
BE IT ENACTED by the Queen's Most Excellent Majesty, by and with 1
the advice and consent of the Legislative Assembly of Queensland in 2
Parliament assembled, and by the authority of the same, as follows. 3
title 4
Short
Clause1. This Act may be cited as the Industrial Relations Amendment Act 5
1992. 6
7
Commencement
Clause2. Sections 5, 20 to 24, 34, 36 and 37 commence on a day to be fixed 8
by 9
proclamation. 10
Act 11
Amended
The Industrial Relation Act 1990 is amended as set out in this Act. 12
Clause3.
of s.1.3 (Objects) 13
Amendment
Clause4. After section 1.3(f)-- 14
insert-- 15
`(g) to encourage and facilitate the amalgamation of industrial 16
organisations where this will contribute to the attainment of the 17
object mentioned in paragraph (d); and 18
(h) to encourage and facilitate rationalisation of the coverage of 19
industrial organisations, particularly by reducing the number of 20
industrial organisations that are in an industry or enterprise.'. 21
of ss.1.4 and 1.5 22
Omission
Sections 1.4 and 1.5-- 23
Clause5.
omit. 24
9
Industrial Relations Amendment
of s.2.1 (Meaning of terms) 1
Amendment
Clause6.(1) Section 2.1(1) (definition "demarcation dispute")-- 2
omit. 3
(2) Section 2.1(1)-- 4
insert-- 5
` "certified agreement" means an agreement certified under Division 1A 6
of Part 10 that is in force, and includes an agreement varied-- 7
(a) under section 10.3L(2); or 8
(b) in accordance with a permission given under section 9
10.3M(3)(e); 10
"Commonwealth Act" means the Industrial Relations Act 1988 of the 11
Commonwealth; 12
"demarcation dispute" includes-- 13
(a) a dispute arising between 2 or more industrial organisations, or 14
within an industrial organisation, about the rights, status or 15
functions of members of the industrial organisations or industrial 16
organisation in relation to the employment of those members; or 17
(b) a dispute arising between employers and employees, or between 18
members of different industrial organisations, about the 19
demarcation of functions of employees or classes of employees; 20
or 21
(c) a dispute about the representation under this Act of the industrial 22
interests of employees by an industrial organisation of 23
employees; 24
"electoral official" means the Electoral Commissioner, the Deputy 25
Electoral Commissioner or a member of the staff of the Electoral 26
Commission; 27
"registered company auditor" means a registered company auditor within 28
the meaning of the Corporations Law; 29
"repealed Acts" means the Acts or parts of Acts that have been repealed 30
by this Act;'. 31
(3) Section 2.1(1) (definition "decision", after `agreement approved')-- 32
10
Industrial Relations Amendment
insert `, certified'. 1
(4) Section 2.1(1) (definition "industrial agreement")-- 2
omit `section 12.4 or'. 3
of s.4.25 (Dealing with demarcation disputes) 4
Replacement
Section 4.25-- 5
Clause7.
omit, insert-- 6
disputes 7
`Demarcation
`4.25 In exercising its powers in relation to a demarcation dispute, the 8
Commission-- 9
(a) must consider whether it should consult with appropriate peak 10
councils and industrial organisations; and 11
(b) may consult with appropriate peak councils and industrial 12
organisations and, if it does so, must inform the parties to the 13
dispute of any views expressed by the peak councils and 14
organisations. 15
coverage 16
`Organisation
`4.25A(1) A Full Bench may, on the application of an industrial 17
organisation, an employer or the Minister, make the following orders-- 18
(a) an order that an industrial organisation of employees is to have 19
the right, to the exclusion of another industrial organisation or 20
other industrial organisations, to represent under this Act the 21
industrial interests of a particular class or group of employees 22
who are eligible for membership of the organisation; 23
(b) an order that an industrial organisation of employees that does not 24
have the right to represent under this Act the industrial interests of 25
a particular class or group of employees is to have that right; 26
(c) an order that an industrial organisation of employees is not to 27
have the right to represent under this Act the industrial interests of 28
a particular class or group of employees who are eligible for 29
membership of the organisation. 30
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Industrial Relations Amendment
`(2) In considering whether to make an order under subsection (1), the 1
Full Bench-- 2
(a) must consider whether it should consult with appropriate peak 3
councils and industrial organisations; and 4
(b) may consult with appropriate peak councils and industrial 5
organisations and, if it does so, must inform the parties to the 6
dispute of any views expressed by the peak councils and 7
organisations; and 8
(c) must have regard to any agreement or understanding of which the 9
Full Bench becomes aware that deals with the right of an 10
industrial organisation of employees to represent under this Act 11
the industrial interests of a particular class or group of employees. 12
`(3) An order under subsection (1) may be subject to conditions or 13
limitations. 14
`(4) If the Full Bench makes an order under subsection (1), the Full 15
Bench must refer the matter to a nominated Commissioner unless the Full 16
Bench is satisfied that the rules of the industrial organisations concerned do 17
not need to be altered. 18
`(5) If a matter is referred to a nominated Commissioner under 19
subsection (4), the nominated Commissioner must, after giving each 20
industrial organisation concerned an opportunity, as prescribed, to be heard, 21
determine such alterations (if any) of the rules of any industrial organisation 22
concerned as are, in the nominated Commissioner's opinion, necessary to 23
reflect the order of the Full Bench. 24
`(6) An alteration of the rules of an industrial organisation determined 25
under subsection (5) takes effect on the day on which the determination is 26
made. 27
`(7) In this section-- 28
"nominated Commissioner" means the Chief Industrial Commissioner or 29
another Industrial Commissioner nominated by the Chief Industrial 30
Commissioner.'. 31
12
Industrial Relations Amendment
of s.5.4 (Power of Industrial Magistrate concerning 1
Amendment
unpaid superannuation contribution) 2
Clause8. After section 5.4(3)-- 3
insert-- 4
`(3A) If the former employee in relation to whom an order under 5
subsection (3) is made-- 6
(a) cannot be located after all reasonable inquiries; or 7
(b) fails to nominate a superannuation scheme or fund for the 8
purpose of the order; 9
the sum ordered to be paid must be paid into the Unclaimed Moneys Fund 10
in the Treasury.'. 11
of s.8.6 (Powers incidental to exercise of jurisdiction) 12
Amendment
Section 8.6(b)-- 13
Clause9.
omit, insert-- 14
`(b) direct-- 15
(i) who are the parties to the proceedings; and 16
(ii) by whom the parties may be represented; and 17
(iii) persons to be summoned to attend the proceedings, if they 18
have not been summoned and it appears that they should 19
attend the proceedings; and 20
(iv) parties to be joined or struck out; and 21
(v) who may be heard and on what conditions; and'. 22
of s.8.17 (Representation of parties) 23
Amendment
Clause10. Section 8.17(1)(a)-- 24
omit, insert-- 25
`(a) in relation to proceedings in the Industrial Court-- 26
(i) if the proceedings are for the prosecution of an offence under 27
any Act; or 28
13
Industrial Relations Amendment
(ii) if all parties to the proceedings consent; or 1
(iii) if the Court grants leave; or'. 2
of s.8.19 (Intervention) 3
Amendment
Clause11. Section 8.19 (heading)-- 4
omit, insert-- 5
`Intervention as of right'. 6
of new Division 1A of Part 10 7
Insertion
After Division 1 of Part 10-- 8
Clause12.
insert-- 9
1A--Certified agreements 10
`Division
of Division 11
`Objects
`10.3A(1) The objects of this Division are to assist the making and 12
certifying of agreements that will facilitate labour market reform by 13
encouraging-- 14
(a) single bargaining units; and 15
(b) workplace bargaining that is directed at increased productivity; 16
and 17
(c) continuous improvement in the workplace; and 18
(d) the achievement in the workplace of-- 19
(i) best practice; and 20
(ii) increased work satisfaction; and 21
(iii) career opportunities. 22
`(2) The Commission must, as far as practicable, perform its functions 23
under this Division in a way that furthers the objects of this Act and, in 24
particular, the objects of this Division. 25
14
Industrial Relations Amendment
`(3) Section 4.27 does not apply to the performance of functions of the 1
Commission under this Division. 2
3
`Definitions
`10.3B In this Division-- 4
"party" to an agreement includes an employer who is a successor, assignee 5
or transmittee (whether immediate or not) to or of the whole or part of 6
the business of a party, including a corporation that has acquired or 7
taken over the whole or part of the business of the party; 8
"period of the agreement" means-- 9
(a) the period of operation of the agreement specified in the 10
agreement; or 11
(b) that period as extended or further extended under section 10.3K; 12
"single business" means-- 13
(a) a business that is carried on by a single employer; or 14
(b) a business that is carried on by 2 or more employers as a joint 15
venture or common enterprise; or 16
(c) a single project or undertaking; or 17
(d) an activity carried on by-- 18
(i) the State; or 19
(ii) a body, association, office or other entity established for a 20
public purpose by or under a law of the State; or 21
(iii) any other body in which the State has a controlling interest; 22
"single employer", in relation to a single business, includes, if the 23
employer is a corporation, wholly owned subsidiaries of the 24
corporation. 25
may be made about industrial matters 26
`Agreements
`10.3C(1) An employer or an industrial organisation of employers and 27
an industrial organisation of employees may make a memorandum of 28
agreement about an industrial matter. 29
15
Industrial Relations Amendment
`(2) The parties to the agreement must apply to the Commission to 1
certify the agreement. 2
may intervene in certain cases 3
`Minister
`10.3D(1) If an agreement applies only to a single business, part of a 4
single business or a single place of work, the Minister may intervene in the 5
application on the ground that certification of the agreement may jeopardise 6
seriously the public interest. 7
`(2) The intervention is to be made by giving written notice to the 8
Industrial Registrar. 9
`(3) This section does not limit the operation of section 8.6 or 8.19. 10
`(4) This section expires 18 months after the commencement of the 11
section. 12
of agreements under this Division 13
`Certification
`10.3E(1) If application is made under section 10.3C(2), the 14
Commission must certify an agreement if it is satisfied that-- 15
(a) the agreement does not disadvantage the employees who are 16
covered by the agreement in relation to their terms of 17
employment; and 18
(b) the agreement includes procedures for preventing and settling 19
disputes between the employers and employees covered by the 20
agreement about matters arising under the agreement; and 21
(c) subject to subsection (3), before the application for certification of 22
the agreement was made, each industrial organisation of 23
employees that is a party to the agreement took reasonable 24
steps-- 25
(i) to consult with its members whose employment is covered 26
by the agreement over the terms of the agreement; and 27
(ii) to inform those members of the industrial organisation's 28
intention to apply for certification; and 29
(d) each industrial organisation of employees that is a party to the 30
agreement has-- 31
16
Industrial Relations Amendment
(i) informed the Commission whether or not it consulted with 1
its members as described in paragraph (c)(i); and 2
(ii) informed the Commission of the outcome of any such 3
consultations; and 4
(e) if the agreement applies only to a single business, part of a single 5
business or a single place of work-- 6
(i) subject to subsections (4) and (5), the parties to the 7
agreement include-- 8
(A) each industrial organisation of employees that is a party 9
to an award that binds an employer in respect of the 10
work performed in that business, part of a business or 11
place of work; or 12
(B) if there is no such award--an industrial organisation of 13
employees that is able to represent the industrial 14
interests of the employees who are covered by the 15
agreement; and 16
(ii) the agreement has been negotiated, on the one hand, by each 17
employer concerned or a representative of the employer, 18
and, on the other hand, by a single person or group of 19
persons representing all the other parties to the agreement; 20
and 21
(f) the agreement specifies its period of operation. 22
`(2) For the purposes of subsection (1)(a), an agreement is taken to 23
disadvantage employees in relation to their terms of employment only if-- 24
(a) certification of the agreement would result in the reduction of any 25
entitlements or protections of the employees under an award or 26
an industrial agreement; and 27
(b) in the context of their terms and conditions of employment 28
considered as a whole, the Commission considers that the 29
reduction would be contrary to the public interest. 30
`(3) Subsection (1)(c) does not apply to an industrial organisation of 31
employees if-- 32
(a) the agreement applies only to a new business, project or 33
undertaking; and 34
17
Industrial Relations Amendment
(b) at the time when the application for certification is made, no 1
members of the industrial organisation have yet been employed 2
in connection with the business, project or undertaking. 3
`(4) Subsection (1)(e)(i) does not apply if the Commission is satisfied 4
that-- 5
(a) each industrial organisation of employees referred to in 6
subsection (1)(e)(i)(A) has been given the opportunity to be a 7
party to the agreement; and 8
(b) at least 1 of the organisations is a party to the agreement; and 9
(c) the agreement is in the interests of the employees whose 10
employment is covered by the agreement. 11
`(5) Subsection (1)(e)(i)(A) does not apply to an industrial organisation 12
of employees if none of its members are employed in the business, part of a 13
business or place of work concerned. 14
Commission may refuse to certify agreements 15
`When
`10.3F(1) Despite section 10.3E, the Commission may refuse to certify 16
an agreement if-- 17
(a) the agreement is one that does not apply only to a single business, 18
part of a single business or a single place of work; and 19
(b) the Commission considers that certification of the agreement 20
would be contrary to the public interest. 21
`(2) Despite section 10.3E, if-- 22
(a) the agreement applies only to a single business, part of a single 23
business or a single place of work; and 24
(b) the Minister has intervened in the application under section 25
10.3D; 26
the Commission may also refuse to certify the agreement if it thinks that 27
certification of the agreement is likely to jeopardise seriously the public 28
interest. 29
`(3) Subsection (2) and this subsection expire 18 months after the 30
commencement of this section. 31
18
Industrial Relations Amendment
options open to Commission 1
`Other
`10.3G(1) If, under section 10.3E or 10.3F, the Commission has 2
grounds to refuse to certify the agreement-- 3
(a) the Commission may accept an undertaking from 1 or more of 4
the parties in relation to the operation of the agreement and may 5
certify the agreement if it is satisfied that the undertaking meets 6
its concerns; and 7
(b) in any case, before refusing to certify the agreement, the 8
Commission must give the parties an opportunity to amend it or 9
to take any other action that may be necessary to make the 10
agreement certifiable. 11
`(2) If an undertaking is not observed, the Commission may terminate 12
the agreement after giving the parties an opportunity to be heard. 13
for preventing and settling disputes 14
`Procedures
`10.3H Procedures in an agreement for preventing and settling disputes 15
between employers and employees covered by the agreement may, if the 16
Commission so approves, empower the Commission to settle disputes over 17
the application of the agreement. 18
of certified agreements 19
`Operation
`10.3I(1) A certified agreement comes into force when it is certified and, 20
during the period of the agreement, it remains in force unless-- 21
(a) the Commission terminates it under section 10.3G(2); or 22
(b) because of 1 or more orders or declarations under section 10.3M 23
or 10.3N-- 24
(i) the agreement is terminated; or 25
(ii) all the remaining parties to the agreement are industrial 26
organisations of employees; or 27
(iii) all the remaining parties to the agreement are employers or 28
industrial organisations of employers. 29
19
Industrial Relations Amendment
`(2) If the agreement remains in force until the end of the period of the 1
agreement, then, at the end of the period, the agreement continues in force 2
until-- 3
(a) it is terminated by the Commission; or 4
(b) it is varied by the parties (other than under section 10.3M(3)(e)); 5
or 6
(c) a new agreement, in substitution for the agreement, is certified 7
under this Division; or 8
(d) all the remaining parties to the agreement are industrial 9
organisations of employees; or 10
(e) all the remaining parties to the agreement are employers or 11
industrial organisations of employers. 12
may retire from a certified agreement 13
`Party
`10.3J(1) A party to a certified agreement-- 14
(a) within 30 days before the end of the period of the agreement; or 15
(b) at any time while the agreement remains in force because of 16
section 10.3I(2); 17
may file in the Industrial Registrar's office a notice in accordance with the 18
rules of court signifying an intention to retire from the agreement at the end 19
of a specified period of at least 30 days from the day of filing. 20
`(2) At the end of the specified period, the party that has filed the notice 21
ceases to be a party to the certified agreement. 22
of certified agreements 23
`Extension
`10.3K(1) Subject to subsection (2), the parties to a certified agreement 24
may extend the period of the agreement's operation. 25
`(2) An extension has effect only if-- 26
(a) the parties agree to the extension; and 27
(b) the parties notify the Commission in writing of the extension 28
20
Industrial Relations Amendment
before the end of the period of the agreement's operation or that 1
period as extended or further extended under this section. 2
of certified agreements 3
`Effect
`10.3L(1) While a certified agreement is in force-- 4
(a) the terms of the agreement prevail over the terms of an award or 5
an industrial agreement to the extent of the inconsistency; and 6
(b) a term of the agreement can be varied by the parties, but only as 7
provided in section 10.3M. 8
`(2) The agreement may only be varied by the Commission on the 9
application of the parties for the purpose of removing ambiguity or 10
uncertainty. 11
`(3) Subject to section 10.3H, the Commission must not exercise 12
arbitration powers in relation to the agreement. 13
agreements may be varied or terminated by Full Bench 14
`Certified
`10.3M(1) At any time while a certified agreement is in force, a Full 15
Bench may review the operation of the agreement after giving the parties to 16
the agreement an opportunity to be heard. 17
`(2) The Full Bench may act under subsection (1) only-- 18
(a) on its own motion; or 19
(b) on application by an industrial organisation or person bound by 20
the agreement. 21
`(3) If the Full Bench finds-- 22
(a) in the case of any agreement--that the continued operation of the 23
agreement would be unfair to the employees covered by the 24
agreement; or 25
(b) in the case of an agreement that does not apply only to a single 26
business, part of a business or a single place of work--that the 27
continued operation of the agreement would be contrary to the 28
public interest; 29
it may do any of the following things-- 30
21
Industrial Relations Amendment
(c) by order, terminate the agreement; 1
(d) accept an undertaking from all or any of the parties in relation to 2
the operation of the agreement; 3
(e) permit the parties to vary the agreement. 4
`(4) If an undertaking is not observed, a Full Bench may, by order, 5
terminate the agreement after giving the parties an opportunity to be heard. 6
`(5) If a party to a certified agreement engages in industrial action in 7
relation to a matter dealt with in the agreement, another party who is 8
affected by the industrial action may apply to a Full Bench for a declaration 9
that the applicant is no longer bound by the agreement. 10
`(6) The Full Bench may, by order, declare that the applicant is no longer 11
bound by the agreement if the Full Bench is satisfied that it is in the public 12
interest to make the declaration. 13
`(7) Despite subsections (2) and (3), the following provisions have effect 14
in relation to an agreement that applies only to a single business, part of a 15
single business or a single place of work-- 16
(a) the Minister may apply to a Full Bench to review the agreement 17
on the ground that its continued operation would jeopardise 18
seriously the public interest; 19
(b) if, on such an application, the Full Bench finds that the ground is 20
established, it may do any of the things specified in subsection 21
(3)(c), (d) and (e). 22
`(8) Subsection (7) and this subsection expire 18 months after the 23
commencement of this section. 24
agreements may be terminated by parties 25
`Certified
`10.3N(1) A party to a certified agreement may, with the consent of all 26
the relevant parties, give the Commission written notice stating that the 27
party does not want to remain bound by the agreement. 28
`(2) All the parties to a certified agreement may jointly give the 29
Commission written notice stating that they want the agreement to be 30
terminated. 31
22
Industrial Relations Amendment
`(3) On receipt of a notice under subsection (1) or (2), if the Commission 1
is satisfied that it would be in the public interest for the party to be no longer 2
bound or for the agreement to be terminated, as the case may be, the 3
Commission may, by order, make a declaration to that effect. 4
`(4) In this section-- 5
"relevant party" to an agreement means-- 6
(a) in relation to a party that is an employer or an industrial 7
organisation of employers--a party that is an industrial 8
organisation of employees; or 9
(b) in relation to a party to the agreement that is an industrial 10
organisation of employees--a party that is an employer or an 11
industrial organisation of employers. 12
of certified agreements 13
`Enforcement
`10.3O An agreement certified under this Division is enforceable in the 14
same way as an award.'. 15
of s.10.12 (Powers of Commission re awards) 16
Amendment
Section 10.12(1)-- 17
Clause13.
omit `terminate', insert `rescind'. 18
of s.11.7 (University or college of advanced education 19
Replacement
students) 20
Section 11.7-- 21
Clause14.
omit, insert-- 22
work permit 23
`Student's
`11.7(1) On application, the Industrial Registrar and, on appeal from the 24
registrar, the Commission, may grant to a student participating in a tertiary 25
study course a permit to work for a period in a calling. 26
`(2) The student must provide satisfactory proof on the application that 27
the period of work in the calling is necessary to complete the course. 28
23
Industrial Relations Amendment
`(3) The registrar or Commission granting the permit must determine 1
and specify in the permit-- 2
(a) the period of work; and 3
(b) the rate of the student's wage. 4
`(4) When a permit is granted, the Industrial Registrar is to notify 5
immediately the secretary of the industrial organisation of employees in the 6
calling of the grant of the permit and the permit's conditions. 7
`(5) This section applies despite any award, industrial agreement or 8
certified agreement.'. 9
of s.11.11 (Reinstatement and re-employment) 10
Omission
Section 11.11-- 11
Clause15.
omit. 12
of s.11.22 (Entitlement to long service leave) 13
Amendment
Clause16. Section 11.22 (1st sentence)-- 14
omit `The entitlement of an employee', 15
insert `Subject to adjustments made for a seasonal employee under 16
sections 11.32 and 11.33, the entitlement of an employee'. 17
of s.11.32 (Long service leave in meat works and sugar 18
Amendment
industry) 19
Section 11.32-- 20
Clause17.
omit, insert-- 21
Service leave in meat works and sugar industry 22
`Long
`11.32(1) In this section-- 23
"actual service", in relation to an employee to whom this section applies, 24
means the period of actual service the employee is taken to have had 25
with an employer under the rules in subsection (5); 26
24
Industrial Relations Amendment
"continuous service", in relation to an employee to which this section 1
applies, means the period of continuous service the employee is taken 2
to have had with an employer under the rules in subsection (5) for the 3
purpose of section 11.22; 4
"owners" of a meat works includes any person who carries on the business 5
of the works; 6
"period between seasons" includes-- 7
(a) the period between the termination of one season and the start of 8
the next season; and 9
(b) in relation to a particular employee, the period between the day on 10
which the employee ceases employment in one season and the 11
day on which the employee starts employment in the next season; 12
"season" means-- 13
(a) in relation to the sugar industry, a period, whether falling-- 14
(i) completely in one calendar year; or 15
(ii) partly in one calendar year and partly in the next calendar 16
year; 17
during which-- 18
(iii) sugar cane is taken delivery of and crushed at a sugar mill; or 19
(iv) harvesting of sugar cane, or farm work, is performed in the 20
sugar industry; and 21
(b) in relation to a meat works, a period, whether falling-- 22
(i) completely in one calendar year; or 23
(ii) partly in one calendar year and partly in the next calendar year; 24
during which stock are taken delivery of and slaughtered at a 25
meat works; 26
"seasonal employment" means employment related to season; 27
"seasonal entitlement", in relation to each period of long service leave 28
provided under section 11.22, means the period of long service leave 29
to which an employee to whom this section applies is entitled by using 30
the formula in subsection (6); 31
25
Industrial Relations Amendment
the formula in subsection (6); 1
"unadjusted entitlement" means the period of long service leave to which 2
an employee would be entitled under section 11.22 if-- 3
(a) the rules in subsection (5) for calculating the period of continuous 4
employment with the employer for the purpose of the section 5
11.22 were applied; but 6
(b) the adjustment of the entitlement by using the formula in 7
subsection (6) were not made. 8
`(2) This section applies to an employee who is entitled to a period of 9
long service leave because the Commission has conferred, under section 10
11.21, an entitlement to long service leave on full pay on-- 11
(a) employees employed in seasonal employment in the sugar 12
industry; or 13
(b) employees employed in or about meat works in seasonal 14
employment by the meat works owners; 15
`(3) The object of this section is to prescribe the entitlement to long 16
service leave of an employee to which it applies by-- 17
(a) determining under subsection (5)-- 18
(i) how the employee's period of continuous service with an 19
employer must be calculated for the purpose of calculating 20
the employee's unadjusted entitlement; and 21
(ii) how the employee's period of actual service with an 22
employer must be calculated; and 23
(b) determining by the formula in subsection (6) how the employee's 24
unadjusted entitlement must be adjusted to take into account the 25
employee's actual service. 26
`(4) The rules in subsection (5) apply for the purpose of determining, in 27
relation to an employee-- 28
(a) the employee's period of continuous service with an employer 29
for the purpose of section 11.22; and 30
(b) the employee's period of actual service with the employer. 31
26
Industrial Relations Amendment
`(5) The rules are-- 1
(a) the employee's service with an employer (the "employer") is 2
taken not to be broken (and never has been broken) by a period 3
when the employee was not employed by the employer between 4
seasons if-- 5
(i) in one season, the employee's service with the employer 6
continued until the termination of the season or until an 7
earlier day on which the employee's employment was 8
terminated by the employer; and 9
(ii) in the next season, the employee's service with the same 10
employer started on the opening of the season or on a later 11
day in that season on which the employer required the 12
employee to start employment; and 13
(b) subject to paragraph (c), service before the commencement of 14
this subsection is to be treated in the same way as service after the 15
commencement; and 16
(c) if the employee is engaged in the calling of the harvesting of 17
sugar cane or farm work in the sugar industry, service had by the 18
employee with the employer before 23 June 1990 is not to be 19
taken into account; and 20
(d) any period between seasons, during which period the employee is 21
not in employment with the employer-- 22
(i) must be taken into account for the purpose of calculating the 23
employee's period of continuous service with an employer 24
for the purpose of section 11.22; and 25
(ii) must not to be taken into account for the purpose of 26
calculating the length of the employee's actual service; and 27
(e) times in a period between seasons when the employee is 28
employed by the employer are to be taken into account; and 29
(f) long service leave to which an employee is entitled, or any part of 30
that leave-- 31
(i) may be given to, and taken by, the employee during the period 32
between seasons; and 33
(ii) if taken during the period between seasons, is taken to have 34
27
Industrial Relations Amendment
started on the last cessation of the employee's employment 1
by the employer. 2
`(6) In relation to each period of long service leave provided for under 3
section 11.22, the seasonal entitlement of an employee to whom this section 4
applies is the period obtained by using the following formula-- 5
unadjusted entitlement X actual service 6
continuous service'. 7
of new Divisions 4 and 5 of Part 11 8
Insertion
After Division 3 of Part 11-- 9
Clause18.
insert-- 10
`Division 4--Reinstatement and re-employment 11
for reinstatement, re-employment or compensation 12
`Application
`11.37(1) If an employee is dismissed from employment, application for 13
relief under section 11.38 may be made to the Commission-- 14
(a) within 21 days after the dismissal; or 15
(b) within a longer period after the dismissal that the Commission 16
may allow at any time in the circumstances of the case. 17
`(2) An application may be made by-- 18
(a) the employee; or 19
(b) an industrial organisation of employees of which the employee is 20
a member, acting on behalf of the employee and with the 21
employee's consent. 22
`(3) An application cannot be made if the dismissal is subject to appeal or 23
review under another Act or law. 24
`(4) Before the Commission hears an application, a conference of the 25
parties to the application must be held-- 26
(a) to explore the possibility of resolving the matters at issue by 27
conciliation; and 28
(b) to ensure that the parties are fully informed of the possible 29
28
Industrial Relations Amendment
consequences of further proceedings on the application. 1
on application 2
`Orders
`11.38(1) If the Commission on hearing an application for relief from 3
dismissal considers that the dismissed employee should be reinstated or re- 4
employed, the Commission may order-- 5
(a) that the employee be reinstated by the employer in the 6
employee's former position without prejudice to the former 7
employment conditions; or 8
(b) if the Commission considers that reinstatement would be 9
inappropriate, for example, because the employer could not 10
practically reinstate the employee--that the employee be re- 11
employed by the employer in some other position, if available, on 12
any conditions that may be determined by the Commission; or 13
(c) if the Commission considers that an order under paragraph (a) or 14
(b) is inappropriate--that the employer pay the employee an 15
amount of compensation determined by the Commission. 16
`(2) An order that an employee be reinstated or re-employed may specify 17
when the reinstatement or re-employment is to start. 18
`(3) Under subsection (1)(c), the Commission must not determine an 19
amount of compensation that exceeds the amount obtained in accordance 20
with the formula-- 21
average monthly wages X years of employment 22
where-- 23
"average monthly wages" means the employee's average monthly wages 24
(a) over the period of the employment by the employer; or 25
(b) over the period of 1 year before the day the dismissal took effect; 26
whichever period is less; 27
"years of employment" means the number of years that the employee was 28
employed by the employer, including a fraction of a year, if necessary. 29
`(4) If the Commission makes an order under subsection (1), it may also 30
order the employer to pay to the employee an amount it considers 31
29
Industrial Relations Amendment
appropriate as remuneration for wages lost by the employee between the 1
day the dismissal took effect and the day on which the Commission's order 2
is complied with. 3
`(5) The remuneration must not exceed the actual amount of loss to the 4
employee because of not receiving wages from the employer, after taking 5
into account any employment benefits or other wages received by the 6
employee during the period for which remuneration is being assessed. 7
`(6) If the Commission makes an order under subsection (1), it may also 8
order the repayment by the employee of any amounts paid to the employee 9
by or on account of the employer on termination of the employee's 10
employment. 11
of dismissal relief order on leave 12
`Effect
`11.39 If the Commission makes an order under section 11.38(1), the 13
interruption to the employee's continuity of service caused by the dismissal 14
to which the order relates is to be disregarded for the purpose of 15
determining the employee's entitlement to sick leave, annual leave or long 16
service leave. 17
for frivolous or vexatious applications 18
`Costs
`11.40 If the Commission considers that an application for relief under 19
section 11.38 is frivolous or vexatious, the costs it may order against the 20
applicant include costs in respect of representation by counsel, solicitor or 21
agent whether or not the Commission has certified as prescribed by section 22
8.18. 23
orders against employer 24
`Further
`11.41(1) If an employer wilfully fails to comply with an order made 25
against the employer under section 11.38 (the "relief order"), the 26
Commission may-- 27
(a) further order the employer to pay to the employee an amount of 28
not more than the monetary value of 50 penalty units together 29
with a further amount as remuneration for lost wages; and 30
(b) may make the further order from time to time until the employer 31
30
Industrial Relations Amendment
complies with the relief order. 1
`(2) This section does not affect any other provision of this Act allowing 2
proceedings to be taken against the employer. 3
5--Protection of injured employees 4
`Division
of Division 5
`Interpretation
`11.42 In this Division-- 6
"dismissed", in relation to an injured employee-- 7
(a) includes a case where-- 8
(i) the employer imposes any unreasonable condition of 9
employment which is designed to make the employee leave 10
the employment; and 11
(ii) the employee leaves the employment; and 12
(b) does not include a case where the dismissal happens before, but 13
takes effect after, the commencement of this section; 14
"former position", in relation to an injured employee, means-- 15
(a) the position from which the injured employee was dismissed; or 16
(b) if the employee was transferred to a less advantageous position 17
before dismissal--the position held by the employee when the 18
employee became unfit for employment in the former position; 19
at the option of the employee; 20
"injured employee" means an employee who receives an injury; 21
"injury" means an injury within the meaning of the Workers' 22
Compensation Act 1990 in relation to which workers' compensation is 23
payable under the Act. 24
to be paid for the day employee injured 25
`Wages
`11.43(1) An injured employee is entitled to be paid by the employee's 26
employer full wages for the day on which the injury happens. 27
31
Industrial Relations Amendment
`(2) Subsection (1) has effect despite any award, industrial agreement, 1
certified agreement or contract of employment. 2
to employer for reinstatement after dismissal 3
`Application
`11.44(1) If an injured employee is dismissed because of unfitness for 4
employment in a position because of the injury, the employee may apply to 5
the employer for reinstatement to the employee's former position. 6
`(2) Subject to section 11.47, application must be made within 21 days 7
after the dismissal. 8
`(3) The employee must produce to the employer a certificate given by a 9
medical practitioner to the effect that the employee is fit for employment in 10
the former position. 11
to Commission for reinstatement order 12
`Application
`11.45(1) If an employer fails to reinstate immediately an employee who 13
applies under section 11.44 to be reinstated, the employee may apply to the 14
Commission for a reinstatement order. 15
`(2) An application may be made by-- 16
(a) the employee; or 17
(b) an industrial organisation of employees of which the employee is 18
a member applying on behalf of the employee and with the 19
employee's consent. 20
order to reinstate 21
`Commission
`11.46(1) If the Commission is satisfied that an employee, in relation to 22
whom an application under section 11.45 is made, is fit for employment in 23
the employee's former position, the Commission may order the employer 24
to reinstate the employee. 25
`(2) The order may specify terms of reinstatement, for example, the day 26
on which reinstatement is to take effect. 27
32
Industrial Relations Amendment
of time for application 1
`Extension
`11.47 The Commission may order an employer to reinstate an 2
employee under section 11.46 even if the employee applied to the employer 3
to be reinstated more than 21 days after the dismissal, if the Commission 4
considers that this would be appropriate in the circumstances of the case. 5
an offence in certain cases 6
`Dismissal
`11.48(1) An employer must not dismiss an injured employee solely or 7
principally because the employee is not fit for employment in a position 8
because of the injury within 3 months after the employee becomes unfit. 9
`(2) A person who contravenes subsection (1) commits an offence 10
against this Act. 11
Maximum penalty--40 penalty units 12
`(3) This section applies to a dismissal after the commencement of this 13
section even if the employee mentioned in subsection (1) became unfit 14
before the commencement. 15
of employee's rights 16
`Preservation
`11.49(1) This Division does not affect any other right of a dismissed 17
employee under any Act or law. 18
`(2) This Division cannot be affected by any contract or agreement.'. 19
of s.12.4 (Conciliation by Commissioner or Industrial 20
Repeal
Magistrate) 21
Section 12.4-- 22
Clause19.
omit. 23
of s.13.13 (Rules to provide for election of officers) 24
Amendment
Clause20.(1) Section 13.13(1)(a)-- 25
omit, insert-- 26
33
Industrial Relations Amendment
`(a) must provide for the election of the holder of each office in the 1
industrial organisation by-- 2
(i) a direct voting system; or 3
(ii) a collegiate electoral system; and'. 4
(2) After section 13.13(3)-- 5
insert-- 6
`(4) In this section-- 7
"collegiate electoral system" means a method of election comprising a 8
first stage, at which persons are elected to a number of offices by a 9
direct voting system, and 1 subsequent stage at which persons are 10
elected by and from a body of persons consisting of persons elected at 11
the first stage.'. 12
of new Division 3A of Part 13 13
Insertion
After Division 3 of Part 13-- 14
Clause21.
insert-- 15
3A--Conduct of elections for office 16
`Division
by Electoral Commission 17
`Conduct
`13.24A(1) Each election for an office in an industrial organisation or 18
branch of an industrial organisation is to be conducted by the Electoral 19
Commission. 20
`(2) Subsection (1) does not apply to an election for an office in an 21
industrial organisation or branch if an exemption granted to the organisation 22
or branch under section 13.24D is in force in relation to elections in the 23
organisation or branch or an election for the particular office. 24
for industrial organisation or branch to conduct its 25
`Application
elections 26
`13.24B(1) A committee of management of an industrial organisation or 27
branch of an industrial organisation may file in the Industrial Registrar's 28
Office an application for the organisation or branch, as the case may be, to 29
34
Industrial Relations Amendment
be exempted from section 13.24A(1) in relation to elections for offices, or 1
an election for a particular office, in the organisation or branch. 2
`(2) An application may be made by a committee of management of an 3
industrial organisation or branch of an industrial organisation only if the 4
committee of management-- 5
(a) has resolved to make the application; and 6
(b) has notified the members of the organisation or branch, as 7
prescribed, of the making of the resolution. 8
`(3) The application must be accompanied by a statutory declaration by a 9
member of the committee of management stating that subsection (2) has 10
been complied with. 11
`(4) On the filing of an application, the Industrial Registrar must publish 12
as prescribed, a notice setting out details of the application for the purpose 13
of bringing the notice to the attention of members of the industrial 14
organisation or branch concerned. 15
`(5) If the rules of an industrial organisation require an office to be filled 16
by an election by the members, or by some of the members, of a single 17
branch of the organisation, an election to fill the office is taken to be an 18
election for the branch. 19
to application to conduct elections 20
`Objections
`13.24C(1) Objection may be made to an application under section 21
13.24B(1) by a member of the industrial organisation or branch of the 22
industrial organisation in relation to which the application was made. 23
`(2) The Industrial Registrar is to hear, in the way prescribed, the 24
application and any objections properly made. 25
may permit industrial organisation or branch to conduct 26
`Registrar
its elections 27
`13.24D(1) If an application in relation to an industrial organisation or 28
branch has been filed under section 13.24B(1) and, after any objections 29
properly made have been heard, the Industrial Registrar is satisfied-- 30
(a) that the rules of the industrial organisation or branch comply with 31
35
Industrial Relations Amendment
the requirements of this Act relating to the conduct of elections; 1
and 2
(b) that, if the organisation or branch is exempted from section 3
13.24A(1), the elections for the organisation or branch, or the 4
election for the particular office, will be conducted-- 5
(i) under the rules of the organisation or branch, as the case 6
may be, and this Act; and 7
(ii) in a way that will afford members entitled to vote at the 8
elections or election an adequate opportunity of voting 9
without intimidation; 10
the Industrial Registrar may exempt the organisation or branch from section 11
13.24A(1) in relation to elections for the organisation or branch, or the 12
election for the particular office, as the case may be. 13
`(2) The Industrial Registrar may revoke an exemption granted to an 14
industrial organisation or branch under subsection (1)-- 15
(a) on application by the committee of management of the 16
organisation or branch; or 17
(b) if the registrar-- 18
(i) is no longer satisfied as mentioned in subsection (1); and 19
(ii) has given the committee of management of the organisation or 20
branch an opportunity, as prescribed, to show cause why the 21
exemption should not be revoked. 22
Registrar to arrange for conduct of elections 23
`Industrial
`13.24E(1) An industrial organisation or branch of an industrial 24
organisation (other than an organisation or branch to which the Industrial 25
Registrar has, under section 13.24D, granted an exemption) must file the 26
prescribed information in relation to an election in the Industrial Registrar's 27
Office before the prescribed day or any later day the registrar allows. 28
`(2) If-- 29
(a) the prescribed information is filed in the Industrial Registrar's 30
Office by the industrial organisation or branch (whether or not 31
before the prescribed day or the later day allowed by the 32
36
Industrial Relations Amendment
Industrial Registrar); and 1
(b) the Industrial Registrar is satisfied that an election is required to 2
be held under the rules of the organisation or branch; 3
the registrar must arrange for the conduct of the election by the Electoral 4
Commission. 5
applicable to elections conducted by Electoral Commission 6
`Provisions
`13.24F(1) If an electoral official is conducting an election, or taking a 7
step in relation to an election, for an office in, or in a branch of, an industrial 8
organisation, the electoral official-- 9
(a) subject to paragraph (b), must comply with the rules of the 10
organisation or branch; and 11
(b) may, despite anything in the rules of the organisation or branch, 12
take such action, and give such directions, as the electoral official 13
considers necessary-- 14
(i) to ensure that no irregularities happen in relation to the 15
election; or 16
(ii) to remedy any procedural defects that appear to the electoral 17
official to exist in the rules. 18
`(2) An election conducted by an electoral official, or a step taken in 19
relation to such an election, is not invalid merely because of a breach of the 20
rules of the industrial organisation or branch because of-- 21
(a) action taken under subsection (1); or 22
(b) an act done in compliance with a direction under subsection (1). 23
`(3) If an electoral official conducting an election, or taking a step in 24
connection with an election-- 25
(a) dies or becomes unable to complete the conduct of the election or 26
the taking of the step; or 27
(b) ceases to be qualified to conduct the election or to take the step; 28
the Electoral Commissioner must arrange for the completion of the conduct 29
of the election, or the taking of the step, by another electoral official. 30
37
Industrial Relations Amendment
of election ballot 1
`Expenses
`13.24G(1) The expenses (other than the expenses mentioned in 2
subsection (2)) of a ballot conducted by the Electoral Commission under 3
this Division are payable by the State. 4
`(2) The industrial organisation in relation to which the ballot is held 5
must pay for the printing, postage and distribution costs incurred by the 6
Electoral Commission in the conduct of the ballot. 7
`(3) The industrial organisation must pay to the State the costs mentioned 8
in subsection (2) within 1 month after receiving a written request from the 9
Electoral Commission to do so. 10
`(4) An amount payable by an industrial organisation under this section 11
may be recovered by the State as a debt payable to it. 12
of candidate 13
`Death
`13.24H(1) If-- 14
(a) 2 or more candidates are nominated for an election in relation to 15
an office in an industrial organisation or branch; and 16
(b) one of the candidates dies before the close of the ballot; 17
the election must be discontinued and a new election must be held. 18
`(2) Subsection (1) has effect despite anything in the rules of an industrial 19
organisation or branch. 20
papers etc. from elections to be preserved 21
`Ballot
`13.24I(1) If-- 22
(a) an election for an office is held under this Division; and 23
(b) the election is conducted by the Electoral Commission; 24
the industrial organisation or branch of the industrial organisation 25
concerned, every officer of the organisation or branch who is in a position 26
to do so, and the Electoral Commission, are to take such steps as are 27
necessary to ensure that all ballot-papers, envelopes and records relevant to 28
the election are preserved and kept by the Electoral Commission for a 29
period of 1 year after the election. 30
38
Industrial Relations Amendment
`(2) If-- 1
(a) an election for an office is held under this Division; and 2
(b) the election is conducted by the industrial organisation or branch; 3
the industrial organisation or branch of the industrial organisation 4
concerned, and every officer of the organisation or branch who is in a 5
position to do so, are to take such steps as are necessary to ensure that all 6
ballot-papers, envelopes and records relevant to the election are preserved 7
and kept by the industrial organisation or branch for a period of 1 year after 8
the election. 9
`(3) Subsections (1) and (2) have effect despite anything in the rules of 10
the industrial organisation or branch concerned. 11
action for defamation in certain cases 12
`No
`13.24J(1) A proceeding (whether civil or criminal) for defamation does 13
not lie against-- 14
(a) the State; or 15
(b) an electoral official; or 16
(c) a person acting at the request or direction of an electoral official; 17
in relation to the printing or publication of a document by the official or 18
person in the course of the conduct of an election under this Division. 19
`(2) In this section-- 20
"document" means a document or a copy of a document authorised by, or 21
on behalf of, a candidate in the election.'. 22
of s.13.40 (Ballot-papers and other records to be preserved) 23
Omission
Section 13.40-- 24
Clause22.
omit. 25
of s.13.41 (Registrar to conduct elections on request) 26
Amendment
Clause23.(1) Sections 13.41(1) (after `election' (1st occurring))-- 27
39
Industrial Relations Amendment
insert `(other than an election conducted under section 13.24A or 1
Division 7)'. 2
(2) Section 13.41(4)(b)-- 3
omit, insert-- 4
`(b) the registrar is to make arrangements with the Electoral 5
Commissioner for the conduct of the election by an electoral 6
official.'. 7
of Division 7 of Part 13 8
Replacement
Division 7 of Part 13-- 9
Clause24.
omit, insert-- 10
`Division 7--Amalgamation of industrial organisations 11
`Subdivision A--General 12
of objects to Division etc. 13
`Application
`13.54 It is the intention of the Parliament-- 14
(a) that, in the application to this Division of the objects of this Act, 15
particular regard should be had to the attainment of the objects 16
mentioned in section 1.3(g) and (h); and 17
(b) that this Act should be applied in relation to the amalgamation of 18
industrial organisations in a way that, to the greatest extent that is 19
consistent with the attainment of the objects mentioned in section 20
1.3(d), (e) and (f), is fair, practical, quick and non-legalistic. 21
22
`Interpretation
`13.55 In this Division-- 23
"alternative provision" means a provision of the kind mentioned in 24
section 13.60(1); 25
"amalgamated organisation", in relation to a completed amalgamation, 26
means the industrial organisation of which members of the 27
40
Industrial Relations Amendment
deregistered industrial organisations have become members under 1
section 13.73P(3)(d); 2
"amalgamation day", in relation to a completed amalgamation, means the 3
day fixed under section 13.73P(2) in relation to the amalgamation; 4
"asset" means property of any kind, and includes any right, interest or 5
claim of any kind in or in relation to property (whether arising under 6
an instrument or otherwise, and whether liquidated or unliquidated, 7
certain or contingent, accrued or accruing); 8
"authorised person", in relation to a completed amalgamation, means the 9
secretary of the amalgamated organisation or a person authorised, in 10
writing, by the committee of management of the amalgamated 11
organisation; 12
"charge" means a charge created in any way, and includes a mortgage and 13
an agreement to give or execute a charge or mortgage (whether on 14
demand or otherwise); 15
"closing day" for a ballot for a proposed amalgamation means the day, 16
from time to time, fixed under section 13.73C as the closing day of the 17
ballot; 18
"commencing day" for a ballot for a proposed amalgamation means the 19
day, from time to time, fixed under section 13.73C as the commencing 20
day of the ballot; 21
"completed amalgamation" means a proposed amalgamation that has 22
taken effect; 23
"debenture" has the same meaning as in Division 4 of Part 7.12 of the 24
Corporations Law; 25
"defect" includes a nullity, omission, error and irregularity; 26
"deregistered organisation", in relation to a completed amalgamation, 27
means an industrial organisation that has been deregistered under this 28
Division; 29
"deregistration", in relation to an industrial organisation, means the 30
cancellation of its registration; 31
"holder" of a charge includes a person in whose favour a charge is to be 32
given or executed (whether on demand or otherwise) under an 33
agreement; 34
41
Industrial Relations Amendment
"instrument" means an instrument of any kind, and includes-- 1
(a) any contract, deed, undertaking or agreement; and 2
(b) any mandate, instruction, notice, authority or order; and 3
(c) any lease, licence, transfer, conveyance or other assurance; and 4
(d) any guarantee, bond, power of attorney, bill of lading, negotiable 5
instrument or order for the payment of money; and 6
(e) any mortgage, charge, lien or security; 7
whether express or implied and whether made or given orally or in 8
writing; 9
"instrument to which this Division applies", in relation to a completed 10
amalgamation, means an instrument-- 11
(a) to which a deregistered organisation is a party; or 12
(b) that was given to, by or in favour of a deregistered organisation; 13
or 14
(c) in which a reference is made to a deregistered organisation; or 15
(d) under which any money is or may become payable, or any other 16
property is to be, or may become liable to be, transferred, 17
conveyed or assigned, to or by a deregistered organisation; 18
"interest", in relation to a company, includes a prescribed interest made 19
available by the company within the meaning of the Corporations Law; 20
"invalidity" includes a defect; 21
"irregularity" includes a breach of the rules of an industrial organisation, 22
but in Subdivision G does not include an irregularity in relation to a 23
ballot; 24
"proceeding to which this Division applies", in relation to a completed 25
amalgamation, means a proceeding to which a deregistered 26
organisation was a party immediately before the amalgamation day; 27
"proposed alternative amalgamation", in relation to a proposed 28
amalgamation, means an amalgamation proposed to be made under an 29
alternative provision; 30
"proposed amalgamated organisation", in relation to a proposed 31
amalgamation, means the industrial organisation or proposed industrial 32
42
Industrial Relations Amendment
organisation of which members of the proposed deregistering 1
organisations are proposed to become members under this Division; 2
"proposed amalgamation" means the proposed carrying out of 3
arrangements in relation to 2 or more industrial organisations under 4
which-- 5
(a) an industrial organisation is, or 2 or more industrial organisations 6
are, to be deregistered under this Division; and 7
(b) members of the industrial organisation or organisations to be 8
deregistered are to become members of another industrial 9
organisation (whether existing or proposed); 10
"proposed deregistering organisation", in relation to a proposed 11
amalgamation, means an industrial organisation that is to be 12
deregistered under this Division; 13
"proposed principal amalgamation", in relation to a proposed 14
amalgamation, means-- 15
(a) if the scheme for the amalgamation contains an alternative 16
provision--the amalgamation proposed to be made under the 17
scheme otherwise than under an alternative provision; or 18
(b) in any other case--the proposed amalgamation. 19
to be followed for proposed amalgamation etc. 20
`Procedure
`13.56(1) For the purpose of implementing the scheme for a proposed 21
amalgamation, the procedure provided by this Division is to be followed. 22
`(2) If it appears to the Commission that the performance of an act, 23
including-- 24
(a) the deregistration of an industrial organisation; and 25
(b) the registration of an organisation; and 26
(c) the giving of consent to-- 27
(i) a change in the name of an industrial organisation; or 28
(ii) an alteration of the eligibility rules of an industrial 29
organisation; 30
is sought for the purposes of a proposed amalgamation, the Commission 31
43
Industrial Relations Amendment
may perform the act only in accordance with this Division. 1
`(3) If any difficulty arises, or appears likely to arise, in the application of 2
this Act for the purpose of implementing the scheme for a proposed 3
amalgamation, the Commission may give directions and make orders to 4
resolve the difficulty. 5
`(4) Directions and orders under subsection (3)-- 6
(a) have effect subject to any order of the Court; and 7
(b) have effect despite anything in-- 8
(i) the regulations or the rules of court; or 9
(ii) the rules of an industrial organisation or any association 10
proposed to be registered as an industrial organisation. 11
`Subdivision B--Preliminary matters 12
13
`Federations
`13.57(1) The existing industrial organisations concerned in a proposed 14
amalgamation may jointly file in the Industrial Registrar's Office an 15
application for recognition as a federation. 16
`(2) The application must-- 17
(a) be filed before an application is filed under section 13.63 in 18
relation to the amalgamation; and 19
(b) include such particulars as are prescribed. 20
`(3) If the Commission is satisfied that the industrial organisations intend 21
to file an application under section 13.63 in relation to the amalgamation 22
within the prescribed period, the Commission must grant the application for 23
recognition as a federation. 24
`(4) If the application is granted, the Industrial Registrar must enter in the 25
register kept under section 6.3(1)(b) the prescribed details in relation to the 26
federation. 27
`(5) On registration, the federation may, subject to subsection (6) and the 28
regulations, represent its constituent members for all of the purposes of this 29
Act. 30
44
Industrial Relations Amendment
`(6) Subsection (5) does not authorise the federation to become a party to 1
an award, industrial agreement or certified agreement. 2
`(7) After the federation is recognised, it may vary its composition by-- 3
(a) including, with the approval of the Commission, another 4
industrial organisation within the federation if the other industrial 5
organisation intends to become concerned in the amalgamation; 6
or 7
(b) releasing, with the approval of the Commission, an industrial 8
organisation from the federation. 9
`(8) The federation ceases to exist-- 10
(a) on the day on which the amalgamation takes effect; or 11
(b) if an application under section 13.63 is not filed in relation to the 12
amalgamation within the prescribed period--on the day after the 13
end of the period; or 14
(c) if it appears to a Full Bench, on an application by a prescribed 15
person, that the industrial conduct of the federation, or an 16
industrial organisation belonging to the federation, is preventing 17
or hindering the attainment of an object of this Act--on the day 18
the Full Bench so determines. 19
`(9) Nothing in this section limits the right of an industrial organisation 20
belonging to a federation to represent itself or its members. 21
of resources to support proposed amalgamation 22
`Use
`13.58(1) An existing industrial organisation concerned in a proposed 23
amalgamation may, at any time before the closing day of the ballot for the 24
amalgamation, use its financial and other resources in support of the 25
proposed principal amalgamation and any proposed alternative 26
amalgamation if-- 27
(a) the committee of management of the organisation has resolved 28
that the organisation should so use its resources; and 29
(b) the committee of management has given reasonable notice of its 30
resolution to the members of the organisation. 31
`(2) Subsection (1) does not limit any power that the existing industrial 32
45
Industrial Relations Amendment
organisation has, apart from that subsection, to use its financial and other 1
resources in support of, or otherwise in relation to, the amalgamation. 2
`Subdivision C--Commencement of amalgamation procedure 3
for amalgamation 4
`Scheme
`13.59(1) There is to be a scheme for every proposed amalgamation. 5
`(2) The scheme must contain the following matters-- 6
(a) a general statement of the nature of the amalgamation, identifying 7
the existing industrial organisations concerned and indicating-- 8
(i) if 1 of the existing industrial organisations is the proposed 9
amalgamated organisation--that fact; and 10
(ii) if an association proposed to be registered as an industrial 11
organisation is the proposed amalgamated 12
organisation--that fact and the name of the association; and 13
(iii) the proposed deregistering industrial organisations; 14
(b) if it is proposed to change the name of an existing industrial 15
organisation--particulars of the proposed change; 16
(c) if it is proposed to alter the eligibility rules of an existing 17
industrial organisation--particulars of the proposed alterations; 18
(d) if it is proposed to alter any other rules of an existing industrial 19
organisation--particulars of the proposed alterations; 20
(e) if an association is proposed to be registered as an industrial 21
organisation--the eligibility and other rules of the association; 22
(f) such other matters as are prescribed. 23
`(3) Subsection (2) does not limit the matters that the scheme may 24
contain. 25
scheme for amalgamation 26
`Alternative
`13.60(1) If 3 or more existing industrial organisations are concerned in a 27
proposed amalgamation, the scheme for the amalgamation may contain a 28
46
Industrial Relations Amendment
provision to the effect that, if-- 1
(a) the members of 1 or more of the organisations do not approve 2
the amalgamation; and 3
(b) the members of 2 or more of the organisations (the "approving 4
organisations") approve, in the alternative, the amalgamation so 5
far as it involves-- 6
(i) the other of the approving organisations; or 7
(ii) 2 or more of the other approving organisations; and 8
(c) if 1 of the existing organisations is the proposed amalgamated 9
organisation--that organisation is one of the approving 10
organisations; 11
there is to be an amalgamation involving the approving organisations. 12
`(2) If the scheme for a proposed amalgamation contains an alternative 13
provision, the scheme must also contain particulars of-- 14
(a) the differences between the proposed principal amalgamation and 15
each proposed alternative amalgamation; and 16
(b) the differences between the rules of any association proposed to 17
be registered as an industrial organisation, and any proposed 18
alterations of the rules of the existing industrial organisations, 19
under the proposed principal amalgamation and each proposed 20
alternative amalgamation. 21
by committee of management 22
`Approval
`13.61(1) The scheme for a proposed amalgamation, and each alteration 23
of the scheme, must be approved, by resolution, by the committee of 24
management of each existing industrial organisation concerned in the 25
amalgamation. 26
`(2) Despite anything in the rules of an existing industrial organisation, 27
approval, by resolution, by the committee of management of the scheme, or 28
an alteration of the scheme, is taken to be sufficient compliance with the 29
rules, and any proposed alteration of the rules contained in the scheme, or 30
the scheme as altered, is taken to have been properly made under the rules. 31
47
Industrial Relations Amendment
of interest declaration 1
`Community
`13.62(1) The existing industrial organisations concerned in a proposed 2
amalgamation may jointly file in the Industrial Registrar's Office an 3
application for a declaration under this section in relation to the 4
amalgamation. 5
`(2) The application must be filed-- 6
(a) before an application has been filed under section 13.63 in 7
relation to the amalgamation; or 8
(b) with the application that is filed under section 13.63 in relation to 9
the amalgamation. 10
`(3) If the application is filed before an application has been filed under 11
section 13.63 in relation to the amalgamation, the Commission-- 12
(a) must immediately fix a time and place for hearing submissions in 13
relation to the making of the declaration; and 14
(b) must ensure that all industrial organisations are promptly notified 15
of the time and place of the hearing; and 16
(c) may inform any other person who is likely to be interested of the 17
time and place of the hearing. 18
`(4) If, at the conclusion of the hearing arranged under subsection (3) or 19
section 13.71 in relation to the proposed amalgamation, the Commission is 20
satisfied that there is a community of interest between the existing industrial 21
organisations in relation to their industrial interests, the Commission must 22
declare that it is so satisfied. 23
`(5) The Commission must be satisfied, for the purposes of subsection 24
(4), that there is a community of interest between industrial organisations of 25
employees in relation to their industrial interests if the Commission is 26
satisfied that a substantial number of members of 1 of the organisations 27
are-- 28
(a) eligible to become members of the other organisation or each of 29
the other organisations; or 30
(b) engaged in the same work or in aspects of the same or similar 31
work as members of the other organisation or each of the other 32
organisations; or 33
48
Industrial Relations Amendment
(c) bound by the same awards, industrial agreements or certified 1
agreements as members of the other organisation or each of the 2
other organisations; or 3
(d) employed in the same or similar work by employers engaged in 4
the same industry as members of the other organisation or each 5
of the other organisations; or 6
(e) engaged in work, or in industries, in relation to which there is a 7
community of interest with members of the other organisation or 8
each of the other organisations. 9
`(6) The Commission must be satisfied, for the purposes of subsection 10
(4), that there is a community of interest between industrial organisations of 11
employers in relation to their industrial interests if the Commission is 12
satisfied that a substantial number of members of 1 of the organisations 13
are-- 14
(a) eligible to become members of the other organisation or each of 15
the other organisations; or 16
(b) engaged in the same industry or in aspects of the same industry 17
or similar industries as members of the other organisation or each 18
of the other organisations; or 19
(c) bound by the same awards as members of the other organisation 20
or each of the other organisations; or 21
(d) engaged in industries in relation to which there is a community of 22
interest with members of the other organisation or each of the 23
other organisations. 24
`(7) Subsections (5) and (6) do not limit the circumstances in which the 25
Commission may be satisfied, for the purposes of subsection (4), that there 26
is a community of interest between industrial organisations in relation to 27
their industrial interests. 28
`(8) If-- 29
(a) an application for a declaration under this section in relation to a 30
proposed amalgamation is filed before an application has been 31
filed under section 13.63 in relation to the amalgamation; and 32
(b) a declaration is made under this section in relation to the 33
amalgamation; and 34
49
Industrial Relations Amendment
(c) an application is not filed under section 13.63 in relation to the 1
amalgamation within 6 months after the declaration is made; 2
the declaration ceases to be in force. 3
`(9) The Commission may revoke a declaration under this section if the 4
Commission is satisfied that there is no longer a community of interest 5
between the industrial organisations concerned in relation to their industrial 6
interests. 7
for approval for submission of amalgamation to ballot 8
`Application
`13.63(1) The existing industrial organisations concerned in a proposed 9
amalgamation, and any association proposed to be registered as an 10
industrial organisation under the amalgamation, must jointly file in the 11
Industrial Registrar's Office an application for approval for the submission 12
of the amalgamation to ballot. 13
`(2) The application must be accompanied by-- 14
(a) a copy of the scheme for the amalgamation; and 15
(b) a written outline of the scheme. 16
`(3) Subject to section 13.73G, the outline must, in no more than 3 000 17
words, provide sufficient information on the scheme to enable members of 18
the existing industrial organisations to make informed decisions in relation 19
to the scheme. 20
office after amalgamation 21
`Holding
`13.64(1) The rules of-- 22
(a) an association proposed to be registered as an industrial 23
organisation that is the proposed amalgamated organisation under 24
a proposed amalgamation; or 25
(b) an existing industrial organisation that is the proposed 26
amalgamated organisation under a proposed amalgamation; 27
may, despite section 13.13, make provision in relation to-- 28
(c) the holding of office in the proposed amalgamated organisation 29
by persons holding office in any of the proposed deregistering 30
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Industrial Relations Amendment
organisations immediately before the amalgamation takes effect; 1
and 2
(d) in a case to which paragraph (b) applies--the continuation of the 3
holding of office by persons holding office in the proposed 4
amalgamated organisation immediately before the amalgamation 5
takes effect; 6
but the rules may not permit an office to be held under subsection (1)(c) or 7
(d) for longer than-- 8
(e) the period that equals the unexpired part of the term of the office 9
held by the person immediately before the day on which the 10
amalgamation takes effect; or 11
(f) the period that ends 2 years after that day; 12
whichever ends last, without an ordinary election being held in relation to 13
the office. 14
`(2) If-- 15
(a) a person holds an office in an industrial organisation under rules 16
made under subsection (1); and 17
(b) the organisation is involved in a proposed amalgamation; 18
the rules of the proposed amalgamated organisation must not permit the 19
person to hold an office in the proposed amalgamated organisation after the 20
amalgamation takes effect, without an ordinary election being held in 21
relation to the office, for longer than the period that equals the unexpired 22
part of the term of the office mentioned in paragraph (a) immediately before 23
the day on which the amalgamation takes effect. 24
`(3) The rules of an industrial organisation that is the proposed 25
amalgamated organisation under a proposed amalgamation must, subject to 26
this section, make reasonable provision for the purpose of synchronising 27
elections for offices in the organisation held under subsection (1)(c) with 28
elections for other offices in the organisation. 29
`(4) Section 13.15 does not apply to an office held under rules made 30
under subsection (1). 31
`(5) Section 13.16 applies to an office held under rules made under 32
subsection (1)(c). 33
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Industrial Relations Amendment
`(6) In this section-- 1
"ordinary election" means an election held under rules that comply with 2
section 13.13. 3
for exemption from ballot 4
`Application
`13.65(1) The proposed amalgamated organisation under a proposed 5
amalgamation may file in the Industrial Registrar's Office an application for 6
exemption from the requirement that a ballot of its members be held in 7
relation to the amalgamation. 8
`(2) The application must be filed with the application that is filed under 9
section 13.63 in relation to the amalgamation. 10
for ballot not conducted under section 13.73J 11
`Application
`13.66(1) An existing industrial organisation concerned in a proposed 12
amalgamation may file in the Industrial Registrar's Office an application for 13
approval of a proposal for the submission of the amalgamation to a ballot of 14
its members that is not conducted under section 13.73J. 15
`(2) The application must be filed with the application that is filed under 16
section 13.63 in relation to the amalgamation. 17
"yes" case 18
`Lodging
`13.67(1) Subject to section 13.73E, an existing industrial organisation 19
concerned in a proposed amalgamation may file a written statement of not 20
more than 2 000 words in support of the proposed principal amalgamation 21
and each proposed alternative amalgamation. 22
`(2) The statement must be filed with the application that is filed under 23
section 13.63 in relation to the amalgamation. 24
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Industrial Relations Amendment
D--Role of the Electoral Commission 1
`Subdivision
to be conducted by the Electoral Commission 2
`Ballots
`13.68 All ballots under this Division are to be conducted by the 3
Electoral Commission. 4
of Electoral Commission 5
`Notification
`13.69(1) If an application is filed under section 13.63 in relation to a 6
proposed amalgamation, the Industrial Registrar must immediately notify 7
the Electoral Commission of the application. 8
`(2) On being notified of the application, the Electoral Commission must 9
immediately take the action that it considers necessary or desirable to enable 10
it to conduct as quickly as possible any ballots that may be required in 11
relation to the amalgamation. 12
of industrial organisation to provide information for ballot 13
`Officer
etc. 14
`13.70 An electoral official who is authorised, in writing, by the Electoral 15
Commission for the purposes of a proposed amalgamation may, if it is 16
reasonably necessary for the purposes of any ballot that may be required or 17
is required in relation to the amalgamation, by written notice, require an 18
officer or employee of the industrial organisation concerned or a branch of 19
the industrial organisation concerned-- 20
(a) to give to the electoral official, within a reasonable period of not 21
less than 7 days, and in a reasonable way, specified in the notice, 22
any information within the knowledge or in the possession of the 23
person; and 24
(b) to produce or make available to the electoral official, at a 25
reasonable time and place specified in the notice, any 26
documents-- 27
(i) in the custody or under the control of the person; or 28
(ii) to which the person has access. 29
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Industrial Relations Amendment
`Subdivision E--Procedure for approval of amalgamation 1
hearing in relation to amalgamation etc. 2
`Fixing
`13.71 If an application is filed under section 13.63 in relation to a 3
proposed amalgamation, the Commission-- 4
(a) must immediately fix a time and place for hearing submissions in 5
relation to-- 6
(i) the granting of an approval for the submission of the 7
amalgamation to ballot; and 8
(ii) if an application for a declaration under section 13.62 was 9
filed with the application--the making of a declaration under 10
the section in relation to the amalgamation; and 11
(iii) if an application was filed under section 13.65 for exemption 12
from the requirement that a ballot be held in relation to the 13
amalgamation--the granting of the exemption; and 14
(iv) if an application was filed under section 13.66 for approval of 15
a proposal for the submission of the amalgamation to a 16
ballot that is not conducted under section 13.73J--the 17
granting of the approval; and 18
(b) must ensure that all industrial organisations are promptly notified 19
of the time and place of the hearing; and 20
(c) may inform any other person who is likely to be interested of the 21
time and place of the hearing. 22
at amalgamation hearings 23
`Submissions
`13.72(1) Submissions at a hearing arranged under section 13.62(3) or 24
13.71 may only be made under this section. 25
`(2) Submissions may be made by the applicants. 26
`(3) Submissions may be made by another person only with the leave of 27
the Commission and may be made by the person only in relation to a 28
prescribed matter. 29
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Industrial Relations Amendment
for submission to ballot of amalgamation not involving 1
`Approval
extension of eligibility rules etc. 2
`13.73(1) If, at the conclusion of the hearing arranged under section 3
13.71 in relation to a proposed amalgamation, the Commission is 4
satisfied-- 5
(a) that the amalgamation does not involve the registration of an 6
association as an industrial organisation; and 7
(b) that a person who is not eligible for membership of an existing 8
industrial organisation concerned in the amalgamation would not 9
be eligible for membership of the proposed amalgamated 10
organisation immediately after the amalgamation takes effect; and 11
(c) that any proposed alteration of the name of an existing industrial 12
organisation concerned in the amalgamation will not result in the 13
organisation having a name that-- 14
(i) is the same as the name of another industrial organisation or 15
an organisation within the meaning of the Commonwealth 16
Act; or 17
(ii) is so similar to the name of another industrial organisation or 18
an organisation within the meaning of the Commonwealth 19
Act as to be likely to cause confusion; 20
without the written permission of the other organisation; and 21
(d) that any proposed alterations of the rules of an existing industrial 22
organisation comply with, and are not contrary to, this Act and 23
awards, industrial agreements and certified agreements and are 24
not contrary to law; and 25
(e) that any proposed deregistration of an existing industrial 26
organisation complies with this Act and is not otherwise contrary 27
to law; 28
the Commission must approve the submission of the amalgamation to 29
ballot. 30
`(2) If the Commission is not satisfied, the Commission must, subject to 31
subsections (3) and (7), refuse to approve, under this section, the 32
submission of the amalgamation to ballot. 33
`(3) If, apart from this subsection, the Commission would be required to 34
55
Industrial Relations Amendment
refuse to approve the submission of the amalgamation to ballot, the 1
Commission may-- 2
(a) permit the applicants to alter the scheme for the amalgamation, 3
including any proposed alterations of the rules of the existing 4
industrial organisations concerned in the amalgamation; or 5
(b) accept an undertaking by the applicants to alter the scheme for the 6
amalgamation, including any proposed alterations of the rules of 7
the existing industrial organisations concerned in the 8
amalgamation; 9
and, if the Commission is satisfied that the matters mentioned in subsection 10
(1) will be met, the Commission must approve the submission of the 11
amalgamation to ballot. 12
`(4) A permission under subsection (3)(a)-- 13
(a) may, despite anything in the rules of an existing industrial 14
organisation concerned in the proposed amalgamation, authorise 15
the industrial organisation to alter the scheme (including any 16
proposed alterations of the rules of the industrial organisation) by 17
resolution of its committee of management; and 18
(b) may make provision in relation to the procedure that, despite 19
anything in those rules, may be followed, or is to be followed, by 20
the committee of management in that regard; and 21
(c) may be given subject to conditions. 22
`(5) If-- 23
(a) the Commission-- 24
(i) gives a permission under subsection (3)(a) subject to 25
conditions; or 26
(ii) accepts an undertaking under subsection (3)(b); and 27
(b) the conditions are breached or the undertaking is not fulfilled 28
within the period allowed by the Commission; 29
the Commission may-- 30
(c) amend the scheme for the amalgamation, including any proposed 31
alterations of the rules of the existing industrial organisations 32
concerned in the proposed amalgamation; or 33
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Industrial Relations Amendment
(d) give directions and orders-- 1
(i) in relation to the conduct of the ballot for the amalgamation; 2
or 3
(ii) otherwise in relation to the procedure to be followed in 4
relation to the amalgamation. 5
`(6) Subsection (5) does not limit the powers that the Commission has 6
apart from that subsection. 7
`(7) If, apart from this subsection, the Commission would be required to 8
refuse to approve the submission of the amalgamation to ballot, the 9
Commission may adjourn the proceeding. 10
`(8) Subsection (7) does not limit the power of the Commission to 11
adjourn the proceeding at any stage. 12
in relation to amalgamation involving extension of 13
`Objections
eligibility rules etc. 14
`13.73A(1) Objection to a matter involved in a proposed amalgamation 15
may only be made to the Commission under this section. 16
`(2) Objection may be made to a Full Bench in relation to the 17
amalgamation only if the Commission has refused to approve, under 18
section 13.73, the submission of the amalgamation to ballot. 19
`(3) Objection may be made by a prescribed person on a prescribed 20
ground. 21
`(4) The Commission is to hear, as prescribed, all objections properly 22
made to the amalgamation. 23
for submission to ballot of amalgamation involving 24
`Approval
extension of eligibility rules etc. 25
`13.73B(1) If, after the prescribed time allowed for making objections 26
under section 13.73A in relation to a proposed amalgamation and after 27
hearing any objections properly made to the amalgamation, the 28
Commission-- 29
(a) finds that no properly made objection is justified; and 30
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Industrial Relations Amendment
(b) is satisfied that, so far as the amalgamation involves-- 1
(i) the registration of an association; or 2
(ii) a change in the name of an industrial organisation; or 3
(iii) an alteration of the rules of an industrial organisation; or 4
(iv) the deregistration of an industrial organisation under this 5
Division; 6
it complies with, and is not contrary to, this Act and awards, 7
industrial agreements and certified agreements and is not 8
otherwise contrary to law; 9
the Commission must approve the submission of the amalgamation to 10
ballot. 11
`(2) If the Commission is not satisfied, the Commission must, subject to 12
subsections (3) and (8), refuse to approve, under this section, the 13
submission of the amalgamation to ballot. 14
`(3) If, apart from this subsection, the Commission would be required to 15
refuse to approve the submission of the amalgamation to ballot, the 16
Commission may-- 17
(a) permit the applicants to alter the scheme for the amalgamation, 18
including-- 19
(i) the rules of any association proposed to be registered as an 20
industrial organisation in relation to the amalgamation; or 21
(ii) any proposed alterations of the rules of the existing 22
industrial organisations concerned in the amalgamation; or 23
(b) accept an undertaking by the applicants to alter the scheme for the 24
amalgamation, including-- 25
(i) the rules of any association proposed to be registered as an 26
industrial organisation in relation to the amalgamation; or 27
(ii) any proposed alterations of the rules of the existing industrial 28
organisations concerned in the amalgamation; 29
and, if the Commission is satisfied that the matters mentioned in subsection 30
(1) will be met, the Commission must approve the submission of the 31
amalgamation to ballot. 32
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Industrial Relations Amendment
`(4) A permission under subsection (3)(a)(i)-- 1
(a) may, despite anything in the rules of any association proposed to 2
be registered as an industrial organisation in relation to the 3
proposed amalgamation, authorise the existing industrial 4
organisations concerned in the amalgamation to alter the scheme 5
so far as it affects that association (including any of its rules) by 6
resolution of their committees of management; and 7
(b) may make provision in relation to the procedure that, despite 8
anything in the rules of the existing industrial organisations or the 9
rules of the association, may be followed, or is to be followed, by 10
the committees of management in that regard; and 11
(c) may be given subject to conditions. 12
`(5) A permission under subsection (3)(a)(ii)-- 13
(a) may, despite anything in the rules of an existing industrial 14
organisation concerned in the proposed amalgamation, authorise 15
the industrial organisation to alter the scheme (including any 16
proposed alterations of the rules of the industrial organisation, but 17
not including the scheme so far as it affects any association 18
proposed to be registered as an industrial organisation in relation 19
to the proposed amalgamation) by resolution of its committee of 20
management; and 21
(b) may make provision in relation to the procedure that, despite 22
anything in those rules, may be followed, or is to be followed, by 23
the committee of management in that regard; and 24
(c) may be given subject to conditions. 25
`(6) If-- 26
(a) the Commission-- 27
(i) gives a permission under subsection (3)(a) subject to 28
conditions; or 29
(ii) accepts an undertaking under subsection (3)(b); and 30
(b) the conditions are breached or the undertaking is not fulfilled 31
within the period allowed by the Commission; 32
the Commission may-- 33
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Industrial Relations Amendment
(c) amend the scheme for the amalgamation, including-- 1
(i) the rules of any association proposed to be registered as an 2
industrial organisation in relation to the amalgamation; or 3
(ii) any proposed alterations of the rules of the existing industrial 4
organisations concerned in the amalgamation; or 5
(d) give directions and orders-- 6
(i) in relation to the conduct of the ballot for the amalgamation; 7
or 8
(ii) otherwise in relation to the procedure to be followed in relation 9
to the amalgamation. 10
`(7) Subsection (6) does not limit the powers that the Commission has 11
apart from that subsection. 12
`(8) If, apart from this subsection, the Commission would be required to 13
refuse to approve the submission of the amalgamation to ballot, the 14
Commission may adjourn the proceeding. 15
`(9) Subsection (8) does not limit the power of the Commission to 16
adjourn the proceeding at any stage. 17
commencing and closing days of ballot 18
`Fixing
`13.73C(1) If the Commission approves, under section 13.73 or 13.73B, 19
the submission of a proposed amalgamation to ballot, the Commission 20
must, after consulting with the Electoral Commissioner, fix a day as the 21
commencing day of the ballot and a day as the closing day of the ballot. 22
`(2) The commencing day must be a day not later than 28 days after the 23
day on which the approval is given unless-- 24
(a) the Commission is satisfied that the Electoral Commission 25
requires a longer period to make the arrangements necessary to 26
enable it to conduct the ballot; or 27
(b) the existing industrial organisations concerned in the 28
amalgamation request the Commission to fix a later day. 29
`(3) If the scheme for the amalgamation contains a proposed alternative 30
provision, a single day is to be fixed as the commencing day, and a single 31
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Industrial Relations Amendment
day is to be fixed as the closing day, for all ballots in relation to the 1
proposed amalgamation. 2
`(4) The Commission may, after consulting with the Electoral 3
Commissioner, vary the commencing day or the closing day. 4
`(5) Subsection (4) does not limit the powers of the person conducting a 5
ballot under this Division. 6
of voters for ballot 7
`Roll
`13.73D The roll of voters for a ballot for a proposed amalgamation is 8
the roll of persons who, on the day on which the Commission fixes the 9
commencing day and closing day of the ballot or 28 days before the 10
commencing day of the ballot (whichever is the later)-- 11
(a) have the right under the rules of the existing industrial 12
organisation concerned to vote at such a ballot; or 13
(b) if the rules of the existing industrial organisation concerned do 14
not then provide for the right to vote at such a ballot--have the 15
right under the rules of the organisation to vote at a ballot for an 16
election for an office in the organisation that is conducted by a 17
direct voting system. 18
"Yes" case and "no" case for amalgamation 19
`
`13.73E(1) If an existing industrial organisation concerned in a proposed 20
amalgamation files a statement under section 13.67 in relation to the 21
amalgamation, the Commission may permit the organisation to alter the 22
statement. 23
`(2) Not later than 7 days before the day fixed under section 13.71 for 24
hearing submissions in relation to the amalgamation, members of the 25
industrial organisation (whose number is at least the required minimum 26
number) may file in the Industrial Registrar's Office a written statement of 27
not more than 2 000 words in opposition to the proposed principal 28
amalgamation and any proposed alternative amalgamation. 29
`(3) The Commission may permit a statement filed under subsection (2) 30
to be altered. 31
`(4) Subject to subsections (5), (6) and (7), a copy of the statements 32
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Industrial Relations Amendment
mentioned in subsections (1) and (2), or, if the statements have been altered 1
or amended, the statements as altered or amended, must accompany the 2
ballot paper sent to the persons entitled to vote at a ballot for the 3
amalgamation. 4
`(5) If 2 or more statements in opposition to the amalgamation are 5
properly filed in the Industrial Registrar's Office under subsection (2)-- 6
(a) the Commission must prepare, or cause to be prepared, in 7
consultation, if practicable, with representatives of the persons 8
who filed each of the statements, a written statement of not more 9
than 2 000 words in opposition to the amalgamation based on 10
both or all the statements and, as far as practicable, presenting 11
fairly the substance of the arguments against the amalgamation 12
contained in both or all the statements; and 13
(b) the statement prepared by the Commission must accompany the 14
ballot paper for the amalgamation as if it had been the sole 15
statement filed under subsection (2). 16
`(6) The Commission may amend a statement mentioned in subsection 17
(1) or (2) to correct factual errors or to ensure that the statement complies 18
with this Act. 19
`(7) A statement mentioned in subsection (1) or (2) may, if the 20
Commission approves, include matter that is not in the form of words, 21
including, for example, diagrams, drawings, illustrations, photographs and 22
symbols. 23
`(8) A statement prepared under subsection (5) may include matter that is 24
not in the form of words, including, for example, diagrams, drawings, 25
illustrations, photographs and symbols. 26
`(9) Subsections (4) and (5)(b) do not apply to a ballot that is not 27
conducted under section 13.73J. 28
`(10) In this section-- 29
"required minimum number", in relation to an industrial organisation, 30
means-- 31
(a) 5% of the total number of members of the industrial organisation 32
on the day on which the application was filed under section 13.63 33
in relation to the proposed amalgamation concerned; or 34
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Industrial Relations Amendment
(b) 1 000; 1
whichever is the lesser. 2
and amendment of scheme 3
`Alteration
`13.73F(1) The Commission may, at any time before the commencing 4
day of the ballot for a proposed amalgamation, permit the existing industrial 5
organisations concerned in the amalgamation to alter the scheme for the 6
amalgamation, including-- 7
(a) the rules of any association proposed to be registered as an 8
industrial organisation in relation to the amalgamation; or 9
(b) any proposed alterations of the rules of the existing industrial 10
organisations concerned in the amalgamation. 11
`(2) A permission under subsection (1)(a)-- 12
(a) may, despite anything in the rules of any association proposed to 13
be registered as an industrial organisation in relation to the 14
proposed amalgamation, authorise the existing industrial 15
organisations concerned in the amalgamation to alter the scheme 16
so far as it affects that association (including any of its rules) by 17
resolution of their committees of management; and 18
(b) may make provision in relation to the procedure that, despite 19
anything in the rules of the existing industrial organisations or the 20
rules of the association, may be followed, or is to be followed, by 21
the committees of management in that regard; and 22
(c) may be given subject to conditions. 23
`(3) A permission under subsection (1)(b)-- 24
(a) may, despite anything in the rules of an existing industrial 25
organisation concerned in a proposed amalgamation, authorise 26
the industrial organisation to amend the scheme (including any 27
proposed alterations of the rules of the industrial organisation, but 28
not including the scheme so far as it affects any association 29
proposed to be registered as an industrial organisation in relation 30
to the proposed amalgamation) by resolution of its committee of 31
management; and 32
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Industrial Relations Amendment
(b) may make provision in relation to the procedure that, despite 1
anything in those rules, may be followed, or is to be followed, by 2
the committee of management in that regard; and 3
(c) may be given subject to conditions. 4
`(4) If-- 5
(a) the Commission gives a permission under subsection (1) subject 6
to conditions; and 7
(b) the conditions are breached; 8
the Commission may-- 9
(c) amend the scheme for the amalgamation, including-- 10
(i) the rules of any association proposed to be registered as an 11
industrial organisation in relation to the amalgamation; or 12
(ii) any proposed alterations of the rules of the existing industrial 13
organisations concerned in the amalgamation; or 14
(d) give directions and orders-- 15
(i) in relation to the conduct of the ballot for the amalgamation; 16
or 17
(ii) otherwise in relation to the procedure to be followed in relation 18
to the amalgamation. 19
`(5) Subsection (4) does not limit the powers that the Commission has 20
apart from that subsection. 21
`(6) If the scheme for the amalgamation is altered or amended (whether 22
under this section or otherwise), the outline of the scheme must be altered 23
or amended to the extent necessary to reflect the alterations or amendments. 24
of scheme for amalgamation 25
`Outline
`13.73G(1) The outline of the scheme for a proposed amalgamation 26
may, if the Commission approves, consist of more than 3 000 words. 27
`(2) The outline may, if the Commission approves, include matter that is 28
not in the form of words, including, for example, diagrams, drawings, 29
illustrations, photographs and symbols. 30
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Industrial Relations Amendment
`(3) The Commission-- 1
(a) may, at any time before the commencing day of the ballot for the 2
amalgamation, permit the existing industrial organisations 3
concerned in the amalgamation to alter the outline; and 4
(b) may amend the outline to correct factual errors or otherwise to 5
ensure that it complies with this Act. 6
from ballot 7
`Exemption
`13.73H(1) If-- 8
(a) an application was filed under section 13.65 for exemption from 9
the requirement that a ballot be held in relation to a proposed 10
amalgamation; and 11
(b) the total number of members that could be admitted to 12
membership of the proposed amalgamated organisation on, and 13
because of, the amalgamation does not exceed 25% of the 14
number of members of the applicant industrial organisation on 15
the day on which the application was filed; 16
the Commission must, at the conclusion of the hearing arranged under 17
section 13.71 in relation to the amalgamation, grant the exemption unless 18
the Commission considers that, in the special circumstances of the case, the 19
exemption should be refused. 20
`(2) If the exemption is granted, the members of the applicant industrial 21
organisation are taken to have approved the proposed principal 22
amalgamation and each proposed alternative amalgamation (if any). 23
for ballot not conducted under section 13.73J 24
`Approval
`13.73I If-- 25
(a) an application was filed under section 13.66 for approval of a 26
proposal for submission of a proposed amalgamation to ballot 27
that is not conducted under section 13.73J; and 28
(b) the proposal provides for-- 29
(i) the ballot to be by secret ballot of the members of the 30
industrial organisation; and 31
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Industrial Relations Amendment
(ii) the ballot to be held at duly constituted meetings of the 1
members; and 2
(iii) the ballot to be conducted by the Electoral Commission; and 3
(iv) the members to be given at least 21 days' notice of the 4
meetings, the matters to be considered at the meetings and 5
their entitlement to an absent vote; and 6
(v) the distribution or publication of-- 7
(A) the outline of the scheme for the amalgamation; and 8
(B) the statements mentioned in section 13.73E(1) and 9
section 13.73E(2) or (5); and 10
(vi) absent voting; and 11
(vii) the ballot to be otherwise conducted in accordance with the 12
regulations; and 13
(c) the Commission is satisfied, after consulting with the Electoral 14
Commissioner-- 15
(i) that the proposal is practicable; and 16
(ii) that approval of the proposal is likely-- 17
(A) to result in participation by members of the industrial 18
organisation that is fuller than the participation that 19
would have been likely to have resulted if the ballot 20
were conducted under section 13.73J; and 21
(B) to give the members of the industrial organisation an 22
adequate opportunity to vote on the amalgamation 23
without intimidation; 24
the Commission must, at the conclusion of the hearing arranged under 25
section 13.71 in relation to the amalgamation, approve the proposal. 26
postal ballot of members 27
`Secret
`13.73J(1) If the Commission approves, under section 13.73 or 13.73B, 28
the submission of a proposed amalgamation to ballot, the Electoral 29
Commission must, in relation to each of the existing industrial 30
organisations concerned in the amalgamation, conduct a secret postal ballot 31
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Industrial Relations Amendment
of the members of the industrial organisation on the question whether they 1
approve the proposed principal amalgamation. 2
`(2) If the scheme for the amalgamation contains a proposed alternative 3
provision, the Electoral Commission must also conduct, at the same time 4
and in the same way as the ballot under subsection (1), a ballot of the 5
members of each of the existing industrial organisations on the question or 6
questions whether, if the proposed principal amalgamation does not take 7
place, they approve the proposed alternative amalgamation or each proposed 8
alternative amalgamation. 9
`(3) If, under subsection (2), the Electoral Commission is required to 10
conduct 2 or more ballots of the members of an industrial organisation at 11
the same time, the same ballot paper is to be used for both or all the ballots. 12
`(4) A person conducting a ballot under subsection (2) need not count the 13
votes in the ballot if the person is satisfied that the result of the ballot will 14
not be required to be known for the purposes of this Act. 15
`(5) A copy of the outline of the scheme for the amalgamation as filed 16
under this Division, or, if the scheme has been altered or amended, a copy 17
of the outline of the scheme as altered or amended, is to accompany the 18
ballot paper sent to a person entitled to vote at the ballot. 19
`(6) Subject to this section, a ballot conducted under this section is to be 20
conducted as prescribed. 21
`(7) This section does not apply to an existing industrial organisation 22
concerned in the amalgamation if-- 23
(a) the Commission has granted the industrial organisation an 24
exemption under section 13.73H from the requirement that a 25
ballot be held in relation to the proposed amalgamation; or 26
(b) the Commission has approved under section 13.73I a proposal 27
by the industrial organisation for the submission of the 28
amalgamation to a ballot that is not conducted under this section. 29
of approval of amalgamation by members 30
`Determination
`13.73K If the question of a proposed amalgamation is submitted to a 31
ballot of the members of an existing industrial organisation concerned in the 32
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Industrial Relations Amendment
amalgamation, the members of the industrial organisation approve the 1
amalgamation if, and only if-- 2
(a) if a declaration under section 13.62 is in force in relation to the 3
proposed amalgamation--more than 50% of the formal votes 4
cast in the ballot are in favour of the amalgamation; or 5
(b) in any other case-- 6
(i) at least 25% of the members on the roll of voters cast a vote 7
in the ballot; and 8
(ii) more than 50% of the formal votes cast are in favour of the 9
amalgamation. 10
ballot if amalgamation not approved 11
`Further
`13.73L(1) If-- 12
(a) the question of a proposed amalgamation is submitted to a ballot 13
of the members of an existing industrial organisation; and 14
(b) the members of the industrial organisation do not approve the 15
amalgamation; 16
the existing industrial organisations concerned in the amalgamation may 17
jointly file in the Industrial Registrar's Office a further application under 18
section 13.63 for approval for the submission of the amalgamation to ballot. 19
`(2) If the application is filed within 1 year after the result of the ballot is 20
declared, the Commission may order-- 21
(a) that any step in the procedure provided by this Division be 22
dispensed with in relation to the proposed amalgamation; or 23
(b) that a fresh ballot be conducted in place of an earlier ballot in the 24
amalgamation; 25
and the Commission may give such directions and make such further 26
orders as it considers necessary or desirable. 27
`(3) Subsection (2) does not by implication require a further application 28
under section 13.63 to be filed within the 1 year period mentioned in that 29
subsection. 30
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Industrial Relations Amendment
into irregularities 1
`Inquiries
`13.73M(1) Not later than 30 days after the result of a ballot under this 2
Division is declared, application may be made to the Commission, as 3
prescribed, for an inquiry by the Commission into alleged irregularities in 4
relation to the ballot. 5
`(2) If the Commission finds that there has been an irregularity that may 6
affect, or may have affected, the result of the ballot, the Commission may-- 7
(a) if the ballot has not been completed--order that a step in relation 8
to the ballot be taken again; or 9
(b) in any other case--order that a fresh ballot be conducted in place 10
of the ballot in which the irregularity happened; 11
and may make such further orders as it considers necessary or desirable. 12
`(3) A regulation may make provision with respect to the procedure for 13
inquiries by the Commission into alleged irregularities in relation to ballots 14
under this Division, and for matters relating to, or arising out of, inquiries. 15
of amalgamation 16
`Approval
`13.73N(1) If the members of each of the existing industrial 17
organisations concerned in a proposed amalgamation approve the proposed 18
principal amalgamation, the proposed principal amalgamation is approved 19
for the purposes of this Division. 20
`(2) If-- 21
(a) the scheme for a proposed amalgamation contains an alternative 22
provision; and 23
(b) the members of 1 or more of the existing industrial organisations 24
concerned in the amalgamation do not approve the proposed 25
principal amalgamation; and 26
(c) the members of 2 or more of the industrial organisations (the 27
"approving organisations") approve a proposed alternative 28
amalgamation; and 29
(d) if 1 of the existing industrial organisations is the proposed 30
amalgamated organisation--that organisation is one of the 31
approving organisations; 32
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Industrial Relations Amendment
the proposed alternative amalgamation is approved for the purposes of this 1
Division. 2
of ballot 3
`Expenses
`13.73O The expenses of a ballot conducted by the Electoral 4
Commission under this Division are payable by the State. 5
F--Amalgamation taking effect 6
`Subdivision
to be taken after ballot 7
`Action
`13.73P(1) The scheme of a proposed amalgamation that is approved for 8
the purposes of this Division takes effect in accordance with this section. 9
`(2) If the Commission is satisfied-- 10
(a) that the period, or the latest of the periods, within which 11
application may be made to the Court under section 13.73M in 12
relation to the amalgamation has ended; and 13
(b) that any application to the Court under section 13.73M has been 14
disposed of, and the result of any fresh ballot ordered by the 15
Court has been declared; and 16
(c) that there are no proceedings (other than civil proceedings) 17
pending against any of the existing industrial organisations 18
concerned in the amalgamation in relation to-- 19
(i) contraventions of this Act or another law; or 20
(ii) breaches of-- 21
(A) awards, industrial agreements or certified agreements; 22
or 23
(B) orders made under this or another Act; 24
the Commission must, after consultation with the existing industrial 25
organisations, by notice published as prescribed, fix a day as the day on 26
which the amalgamation is to take effect. 27
`(3) On the amalgamation day-- 28
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Industrial Relations Amendment
(a) if the proposed amalgamated organisation is not already 1
registered, the Industrial Registrar must enter, in the register kept 2
under section 6.3(1)(b), the prescribed particulars in relation to 3
the organisation, and the date of the entry; and 4
(b) any proposed alteration of the rules of an existing industrial 5
organisation concerned in the amalgamation takes effect; and 6
(c) the Commission must deregister the proposed deregistering 7
industrial organisations; and 8
(d) the persons who, immediately before that day, were members of 9
a proposed deregistering industrial organisation become, by force 10
of this section and without payment of entrance fee, members of 11
the proposed amalgamated organisation. 12
and liabilities of deregistered industrial organisation become 13
`Assets
assets and liabilities of amalgamated organisation 14
`13.73Q(1) On the amalgamation day, all assets and liabilities of a 15
deregistered industrial organisation cease to be assets and liabilities of that 16
organisation and become assets and liabilities of the amalgamated 17
organisation. 18
`(2) For all purposes and in all proceedings, an asset or liability of a 19
deregistered organisation existing immediately before the amalgamation day 20
is taken to have become an asset or liability of the amalgamated 21
organisation on that day. 22
of amalgamation on existing decisions of Commission 23
`Effect
`13.73R On and from the amalgamation day-- 24
(a) a decision of the Commission that was, immediately before that 25
day, binding on a proposed deregistering industrial organisation 26
and its members becomes, by force of this section, binding on 27
the proposed amalgamated organisation and its members; and 28
(b) the decision has effect for all purposes (including the obligations 29
of employers and industrial organisations of employers) as if 30
references in the decision to a deregistered organisation included 31
references to the amalgamated organisation. 32
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Industrial Relations Amendment
Instruments 1
`
`13.73S(1) On and after the amalgamation day, an instrument to which 2
this Division applies continues, subject to subsection (2), in full force and 3
effect. 4
`(2) The instrument has effect, in relation to acts, omissions, transactions 5
and matters done, entered into or happening on or after that day as if a 6
reference in the instrument to a deregistered organisation were a reference to 7
the amalgamated organisation. 8
proceedings 9
`Pending
`13.73T If, immediately before the amalgamation day, a proceeding to 10
which this Division applies was pending in a court or before the 11
Commission-- 12
(a) the amalgamated organisation is, on that day, substituted for each 13
deregistered organisation as a party; and 14
(b) the proceeding is to continue as if the amalgamated industrial 15
organisation were, and had always been, the deregistered 16
organisation. 17
applies despite laws and agreements prohibiting transfer 18
`Subdivision
etc. 19
`13.73U(1) This Subdivision applies, and must be given effect to, despite 20
anything in-- 21
(a) any other Act; or 22
(b) any contract, deed, undertaking, agreement or other instrument. 23
`(2) Nothing done by this Subdivision, and nothing done by a person 24
because of, or for a purpose connected with or arising out of this 25
Subdivision-- 26
(a) is to be regarded as-- 27
(i) placing an industrial organisation or other person in breach 28
of contract or confidence; or 29
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Industrial Relations Amendment
(ii) otherwise making an industrial organisation or other person 1
guilty of a civil wrong; or 2
(b) is to be regarded as placing an industrial organisation or other 3
person in breach of-- 4
(i) any Act; or 5
(ii) any contractual provision prohibiting, restricting or 6
regulating the assignment or transfer of any asset or liability 7
or the disclosure of any information; or 8
(c) is taken to release any surety, wholly or in part, from all or any of 9
the surety's obligations. 10
`(3) Without limiting subsection (1), if, but for this section, the consent 11
of a person would be necessary in order to give effect to this Subdivision in 12
a particular respect, the consent is taken to have been given. 13
organisation to take steps necessary to carry out 14
`Amalgamated
amalgamation 15
`13.73V(1) The amalgamated organisation must take such steps as are 16
necessary to ensure that the amalgamation, and the operation of this 17
Subdivision in relation to the amalgamation, are fully effective. 18
`(2) The Commission may, on the application of an interested person, 19
make such orders as it considers appropriate to ensure that subsection (1) is 20
given effect to. 21
in relation to land and interests in land 22
`Certificates
`13.73W(1) If land or an interest in land becomes, under this 23
Subdivision, land or an interest in land of the amalgamated organisation, a 24
certificate that-- 25
(a) is signed by an authorised person; and 26
(b) identifies the land or interest, whether by reference to a map or 27
otherwise; and 28
(c) states that the land or interest has, under this Subdivision, become 29
land or an interest in land of the amalgamated organisation; 30
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Industrial Relations Amendment
is evidence that the land or interest is an asset of the amalgamated 1
organisation. 2
`(2) If the certificate is filed with the Registrar of Titles, the registrar 3
must-- 4
(a) register the matter in the same way as dealings in land or interests 5
in land of that kind are registered; and 6
(b) deal with, and give effect to, the certificate; 7
as if it were a grant, conveyance, memorandum or instrument of transfer of 8
the land (including all rights, title and interest in the land) or the interest in 9
the land, as the case may be, to the amalgamated organisation that had been 10
properly executed under the law of the State. 11
`(3) If the certificate is filed with the person or authority who has, under 12
the law of another State or a Territory, responsibility for keeping a register 13
dealing with land registration, the person or authority may, if the person or 14
authority is permitted by law to do so-- 15
(a) register the matter in the same way as dealings in land or interests 16
in land of that kind are registered; and 17
(b) deal with, and give effect to, the certificate; 18
as if it were a grant, conveyance, memorandum or instrument of transfer of 19
the land (including all rights, title and interest in the land) or the interest in 20
the land, as the case may be, to the amalgamated organisation that had been 21
properly executed under the law of the State or Territory. 22
in relation to charges 23
`Certificates
`13.73X(1) If the amalgamated organisation under an amalgamation 24
becomes, under this Subdivision, the holder of a charge, a certificate that-- 25
(a) is signed by an authorised person; and 26
(b) identifies the charge; and 27
(c) states that the amalgamated organisation has, under this 28
Subdivision, become the holder of the charge; 29
is evidence that the charge is an asset of the amalgamated organisation. 30
`(2) If the certificate is filed with the Australian Securities Commission, 31
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Industrial Relations Amendment
the Commission may, if it is permitted by law to do so-- 1
(a) register the matter in the same way as assignments of charges are 2
registered; and 3
(b) deal with, and give effect to, the certificate; 4
as if it were a notice of assignment of the charge that had been properly filed 5
with that Commission. 6
in relation to shares etc. 7
`Certificates
`13.73Y(1) If the amalgamated organisation becomes, under this 8
Subdivision, the holder of a share, debenture or interest in a company, a 9
certificate that-- 10
(a) is signed by an authorised person; and 11
(b) identifies the share, debenture or interest; and 12
(c) states that the amalgamated organisation has become, under this 13
Subdivision, the holder of the share, debenture or interest; 14
is evidence that the share, debenture or interest is an asset of the 15
amalgamated organisation. 16
`(2) If the certificate is delivered to the company, the company may-- 17
(a) register the matter in the same way as transfers of shares, 18
debentures or interests, as the case may be, in the company are 19
registered; and 20
(b) complete all the appropriate certificates, debentures or other 21
documents in relation to the matter; and 22
(c) deliver the completed certificates, debentures or other documents 23
to the amalgamated organisation; 24
as if the certificate were a proper instrument of transfer. 25
in relation to other assets 26
`Certificates
`13.73Z(1) If an asset (other than an asset to which section 13.73W, 27
13.73X or 13.73Y applies) becomes, under this Subdivision, an asset of the 28
amalgamated organisation, a certificate that-- 29
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Industrial Relations Amendment
(a) is signed by an authorised person; and 1
(b) identifies the asset; and 2
(c) states that the asset has, under this Subdivision, become an asset 3
of the amalgamated organisation; 4
is evidence that the asset is an asset of the amalgamated organisation. 5
`(2) If the certificate is given to the person or authority who has, under a 6
law of the State, responsibility for keeping a register in relation to assets of 7
that kind, the person or authority must-- 8
(a) register the matter in the same way as transactions in relation to 9
assets of that kind are registered; and 10
(b) deal with, and give effect to, the certificate; 11
as if the certificate were a proper and appropriate instrument for transactions 12
in relation to assets of that kind. 13
`(3) If the certificate is given to the person or authority who has, under a 14
law of another State, a Territory or the Commonwealth, responsibility for 15
keeping a register in relation to assets of that kind, the person or authority 16
may, if the person or authority is permitted by law to do so-- 17
(a) register the matter in the same way as transactions in relation to 18
assets of that kind are registered; and 19
(b) deal with, and give effect to, the certificate; 20
as if the certificate were a proper and appropriate instrument for transactions 21
in relation to assets of that kind. 22
23
may resolve difficulties 24
`Commission
`13.73ZA(1) If any difficulty arises in relation to the application of this 25
Subdivision to a particular matter, the Commission may, on the application 26
of an interested person, make such order as it considers proper to resolve 27
the difficulty. 28
`(2) An order made under subsection (1) has effect despite anything 29
contained in this Act or another Act. 30
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Industrial Relations Amendment
`Subdivision G--Validation 1
of certain acts done in good faith 2
`Validation
`13.73ZB(1) Subject to this section and to section 13.73ZD, an act done 3
in good faith for the purposes of a proposed or completed amalgamation 4
by-- 5
(a) an industrial organisation or association concerned in the 6
amalgamation; or 7
(b) the committee of management of such an organisation or 8
association; or 9
(c) an officer of such an organisation or association; 10
is valid despite any invalidity that may later be discovered in or in 11
connection with the act. 12
`(2) For the purposes of this section-- 13
(a) an act is treated as done in good faith until the contrary is proved; 14
and 15
(b) a person who has purported to be a member of the committee of 16
management, or an officer, is to be treated as having done so in 17
good faith until the contrary is proved; and 18
(c) an invalidity in the making or altering of the scheme for the 19
amalgamation is not to be treated as discovered before the earliest 20
time proved to be a time when the existence of the invalidity was 21
known to a majority of members of the committee of 22
management or to a majority of the persons purporting to act as 23
the committee of management; and 24
(d) knowledge of facts from which an invalidity arises is not of itself 25
treated as knowledge that the invalidity exists. 26
`(3) This section applies-- 27
(a) to an act whenever done (including an act done before the 28
commencement of this section); and 29
(b) to an act done to or by an association before it became an 30
industrial organisation. 31
77
Industrial Relations Amendment
`(4) Nothing in this section affects-- 1
(a) the operation of an order of the Court or the Commission made 2
before the commencement of this section; or 3
(b) the operation of section 13.17, 13.47, 13.48, 13.49, 13.50, 4
13.73M, 13.73V or 13.73ZA. 5
of certain acts after 4 years 6
`Validation
`13.73ZC(1) Subject to subsection (2) and section 13.73ZD, after the 7
end of 4 years from the day an act is done for the purposes of a proposed or 8
completed amalgamation by-- 9
(a) an industrial organisation or association concerned in the 10
amalgamation; or 11
(b) the committee of management of such an organisation or 12
association; or 13
(c) an officer of such an organisation or association; 14
the act is taken to have complied with this Division and the rules of the 15
industrial organisation or association. 16
`(2) The operation of this section does not affect the validity or operation 17
of an order, judgment, decree, declaration, direction, verdict, sentence, 18
decision or similar act of the Court, any other court or the Commission 19
made before the end of that 4 years. 20
`(3) This section applies-- 21
(a) to an act whenever done (including an act done before the 22
commencement of this section); or 23
(b) to an act done to or by an association before it became an 24
industrial organisation. 25
affecting application of section 13.73ZB or 13.73ZC 26
`Orders
`13.73ZD(1) If, on an application for an order under this section, the 27
Commission is satisfied that the application of section 13.73ZB or 13.73ZC 28
(the "relevant section") in relation to an act would do substantial injustice, 29
having regard to the interests of-- 30
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Industrial Relations Amendment
(a) the industrial organisation or association concerned; or 1
(b) members or creditors of the industrial organisation or association 2
concerned; or 3
(c) persons having dealings with the industrial organisation or 4
association concerned; 5
the Commission must, by order, declare accordingly. 6
`(2) If the declaration is made, the relevant section does not apply, and is 7
taken never to have applied, in relation to the act specified in the declaration. 8
`(3) The Commission may make an order under subsection (l) on the 9
application of the industrial organisation or association concerned, a 10
member of the industrial organisation or association concerned or any other 11
person having a sufficient interest in relation to the industrial organisation or 12
association concerned. 13
may make orders in relation to consequences of 14
`Commission
invalidity 15
`13.73ZE(1) An industrial organisation or association, a member of an 16
industrial organisation or association or any other person having a sufficient 17
interest in relation to an industrial organisation or association may apply to 18
the Commission for a determination of the question whether an invalidity 19
has happened in a proposed or completed amalgamation concerning 20
the industrial organisation or association. 21
`(2) On an application under subsection (1), the Commission may make 22
such declaration as it considers proper. 23
`(3) If, in a proceeding under subsection (l), the Commission finds that 24
an invalidity of the kind mentioned in that subsection has happened, the 25
Commission may make such orders as it considers appropriate-- 26
(a) to rectify the invalidity or cause it to be rectified; or 27
(b) to negative, modify or cause to be modified the consequences in 28
law of the invalidity; or 29
(c) to validate any act, matter or thing that is made invalid by or 30
because of the invalidity. 31
`(4) If an order is made under subsection (3), the Commission may give 32
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Industrial Relations Amendment
such ancillary or consequential directions as it considers appropriate. 1
`(5) The Commission must not make an order under subsection (3) 2
without satisfying itself that such an order would not do substantial injustice 3
to-- 4
(a) the industrial organisation or association concerned; or 5
(b) any member or creditor of the industrial organisation or 6
association concerned; or 7
(c) any person having dealings with the industrial organisation or 8
association concerned. 9
`(6) This section applies-- 10
(a) to an invalidity whenever happening (including an invalidity that 11
happened before the commencement of this section); and 12
(b) to an invalidity happening in relation to an association before it 13
became an industrial organisation. 14
H--Miscellaneous 15
`Subdivision
papers etc. from ballots to be preserved 16
`Ballot
`13.73ZF If a ballot for a proposed amalgamation is held under this 17
Division, the Electoral Commission must take such steps as are necessary 18
to ensure that all ballot papers, envelopes and records relevant to the ballot 19
are preserved and kept by the Electoral Commission for a period of 1 year 20
after the ballot. 21
action for defamation in certain cases 22
`No
`13.73ZG(1) A proceeding (whether civil or criminal) for defamation 23
does not lie against-- 24
(a) the State; or 25
(b) an electoral official; or 26
(c) a person acting at the request or direction of an electoral official; 27
in relation to the printing or publication of a document by the official or 28
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Industrial Relations Amendment
person in the course of the conduct of a proposed amalgamation under this 1
Division. 2
`(2) In this section-- 3
"document" means a document or a copy of a document authorised by, or 4
on behalf of, an industrial organisation or association that is seeking 5
amalgamation.'. 6
of s.13.87 (Auditors of industrial organisations) 7
Amendment
Section 13.87(1)-- 8
Clause25.
omit, insert-- 9
`13.87(1) In this section-- 10
"competent person" means, for the purpose of an audit and audit report-- 11
(a) in relation to an industrial organisation whose financial year 12
income is more than $10 000--a person-- 13
(i) who is a registered company auditor; and 14
(ii) who is not an officer or a member of the industrial 15
organisation; and 16
(iii) who is not employed for the purposes of the industrial 17
organisation in any capacity other than that of auditor; or 18
(b) in relation to any other industrial organisation--a person-- 19
(i) who is-- 20
(A) a registered company auditor; or 21
(B) certified by the Industrial Registrar as having had 22
sufficient experience in keeping or auditing accounts; 23
and 24
(ii) who is not an officer or a member of the industrial 25
organisation; 26
"financial year income" of an industrial organisation, for the purpose of 27
deciding who is a competent person to perform an audit and prepare an 28
audit report, means the industrial organisation's income for the 29
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Industrial Relations Amendment
financial year immediately before the financial year for which the audit 1
is to be carried out.'. 2
of s.14.1 (Appointment of Industrial Inspectors) 3
Amendment
Clause26. Section 14.1 (at the end)-- 4
insert-- 5
`(5) The Minister and the Minister responsible for the Commonwealth 6
Act may enter into arrangements under which a person appointed as an 7
inspector under the Commonwealth Act may be appointed as an inspector 8
for the purposes of this Act. 9
`(6) A person appointed as an inspector under arrangements mentioned 10
in subsection (5) may be appointed by the Minister.'. 11
of s.14.11 (Payment of employee's wages etc. to 12
Amendment
Industrial Inspector) 13
Clause27. Section 14.11 (at the end)-- 14
insert-- 15
`(4) A court that hears and determines a complaint against an employer 16
for an offence against subsection (2)(a)-- 17
(a) apart from any penalty order that it may make; and 18
(b) whether or not it convicts the employer; 19
may order the employer to pay to the employee to whose wages the 20
complaint relates the amount the court finds, on the balance of probabilities, 21
to be due and payable to the employee, or on account of the employee, as 22
the case may be. 23
`(5) A court that convicts an employer of an offence against subsection 24
(2)(b) may make in relation to the employer any order that an Industrial 25
Magistrate is authorised by section 5.4 to make on an application made 26
under the section. 27
`(6) If an order is made under subsection (5), the provisions of section 28
5.4 apply to the order in the same way they apply in relation to an order 29
made under section 5.4.'. 30
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Industrial Relations Amendment
of s.14.12 (Industrial Inspector's obligation for moneys 1
Amendment
paid on demand) 2
Section 14.12(6)-- 3
Clause28.
omit, insert-- 4
`(6) If, at the end of 30 days after receiving moneys that are-- 5
(a) mentioned in subsection (3)(a); and 6
(b) required to be accounted for under subsection (5); 7
the Industrial Inspector has not accounted for the moneys under subsection 8
(5), the Industrial Inspector must pay the moneys to the department. 9
`(7) Subject to subsection (8), the department must account for moneys 10
given to it by an Industrial Inspector under subsection (6) in the way 11
specified for the inspector under subsection (5). 12
`(8) If-- 13
(a) moneys are paid to the department under subsection (6); and 14
(b) the employee in relation to whom the moneys are to be paid-- 15
(i) cannot be located after all reasonable inquiries; or 16
(ii) fails to nominate a superannuation scheme or fund for the 17
purpose of subsection (3); 18
the department is to pay the moneys into the Unclaimed Moneys Fund in 19
the Treasury.'. 20
of s.15.19 (Certifying Barrister) 21
Amendment
Clause29. Section 15.19 (at the end)-- 22
insert-- 23
`(2) A Certifying Barrister is to be paid the fees that the Minister 24
determines.'. 25
of s.17.16 (Payment of wages) 26
Amendment
Clause30. After section 17.16(4)-- 27
insert-- 28
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Industrial Relations Amendment
`(4A) If-- 1
(a) wages are payable to an employee in cash; and 2
(b) the amount is not a multiple of 5 cents; 3
the amount may be rounded to the nearest amount that is a multiple of 5 4
cents, even if this involves a reduction.'. 5
of s.17.20 (Recovery of wages etc.) 6
Amendment
Section 17.20(1)-- 7
Clause31.
omit, insert-- 8
`17.20(1) An application may be made to an Industrial Magistrate for an 9
order for payment of wages due and payable to an employee, or payable on 10
account of an employee, and unpaid. 11
`(1A) An application may be made by-- 12
(a) the employee; or 13
(b) an industrial organisation of employees of which the employee is 14
a member, acting on behalf of the employee; or 15
(c) a person acting on behalf of the employee and authorised by the 16
employee to make the application; or 17
(d) an Industrial Inspector.'. 18
of s.17.21 (Enforcement of Industrial Magistrate's 19
Amendment
Orders) 20
Section 17.21(1)-- 21
Clause32.
omit, insert-- 22
`17.21(1) An order of an Industrial Magistrate for payment by an 23
employer of-- 24
(a) wages found to be due and payable; or 25
(b) contributions to an approved superannuation scheme or fund 26
found to be due and payable; or 27
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Industrial Relations Amendment
(c) costs in proceedings relating to unpaid sums mentioned in 1
paragraph (a) or (b); 2
is enforceable under the Justices Act 1886 as an order for payment of 3
money made by justices under that Act.'. 4
of s.18.19 (Offence re taking of ballot for office in 5
Replacement
industrial organisation) 6
Section 18.19-- 7
Clause33.
omit, insert-- 8
in relation to the conduct of ballots 9
`Offences
`18.19(1) This section applies in relation to the conduct of-- 10
(a) an election under Division 3A of Part 13; or 11
(b) a proposed amalgamation under Division 7 of Part 13. 12
`(2) A person who, without lawful authority or excuse-- 13
(a) impersonates another person with a view to obtaining a ballot 14
paper to which the first person is not entitled; or 15
(b) impersonates another person with a view to voting in the ballot 16
for the election or proposed amalgamation; or 17
(c) destroys, defaces, alters, takes or interferes with a nomination 18
paper, ballot paper or envelope; or 19
(d) puts a ballot paper, or other paper concerning the election or 20
proposed amalgamation into a ballot box or other receptacle in 21
use for ballot purposes; or 22
(e) delivers, or puts in the post for delivery, to a person receiving 23
ballot papers for the election or proposed amalgamation a ballot 24
paper, or other paper concerning the election or proposed 25
amalgamation; or 26
(f) records a vote having no entitlement to do so; or 27
(g) records more than 1 vote; or 28
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Industrial Relations Amendment
(h) forges a nomination paper, ballot paper or envelope, or utters a 1
nomination paper, ballot paper or envelope knowing it to be 2
forged; or 3
(i) provides a ballot paper to another; or 4
(j) obtains, or has possession of, a ballot paper; or 5
(k) destroys, opens, takes or interferes with a ballot box or other 6
receptacle in use for ballot purposes; 7
commits an offence. 8
Maximum penalty--80 penalty units. 9
`(3) A person who-- 10
(a) threatens, offers or suggests; or 11
(b) uses, inflicts, causes or procures; 12
violence, injury, punishment, damage, loss or disadvantage because of, or 13
to induce-- 14
(c) a candidature, or withdrawal of a candidature in an election or a 15
proposed amalgamation; or 16
(d) a vote, or an omission to vote, in a ballot for an election or a 17
proposed amalgamation; or 18
(e) support for, or opposition to, a candidate in an election or a 19
proposed amalgamation; or 20
(f) a promise of a vote, omission to vote, support or opposition for 21
or to a candidate or cause in an election or a proposed 22
amalgamation; 23
commits an offence. 24
Maximum penalty--80 penalty units. 25
`(4) A person who, without lawful authority or excuse-- 26
(a) requests, requires or induces another-- 27
(i) to show a ballot paper to the person; or 28
(ii) to permit the person to see a ballot paper; 29
in such a way that the person can see the vote recorded in the 30
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Industrial Relations Amendment
ballot paper, while the paper is being marked or after it has been 1
marked; or 2
(b) if the person is performing duties for the purposes of the election 3
or proposed amalgamation--shows to another person, or permits 4
another person access to, a ballot paper used in the election or 5
proposed amalgamation otherwise than in the performance of 6
those duties; 7
commits an offence. 8
Maximum penalty--80 penalty units. 9
`(5) A person who uses, inflicts, causes or procures violence, injury, 10
punishment, damage, loss or disadvantage to another person because the 11
other person has made an application under section 13.31 commits an 12
offence. 13
Maximum penalty--80 penalty units. 14
`(6) In subsection (3)-- 15
"candidate" means-- 16
(a) a person standing for office in an election; or 17
(b) an industrial organisation or association that is seeking 18
amalgamation under Division 7 of Part 13.'. 19
of s.18.23 (Failure to provide information re 20
Amendment
amalgamation ballot) 21
Section 18.23-- 22
Clause34.
omit `section 13.66', insert `section 13.70'. 23
of s.18.49 (Persons considered parties to offences) 24
Amendment
Clause35. Section 18.49(2) (after `penalty')-- 25
insert-- 26
`and any other order that may be made on the hearing and determination 27
of the charge'. 28
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Industrial Relations Amendment
of new Part 19A 1
Insertion
After Part 19-- 2
Clause36.
insert-- 3
PART 19A--SAVINGS, TRANSITIONAL AND 4
`
REPEALS 5
6
`Repeals
`19A.1(1) The repeal of the repealed Acts does not affect-- 7
(a) the continuity of identity or registration of an industrial union 8
registered as such under any Act in force at any time before the 9
commencement of this Act; or 10
(b) an exemption, granted under, or affirmed by, any of the repealed 11
Acts, of any person or class of person from the operation of the 12
provisions of any award or industrial agreement. 13
`(2) The repeal of the repealed Acts does not render defective any 14
proceedings started by or against an industrial union registered under any of 15
the repealed Acts, or started under or for the purposes of any of the repealed 16
Acts, before the repeal, or cause any such proceeding to abate or to be 17
discontinued. 18
`(3) The repeal of the repealed Acts does not affect the continued 19
operation of any enactment, the operation of which was declared by any of 20
the repealed Acts to be preserved. 21
22
`Savings
`19A.2(1) Every person of a description of person prescribed by or 23
under any Act to be an employee within the meaning of the repealed Acts 24
continues to be an employee within the meaning of this Act. 25
`(2) Every proclamation, order in council, regulation or rule made under 26
any of the repealed Acts and in force immediately before the 27
commencement of this Act continues in force until it expires by effluxion of 28
time, or is repealed, amended, suspended or cancelled under this Act. 29
`(3) Every such proclamation, order in council, regulation or rule, while 30
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Industrial Relations Amendment
it so continues in force, is to be read subject to this Act. 1
`(4) Every award, decision, exemption, judgment, ruling, permit or 2
licence or other act of authority, or industrial agreement made, given, done, 3
granted or approved by the Industrial Court, the Industrial Commission, an 4
Industrial Magistrate or the Industrial Registrar under any of the repealed 5
Acts and in force immediately before the commencement of this Act 6
continues in force as if it had been made, given, done, granted or approved 7
by the Court, Commission, magistrate or registrar, according to their 8
respective functions and jurisdictions, under the corresponding provision of 9
this Act and may be revoked, amended, suspended or modified pursuant to 10
this Act. 11
`(5) All proceedings instituted before the commencement of this Act 12
under or for the purposes of a provision of any of the repealed Acts and 13
pending at the date of the repeal of the provision may be carried on and 14
prosecuted as if they had been instituted under or for the purposes of the 15
corresponding provision of this Act. 16
`(6) If the proceeding is one in which the person or entity before whom it 17
was instituted had jurisdiction under the Industrial Conciliation and 18
Arbitration Act 1961 but has not jurisdiction under this Act, then-- 19
(a) if the proceeding stands part heard at the commencement of this 20
Act--it is to be completed before that person or entity who, for 21
this purpose, is taken to have jurisdiction as if this Act had not 22
been enacted; or 23
(b) if the proceeding does not stand part heard at the commencement 24
of this Act--it is to be completed before the person or entity who 25
has jurisdiction under this Act, as if it had been instituted before 26
that person or entity under this Act in the first instance. 27
`(7) A proceeding is taken to be part heard after commencement of the 28
hearing until the decision in the proceeding is pronounced. 29
orders and disputes 30
`Demarcation
`19A.3(1) An order in force under section 4.25 immediately before the 31
commencement is taken, after the commencement, to have been made 32
under section 4.25A. 33
`(2) If a matter is, immediately before the commencement, being dealt 34
89
Industrial Relations Amendment
with by the Commission under section 4.25, the matter is to be dealt with, 1
after the commencement, under section 4.25A as if the matter were being 2
dealt with by the Commission on an application made under section 4.25A. 3
`(3) In this section-- 4
"commencement" means the commencement of section 7 of the Industrial 5
Relations Amendment Act 1992. 6
provisions in relation to amalgamations 7
`Transitional
`19A.4(1) If the scheme for a proposed amalgamation was submitted to 8
ballot under Division 7 of Part 13 (as in force immediately before the 9
commencement), but, before the commencement, the amalgamation had 10
neither taken effect nor been rejected by the members of the industrial 11
organisations concerned, then subject to subsections (2) and (4), the 12
proposed amalgamation is to continue to be dealt with, and may take effect, 13
as if the Industrial Relations Amendment Act 1992 had not been enacted. 14
`(2) If, immediately before the commencement, none of the ballots in 15
relation to a proposed amalgamation had been started, Division 7 of Part 13 16
(as in force after the commencement) applies to the proposed amalgamation 17
as if-- 18
(a) the submission of the proposed amalgamation to ballot had been 19
approved by the Commission under that Division; and 20
(b) the reference in section 13.73K(a) to a declaration having been 21
made under section 13.62 included a reference to a declaration 22
having been made under section 13.60 (as in force immediately 23
before the commencement); and 24
(c) anything else done under this Act (as in force immediately before 25
the commencement) in relation to the proposed amalgamation 26
had been done under the corresponding provision of this Act (as 27
in force immediately after the commencement). 28
`(3) For the purposes of subsection (2), a ballot is taken to have started 29
when notice of the ballot was published in the Industrial Gazette under 30
section 13.65(2) (as in force immediately before the commencement). 31
`(4) A proposed amalgamation in relation to which an application was 32
lodged with the Industrial Registrar under section 13.56 (as in force before 33
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Industrial Relations Amendment
the commencement), and that has not taken effect before the 1
commencement, may be withdrawn by the bodies that submitted the 2
application at any time before the amalgamation takes effect. 3
`(5) In this section-- 4
"commencement" means the commencement of section 24 of the 5
Industrial Relations Amendment Act 1992.'. 6
Insertion of new Part 19B 7
After Part 19A-- 8
Clause37.
insert-- 9
`PART 19B--RENUMBERING OF ACT 10
`Renumbering of Act 11
`19B.1(1) In this section-- 12
"commencement" means the commencement of this Part; 13
"new Act" means this Act after the commencement; 14
"old Act" means this Act before the commencement. 15
`(2) The Parts of the new Act are renumbered so that they bear 16
consecutive arabic numerals starting with `1'. 17
`(3) The Divisions of each Part of the new Act are renumbered so that 18
they bear consecutive arabic numerals starting with `1'. 19
`(4) The sections of the new Act are renumbered in a single series so that 20
they bear consecutive arabic numerals starting with `1'. 21
`(5) The sentences of each section of the new Act (whether or not they 22
are subsections) are renumbered so that they bear consecutive arabic 23
numerals enclosed in brackets starting with `(1)'. 24
`(6) The provisions of each section of the new Act that are introduced 25
with a dot point (·) are numbered so that a provision-- 26
(a) if it is a provision unit equivalent to a paragraph--is numbered as 27
a paragraph; and 28
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Industrial Relations Amendment
(b) if it is a provision unit equivalent to a subparagraph--is 1
numbered as a subparagraph; and 2
(c) if it is a provision unit equivalent to a sub-subparagraph--is 3
numbered as a sub-subparagraph. 4
`(7) For the purposes of subsection (6)-- 5
(a) paragraphs in a provision may be numbered and renumbered so 6
that they bear, within the provision, consecutive, lower case 7
arabic letters enclosed in brackets starting with (a); and 8
(b) subparagraphs in a provision may be numbered and renumbered 9
so that they bear, within the provision, consecutive, lower case 10
roman numerals enclosed in brackets starting with (i); and 11
(c) sub-subparagraphs in a provision may be numbered and 12
renumbered so that they bear, within the provision, consecutive, 13
upper case arabic letters enclosed in brackets starting with (A). 14
`(8) Each reference in the new Act to a provision of the new Act that has 15
been numbered or renumbered under this section is amended by omitting 16
the reference and substituting a reference to the provision as numbered or 17
renumbered.'. 18
and consequential amendments 19
Minor
The Industrial Relations Act 1990 is further amended as set out in 20
Clause38.
the Schedule. 21
92
Industrial Relations Amendment
CHEDULE 1
¡S
INOR AND CONSEQUENTIAL AMENDMENTS 2
M
section 38 3
1. Sections 2.1 (definitions "bonus payment", "eligible employee" and 4
"young employee"), 3.9, 4.14, 4.18(4)(b), 4.18(6), 4.19(2), 4.21(1), 5
4.22(1) and (3), 4.23(1) and (3), 5.3(a)(v), 5.4(1) and (2), 8.12(2)(a), 6
8.13(c), 8.24(1)(b), 9.4(4), 10.16, 10.17, 10.19, 10.20(1), 11.1(1) and (3), 7
11.2, 11.3(1), (5), (6) and (8), 11.4 to 11.6, 11.7(1), 11.8(1), 11.12(1), 8
11.14(1), (2) and (4), 11.15(1), (2) and (5), 11.16(2)(b), 11.17, 11.19, 9
11.20(1), 11.21(1) (1st sentence), 11.28, 11.29, 11.33(1)(b), 11.34, 10
12.1(8), 13.11, 13.107(1)(c), 13.108(4), 13.109(1), 14.11(2)(b)(i), 11
14.12(3)(a)(i), 15.3(2)(c)(i) and (3), 15.4, 15.14, 15.15, 15.18(3), 16.3, 12
17.6(5)(c), 17.23, 18.9(1), 18.43(1), (3) and (4) and 18.45(1)-- 13
omit `award or industrial agreement' (wherever occurring), 14
insert `award, industrial agreement or certified agreement'. 15
2. Sections 2.1 (definition "party"), 2.2(3)(d)(i), 3.6(1)(b)(iii), 3.8, 16
3.10(a), 4.30(1)(a)(vi), 5.3(a)(ii) and (iii), 15.3(1)(a) and (b), 17
15.3(2)(c)(iii) and (2)(f), 15.4(1)(a) and (b), 17.16(1), (2)(a) and (b), 18
18.42(1) and (2), 18.44(1) and (3), 18.47(1), (3) and (4), 18.48(1) and 19
18.50(1) (2nd sentence, paragraph (a))-- 20
omit `award, industrial agreement or permit' (wherever occurring), 21
insert `award, industrial agreement, certified agreement or permit'. 22
3. Section 4.18(4)(a) (after `industrial agreement')-- 23
insert `or certified agreement'. 24
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Industrial Relations Amendment
4. Section 8.11(1) (2nd sentence, after `industrial agreement')-- 1
insert `or certified agreement'. 2
5. After section 8.12(2)(b)-- 3
insert-- 4
`(ba)a copy of a certified agreement, bearing a certificate purporting to 5
be that of the Industrial Registrar that it is a true copy, is 6
admissible as evidence of the agreement, its execution as shown 7
in the copy, and its certification by the Commission; and'. 8
6. Section 11.21(2) (after `industrial agreement' (1st occurring))-- 9
insert `or certified agreement'. 10
7. Section 11.22(a) (after `industrial agreement')-- 11
insert `, certified agreement'. 12
8. Section 11.23(1)(c)(iv)(A)-- 13
omit `an award or an industrial agreement', 14
insert `an award, an industrial agreement or a certified agreement'. 15
9. Section 13.74(1)(a)-- 16
omit `or industrial agreement' (wherever occurring), 17
insert `, industrial agreement or certified agreement'. 18
10. Section 13.75(2)(a)-- 19
omit `or industrial agreements', 20
insert `industrial agreements or certified agreements'. 21
94
Industrial Relations Amendment
11. Section 13.79(b) to (d)-- 1
omit `or industrial agreement', 2
insert `industrial agreement or certified agreements'. 3
12. Section 14.5 (after `industrial agreements,')-- 4
insert `certified agreements,'. 5
13. Section 14.6 (after `industrial agreement' (wherever occurring))-- 6
insert `, certified agreement'. 7
14. Section 15.24 (after `industrial agreement')-- 8
insert `, certified agreement'. 9
15. Section 16.2 (after `industrial agreement' (1st and 3rd 10
occurring))-- 11
insert `, certified agreement'. 12
16. Section 16.2-- 13
omit `or industrial agreement', 14
insert `or industrial agreement or certified agreement'. 15
17. Section 18.53(a) (after `industrial agreements,')-- 16
insert `certified agreements'. 17
18
© State of Queensland 1992
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