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Queensland
Industrial Relations and Other
Acts Amendment Bill 2005
Queensland
Industrial Relations and Other Acts
Amendment Bill 2005
Contents
Page
Part 1 Preliminary
1 Short title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Part 2 Industrial Relations Act 1999 amendments
2 Act amended in this part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
3 Amendment of s 6 (Who is an employer) . . . . . . . . . . . . . . . . . . . 6
4 Amendment of s 8 (Provisions about appointments and
procedure of committees) ....................... 6
5 Amendment of s 13 (Payment for annual leave). . . . . . . . . . . . . . 7
6 Amendment of s 40 (Entitlement). . . . . . . . . . . . . . . . . . . . . . . . . 7
7 Insertion of new ch 2, pt 2, div 4A . . . . . . . . . . . . . . . . . . . . . . . . 8
Division 4A Cultural leave
40A Entitlement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
8 Amendment of s 46 (Payment for long service leave) . . . . . . . . . 9
9 Amendment of s 49 (Payment for long service leave) . . . . . . . . . 10
10 Amendment of s 71 (Continuity of service--generally) . . . . . . . . 10
11 Amendment of s 72 (Who this chapter does not apply to) . . . . . . 10
12 Amendment of s 73 (When is a dismissal unfair) . . . . . . . . . . . . . 11
13 Insertion of new s 122A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
122A Proof of the reason for, or the intention of, conduct
not required . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
14 Amendment of s 126 (Content of awards) . . . . . . . . . . . . . . . . . . 11
15 Amendment of s 129 (Flow-on of certified agreements) . . . . . . . 12
16 Amendment of s 137 (Order setting minimum wages and
conditions) .................................... 12
17 Amendment of s 138 (Order setting tool allowance) . . . . . . . . . . 12
18 Amendment of s 138B (Wages payable to former apprentices or
trainees) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
2
Industrial Relations and Other Acts Amendment Bill
2005
19 Amendment of s 140 (Orders for wages and employment
conditions) ..................................... 13
20 Amendment of s 140A (Vocational placement) . . . . . . . . . . . . . . 13
21 Amendment of s 150 (Determinations made under s 149). . . . . . 13
22 Amendment of s 160 (When an agreement passes the
no-disadvantage test) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
23 Amendment of s 173 (Terminating agreement after its nominal
expiry date). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
24 Amendment of s 181 (When industrial action must not be taken) 15
25 Amendment of s 209 (When does a QWA pass the
no-disadvantage test) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
26 Insertion of new ss 242A and 242B . . . . . . . . . . . . . . . . . . . . . . . 15
242A Official seal. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
242B Finances of court . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
27 Amendment of s 252 (President's annual report) . . . . . . . . . . . . . 16
28 Omission of ch 8, pt 1, div 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
29 Insertion of new ss 255A and 255B . . . . . . . . . . . . . . . . . . . . . . . 16
255A Official seal. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
255B Finances of commission. . . . . . . . . . . . . . . . . . . . . . . 17
30 Amendment of s 263 (Removal of commissioners from office) . . 17
31 Amendment of s 269 (Commissioner administrator to consider
efficiencies that may be achieved by using dual commissioners) 17
32 Amendment of s 276 (Power to amend or void contracts) . . . . . . 17
33 Amendment of s 278 (Power to recover unpaid wages and
superannuation contribution etc.) . . . . . . . . . . . . . . . . . . . . . . . . . 18
34 Amendment of s 290 (Office of Industrial Magistrate) . . . . . . . . . 18
35 Amendment of s 335 (Costs) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
36 Amendment of s 338 (Rules) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
37 Amendment of s 353 (Entry to places) . . . . . . . . . . . . . . . . . . . . . 19
38 Amendment of s 355 (Power to require documents to be
produced) .................................... 19
39 Amendment of s 391(Wages etc. to be paid without deduction) . 19
40 Amendment of s 393 (Paying wages). . . . . . . . . . . . . . . . . . . . . . 19
41 Amendment of s 399 (Recovery of unpaid wages etc.) . . . . . . . . 20
42 Amendment of s 400 (Enforcement of magistrate's order) . . . . . . 20
43 Insertion of new ch 11, pt 2, div 3A . . . . . . . . . . . . . . . . . . . . . . . 20
Division 3A Recovery of wages for clothing outworkers
400A Definitions for div 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
3
Industrial Relations and Other Acts Amendment Bill
2005
400B Claims by clothing outworkers for unpaid wages and
super ............................... 21
400C Liability of apparent employer for unpaid wages and
super ............................... 22
400D Liability of referred employer for unpaid wages . . . . . 23
400E Reimbursement of apparent or referred employer . . . 24
400F Recovery of unpaid wages . . . . . . . . . . . . . . . . . . . . . 24
400G Offences relating to claims under this division . . . . . . 25
400H Effect of sections 400B400G . . . . . . . . . . . . . . . . . . 26
400I Mandatory code of practice for outworkers . . . . . . . . 26
44 Omission of s 405 (Agreement about superannuation fund) . . . . 27
45 Amendment of s 406 (Contributing occupational superannuation) 27
46 Amendment of s 638 (General deregistration grounds) . . . . . . . . 27
47 Amendment of s 666 (Non-payment of wages) . . . . . . . . . . . . . . 28
48 Amendment of s 670 (Contraventions of industrial instruments) . 28
49 Amendment of s 696 (Aged or infirm persons permits) . . . . . . . . 29
50 Amendment of s 708 (Approved forms) . . . . . . . . . . . . . . . . . . . . 29
51 Omission of ch 16 (Industrial relations advisory committee) . . . . 29
52 Insertion of new ch 20, pt 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Part 3 2005 amendment Act
735 Definition for part . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
736 Continuity of service . . . . . . . . . . . . . . . . . . . . . . . . . . 30
737 Dismissals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
53 Amendment of sch 1 (Industrial matters) . . . . . . . . . . . . . . . . . . . 30
54 Amendment of sch 2 (Appointments and procedures) . . . . . . . . . 30
55 Amendment of sch 5 (Dictionary) . . . . . . . . . . . . . . . . . . . . . . . . . 31
Part 3 Trading (Allowable Hours) Act 1990 amendments
56 Act amended in this part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
57 Amendment of s 31B (Industrial commission order amended) . . 32
Part 4 Workers' Compensation and Rehabilitation Act 2003
amendments
58 Act amended in this part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
59 Amendment of s 5 (Workers' compensation scheme) . . . . . . . . . 33
60 Amendment of s 285 (Consequence of failure to give
information) ................................... 33
61 Replacement of ch 14, pt 1, hdg . . . . . . . . . . . . . . . . . . . . . . . . . 34
62 Amendment of s 572 (Claimant or worker entitled to obtain
certain documents). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
4
Industrial Relations and Other Acts Amendment Bill
2005
63 Insertion of new s 572A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
572A Access to particular documents for employment
purposes prohibited . . . . . . . . . . . . . . . . . . . . . . . . . . 34
64 Amendment of s 573 (Disclosure of information) . . . . . . . . . . . . . 35
65 Insertion of new s 585 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
585 Entitlements to compensation under contract of
employment prohibited and void. . . . . . . . . . . . . . . . . 35
66 Insertion of new ch 17 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Chapter 17 Transitional provision for Industrial Relations
and Other Acts Amendment Act 2005
626 Compensation under contracts of employment . . . . . 36
2005
A Bill
for
An Act to amend legislation administered by the Minister for
Employment, Training and Industrial Relations
s1 6 s4
Industrial Relations and Other Acts Amendment Bill
2005
The Parliament of Queensland enacts-- 1
Part 1 Preliminary 2
Clause 1 Short title 3
This Act may be cited as the Industrial Relations and Other 4
Acts Amendment Act 2005. 5
Part 2 Industrial Relations Act 1999 6
amendments 7
Clause 2 Act amended in this part 8
This part amends the Industrial Relations Act 1999. 9
Clause 3 Amendment of s 6 (Who is an employer) 10
Section 6(2)(e), after `proceedings'-- 11
insert-- 12
`for an offence or'. 13
Clause 4 Amendment of s 8 (Provisions about appointments and 14
procedure of committees) 15
(1) Section 8, heading, `of committees'-- 16
omit. 17
(2) Section 8(a), after `president'-- 18
insert-- 19
`, vice president, deputy presidents'. 20
(3) Section 8(d)-- 21
s5 7 s6
Industrial Relations and Other Acts Amendment Bill
2005
omit, insert-- 1
`(d) associates.'. 2
Clause 5 Amendment of s 13 (Payment for annual leave) 3
Section 13-- 4
insert-- 5
`(3) If an employee is entitled to receive an amount representing 6
commission in the employee's annual leave payment, the 7
employer must pay the default average commission unless-- 8
(a) a relevant industrial instrument or contract between the 9
employer and employee otherwise provides; or 10
(b) the commission, on application, considers that the 11
default average commission would not represent a fair 12
amount in the circumstances. 13
`(4) If, on application under subsection (3)(b), the commission 14
considers that the default average commission would not 15
represent a fair amount in the circumstances, the commission 16
may make the order it considers appropriate in the 17
circumstances. 18
`(5) In this section-- 19
default average commission means-- 20
· the total commissions payable to the employee in the 21
1 year before the leave is taken, or during the 22
employee's period of employment, whichever is less 23
· divided by 365.25, or the number of days in the 24
employee's period of employment, whichever is less 25
· multiplied by the number of days leave for which 26
payment is being made.'. 27
Clause 6 Amendment of s 40 (Entitlement) 28
Section 40(2) and (3)-- 29
omit, insert-- 30
s7 8 s7
Industrial Relations and Other Acts Amendment Bill
2005
`(2) An employee, other than a long term casual employee, is 1
entitled to-- 2
(a) at least 2 days bereavement leave on full pay on the 3
death of a member of the person's immediate family or 4
household; and 5
(b) if the employee reasonably requires extra time to travel 6
to and from the funeral or other ceremony for the 7
death--an amount of unpaid bereavement leave equal to 8
the time reasonably required for the travel. 9
`(3) A long term casual employee is entitled to-- 10
(a) at least 2 days unpaid bereavement leave on the death of 11
a member of the person's immediate family or 12
household; and 13
(b) if the employee reasonably requires extra time to travel 14
to and from the funeral or other ceremony for the 15
death--an amount of unpaid bereavement leave equal to 16
the time reasonably required for the travel.'. 17
Clause 7 Insertion of new ch 2, pt 2, div 4A 18
Chapter 2, part 2-- 19
insert-- 20
`Division 4A Cultural leave 21
`40A Entitlement 22
`(1) An employee may take up to 5 days unpaid cultural leave in 23
each year, if the employer agrees. 24
`(2) The employer must not unreasonably refuse the leave. 25
`(3) In considering the employee's request for leave, the employer 26
must consider at least the following-- 27
(a) the employer's capacity to reorganise work 28
arrangements to accommodate the employee's request; 29
(b) the impact of the employee's absence on the delivery of 30
customer service; 31
s8 9 s8
Industrial Relations and Other Acts Amendment Bill
2005
(c) the particular circumstances of the employee; 1
(d) the impact of a refusal on the employee, including the 2
employee's ability to balance his or her work and family 3
responsibilities. 4
`(4) The employee must, if practicable, give the employer-- 5
(a) reasonable notice of the intention to take cultural leave 6
before taking the leave; and 7
(b) the reason for taking the leave; and 8
(c) the period that the employee estimates the employee 9
will be absent. 10
`(5) If it is not practicable for the employee to give the notice 11
before taking the leave, the employee must give the employer 12
notice of the matters in subsection (4)(b) and (c) at the first 13
opportunity. 14
`(6) It is declared that leave provided under this section is a 15
welfare measure for the purposes of the Anti-Discrimination 16
Act 1991, section 104.1 17
`(7) In this section-- 18
employee means an employee who is required by Aboriginal 19
tradition or Island custom to attend an Aboriginal or Torres 20
Strait Islander ceremony.'. 21
Clause 8 Amendment of s 46 (Payment for long service leave) 22
(1) Section 46(6)-- 23
renumber as section 46(12). 24
(2) Section 46-- 25
insert-- 26
`(6) If an employee is entitled to receive an amount representing 27
commission in the employee's long service leave payment, the 28
employer must pay the default average commission unless-- 29
1 Anti-Discrimination Act 1991, section 104 (Welfare measures)
s9 10 s 11
Industrial Relations and Other Acts Amendment Bill
2005
(a) a relevant industrial instrument or contract between the 1
employer and employee otherwise provides; or 2
(b) the commission, on application, considers that the 3
default average commission would not represent a fair 4
amount in the circumstances. 5
`(7) If, on application under subsection (6)(b), the commission 6
considers that the default average commission would not 7
represent a fair amount in the circumstances, the commission 8
may make the order it considers appropriate in the 9
circumstances.'. 10
(3) Section 46(12), as amended-- 11
insert-- 12
`default average commission means-- 13
· the total commissions payable to the employee in the 14
1 year before the leave is taken 15
· divided by 52.179 16
· multiplied by the number of weeks leave for which 17
payment is being made.'. 18
Clause 9 Amendment of s 49 (Payment for long service leave) 19
Section 49(3) to (6)-- 20
relocate and renumber as section 46(8) to (11). 21
Clause 10 Amendment of s 71 (Continuity of service--generally) 22
Section 71(9), `to (6)'-- 23
omit, insert-- 24
`, (4), (5), (6)(b) or (7)'. 25
Clause 11 Amendment of s 72 (Who this chapter does not apply to) 26
(1) Section 72(1)(c), `dismissal is for a reason mentioned in 27
section 73(2)(i), (j), (k) or (m)'-- 28
omit, insert-- 29
s 12 11 s 14
Industrial Relations and Other Acts Amendment Bill
2005
`reason for the dismissal is an invalid reason'. 1
(2) Section 72(1)(d)-- 2
insert-- 3
`(iii) the reason for the dismissal is an invalid reason; 4
or'. 5
Clause 12 Amendment of s 73 (When is a dismissal unfair) 6
Section 73-- 7
insert-- 8
`(3) In this section-- 9
parental leave has the meaning given in section 17.'. 10
Clause 13 Insertion of new s 122A 11
Chapter 4, part 4-- 12
insert-- 13
`122A Proof of the reason for, or the intention of, conduct 14
not required 15
`(1) This section applies if-- 16
(a) in an application under this part about an entity's 17
conduct, it is alleged that the conduct was, or is being, 18
carried out for a particular reason or with a particular 19
intent; and 20
(b) for the entity to carry out the conduct for that reason or 21
with that intent would constitute a contravention of this 22
part. 23
`(2) It is to be presumed, in proceedings under this part arising 24
from the application, that the conduct was, or is being, carried 25
out for that reason or with that intent, unless the entity proves 26
otherwise.'. 27
Clause 14 Amendment of s 126 (Content of awards) 28
(1) Section 126(i)-- 29
s 15 12 s 17
Industrial Relations and Other Acts Amendment Bill
2005
insert-- 1
`(iv) contains facilitative provisions that allow 2
agreement at the workplace or enterprise level, 3
between employers and employees (including 4
individual employees), to be reached on work and 5
family responsibilities; and'. 6
(2) Section 126-- 7
insert-- 8
`(j) takes into account employees' family responsibilities.'. 9
Clause 15 Amendment of s 129 (Flow-on of certified agreements) 10
Section 129-- 11
insert-- 12
`(2) However, the commission must include in an award 13
provisions that are based on a certified agreement if-- 14
(a) the parties to the certified agreement agree; and 15
(b) the parties to the certified agreement are bound by the 16
award. 17
`(3) The provisions included under subsection (2) must apply only 18
to the parties to the certified agreement.'. 19
Clause 16 Amendment of s 137 (Order setting minimum wages and 20
conditions) 21
Section 137(4)(b)(i), after `Training'-- 22
insert-- 23
`and Employment'. 24
Clause 17 Amendment of s 138 (Order setting tool allowance) 25
Section 138(3)(b)(i), after `Training'-- 26
insert-- 27
`and Employment'. 28
s 18 13 s 21
Industrial Relations and Other Acts Amendment Bill
2005
Clause 18 Amendment of s 138B (Wages payable to former 1
apprentices or trainees) 2
Section 138B(3), after `Training'-- 3
insert-- 4
`and Employment'. 5
Clause 19 Amendment of s 140 (Orders for wages and employment 6
conditions) 7
Section 140(3)(b)(i), after `Training'-- 8
insert-- 9
`and Employment'. 10
Clause 20 Amendment of s 140A (Vocational placement) 11
Section 140A(2)(b)(i), after `Training'-- 12
insert-- 13
`and Employment'. 14
Clause 21 Amendment of s 150 (Determinations made under s 149) 15
Section 150(2) to (6)-- 16
omit, insert-- 17
`(2) The determination has effect subject to any conditions 18
specified in it. 19
`(3) The determination (including a determination made before the 20
commencement of this subsection) operates until-- 21
(a) before its nominal expiry date has passed--the 22
commission, acting on an application under 23
subsection (4), revokes it under subsection (5); or 24
(b) after its nominal expiry date has passed-- 25
(a) it is replaced by a certified agreement; or 26
(b) the commission, acting on an application under 27
subsection (4), revokes it under subsection (6). 28
s 21 14 s 21
Industrial Relations and Other Acts Amendment Bill
2005
`(4) The following persons may apply to the commission to revoke 1
a determination-- 2
(a) the employer; 3
(b) a valid majority of the employees to whom the 4
determination applies; 5
(c) an employee organisation that-- 6
(i) is bound by the determination; and 7
(ii) has at least 1 member who is an employee bound 8
by the determination. 9
`(5) Before the determination's nominal expiry date has passed, 10
the commission must not revoke the determination unless 11
satisfied-- 12
(a) the employer and the 1 or more employee organisations, 13
or a valid majority of the employees, who are bound by 14
the determination have agreed to the revocation (for 15
example, because they propose to make an agreement 16
under division 12); and 17
(b) the revocation would not be against the public interest. 18
`(6) After the determination's nominal expiry date has passed, the 19
commission must revoke the determination if, and only if, 20
satisfied-- 21
(a) for a determination that provides that it may be revoked 22
if particular conditions are met--the conditions have 23
been met; or 24
(b) for a determination that does not provide for the way it 25
may be revoked--it is in the public interest to revoke the 26
determination. 27
`(7) The revocation takes effect when the commission's approval 28
takes effect. 29
`(8) While a determination operates-- 30
2 Division 1 (Making agreements)
s 22 15 s 26
Industrial Relations and Other Acts Amendment Bill
2005
(a) the determination prevails, to the extent of any 1
inconsistency, over an award or industrial agreement or 2
an order made under section 137; and 3
(b) the determination can not be amended.'. 4
Clause 22 Amendment of s 160 (When an agreement passes the 5
no-disadvantage test) 6
Section 160(5), before `president'-- 7
insert-- 8
`vice'. 9
Clause 23 Amendment of s 173 (Terminating agreement after its 10
nominal expiry date) 11
Section 173(3)(a), `certain'-- 12
omit, insert-- 13
`particular'. 14
Clause 24 Amendment of s 181 (When industrial action must not be 15
taken) 16
Section 181(1)(b), `while it operates'-- 17
omit, insert-- 18
`from when it starts operating until its nominal expiry date has 19
passed'. 20
Clause 25 Amendment of s 209 (When does a QWA pass the 21
no-disadvantage test) 22
Section 209(4), before `president'-- 23
insert-- 24
`vice'. 25
Clause 26 Insertion of new ss 242A and 242B 26
Chapter 8, part 1, division 1, after section 242-- 27
s 27 16 s 29
Industrial Relations and Other Acts Amendment Bill
2005
insert-- 1
`242A Official seal 2
`(1) The court has an official seal. 3
`(2) All courts and persons acting judicially must take judicial 4
notice of the official seal affixed to any document and must 5
presume, until the contrary is proved, that it was properly 6
affixed. 7
`242B Finances of court 8
`The court is part of the department for the purposes of the 9
Financial Administration and Audit Act 1977.'. 10
Clause 27 Amendment of s 252 (President's annual report) 11
Section 252-- 12
insert-- 13
`(1A) The registrar must prepare, and give to the president, a report 14
for the year on the working of the registry for inclusion in the 15
president's report under subsection (1).'. 16
Clause 28 Omission of ch 8, pt 1, div 5 17
Chapter 8, part 1, division 5-- 18
omit. 19
Clause 29 Insertion of new ss 255A and 255B 20
After section 255-- 21
insert-- 22
`255A Official seal 23
`(1) The commission has an official seal. 24
`(2) All courts and persons acting judicially must take judicial 25
notice of the official seal affixed to any document and must 26
presume, until the contrary is proved, that it was properly 27
affixed. 28
s 30 17 s 32
Industrial Relations and Other Acts Amendment Bill
2005
`255B Finances of commission 1
`The commission is part of the department for the purposes of 2
the Financial Administration and Audit Act 1977.'. 3
Clause 30 Amendment of s 263 (Removal of commissioners from 4
office) 5
Section 263, `address to the Legislative Assembly'-- 6
omit, insert-- 7
`address of the Legislative Assembly'. 8
Clause 31 Amendment of s 269 (Commissioner administrator to 9
consider efficiencies that may be achieved by using dual 10
commissioners) 11
Section 269, heading, `Commissioner administrator'-- 12
omit, insert-- 13
`Vice president'. 14
Clause 32 Amendment of s 276 (Power to amend or void contracts) 15
(1) Section 276-- 16
insert-- 17
`(1A) The commission must not-- 18
(a) amend a contract (whether made before or after the 19
commencement of this subsection) to include an 20
accident pay provision; or 21
(b) declare a contract (whether made before or after the 22
commencement of this subsection) wholly or partly 23
void, because it does not contain an accident pay 24
provision.'. 25
(2) Section 276(7)-- 26
insert-- 27
`accident pay provision means a provision for accident pay, 28
or other payment, on account of a worker sustaining an injury. 29
s 33 18 s 36
Industrial Relations and Other Acts Amendment Bill
2005
injury means an injury under the Workers' Compensation and 1
Rehabilitation Act 2003. 2
worker means a worker under the Workers' Compensation 3
and Rehabilitation Act 2003.'. 4
Clause 33 Amendment of s 278 (Power to recover unpaid wages and 5
superannuation contribution etc.) 6
(1) Section 278(2), `$20 000'-- 7
omit, insert-- 8
`$50 000'. 9
(2) Section 278(11), `or 408'-- 10
omit, insert-- 11
`, 400F or 408'. 12
Clause 34 Amendment of s 290 (Office of Industrial Magistrate) 13
Section 290(a) and (b), `stipendiary'-- 14
omit. 15
Clause 35 Amendment of s 335 (Costs) 16
Section 335, heading-- 17
omit, insert-- 18
`335 General power to award costs'. 19
Clause 36 Amendment of s 338 (Rules) 20
(1) Section 338(3)(a), `Stipendiary'-- 21
omit. 22
(2) Section 338(3)(c), `2 commissioners'-- 23
omit, insert-- 24
`the vice president and another commissioner'. 25
s 37 19 s 40
Industrial Relations and Other Acts Amendment Bill
2005
Clause 37 Amendment of s 353 (Entry to places) 1
Section 353(2)-- 2
insert-- 3
`(c) enter that part of the place the inspector reasonably 4
believes clothing outwork is being, has been, or is about 5
to be carried on.'. 6
Clause 38 Amendment of s 355 (Power to require documents to be 7
produced) 8
Section 355-- 9
insert-- 10
`(7) To remove any doubt, it is declared that the powers of an 11
inspector under this section-- 12
(a) are additional to the powers under section 371;3 and 13
(b) do not limit, and are not limited by, any other powers of 14
an inspector under this Act.'. 15
Clause 39 Amendment of s 391(Wages etc. to be paid without 16
deduction) 17
Section 391(2)(b), before `Recognition Council'-- 18
insert-- 19
`and Employment'. 20
Clause 40 Amendment of s 393 (Paying wages) 21
Section 393(6), before `unless'-- 22
insert-- 23
`or for a shorter period stated in an industrial instrument,'. 24
3 Section 371 (Inspection of time and wages record--inspector)
s 41 20 s 43
Industrial Relations and Other Acts Amendment Bill
2005
Clause 41 Amendment of s 399 (Recovery of unpaid wages etc.) 1
Section 399(6), after `278'-- 2
insert-- 3
`or 400F'. 4
Clause 42 Amendment of s 400 (Enforcement of magistrate's order) 5
Section 400(3) to (5)-- 6
omit, insert-- 7
`(3) Also, an amount ordered to be paid, including costs, may be 8
recovered by the person from the employer as a debt. 9
`(4) For subsection (3), the order requiring payment may be filed 10
in the registry of a Magistrates Court under the Magistrates 11
Courts Act 1921, and on being filed-- 12
(a) is taken to be an order properly made by a Magistrates 13
Court; and 14
(b) without limiting subsection (2), may be enforced as an 15
order made by the Magistrates Court. 16
`(5) In this section-- 17
employer includes-- 18
(a) an employer to whom an order made under 19
section 140A4 applies; and 20
(b) an apparent employer to whom an order made under 21
section 400F5 applies.'. 22
Clause 43 Insertion of new ch 11, pt 2, div 3A 23
Chapter 11, part 2-- 24
insert-- 25
4 Section 140A (Vocational placement)
5 Section 400F (Recovery of unpaid wages)
s 43 21 s 43
Industrial Relations and Other Acts Amendment Bill
2005
`Division 3A Recovery of wages for clothing 1
outworkers 2
`400A Definitions for div 3 3
`In this division-- 4
apparent employer see section 400B(2). 5
referred claim means a claim referred to a referred employer 6
under section 400C(4). 7
referred employer see section 400C(2). 8
superannuation contributions means contributions to an 9
approved superannuation fund for an outworker who, under a 10
relevant industrial instrument, is an eligible employee for 11
entitlement to occupational superannuation benefits. 12
unpaid wages claim means a claim for wages, or 13
superannuation contributions, made under section 400B. 14
`400B Claims by clothing outworkers for unpaid wages and 15
super 16
`(1) This section applies if-- 17
(a) all or any of the wages payable to an outworker in the 18
clothing industry are not paid; or 19
(b) all or any of the superannuation contributions payable 20
for an outworker in the clothing industry are not paid. 21
`(2) The outworker may make a claim for the wages, or 22
superannuation contributions, against a person who the 23
outworker believes is his or her employer (the apparent 24
employer). 25
`(3) However, the claim can not be made against a person whose 26
only connection with the clothing industry is the sale of 27
clothing by retail. 28
`(4) A claim, to the extent it relates to wages, must be made within 29
6 months after the work was finished. 30
s 43 22 s 43
Industrial Relations and Other Acts Amendment Bill
2005
`(5) The outworker makes an unpaid wages claim by serving the 1
apparent employer with a written notice that-- 2
(a) claims payment of the wages or superannuation 3
contributions; and 4
(b) states these particulars-- 5
(i) the name of the outworker; and 6
(ii) the address at which the outworker may be 7
contacted; and 8
(iii) a description of the work done; and 9
(iv) the date on which the work was done; and 10
(v) the amount of wages owing; and 11
(vi) the amount of superannuation contributions owing; 12
and 13
(vii) details of the approved superannuation fund to 14
which superannuation contributions should have 15
been paid, that are sufficiently detailed to enable 16
the contributions to be properly paid. 17
`(6) The particulars stated in the claim must be verified by 18
statutory declaration. 19
`(7) This section applies only to wages for work done or 20
superannuation contributions payable after the 21
commencement of this section. 22
`400C Liability of apparent employer for unpaid wages and 23
super 24
`(1) Subject to subsection (5), an apparent employer served with 25
an unpaid wages claim is liable for the amount claimed unless 26
the apparent employer proves in proceedings under 27
section 400F that-- 28
(a) the work was not done; or 29
(b) an amount claimed is not the correct amount; or 30
(c) an amount claimed has already been paid. 31
s 43 23 s 43
Industrial Relations and Other Acts Amendment Bill
2005
`(2) An apparent employer may, within 14 days after being served 1
with an unpaid wages claim, refer the claim to another person 2
whom the apparent employer reasonably believes is the 3
person for whom the work was done (the referred employer). 4
`(3) However, the claim can not be referred to a person whose only 5
connection with the clothing industry is the sale of clothing by 6
retail. 7
`(4) An apparent employer refers an unpaid wages claim by-- 8
(a) serving the referred employer with a copy of the unpaid 9
wages claim and a written notice that states-- 10
(i) the name and address of the apparent employer; 11
and 12
(ii) the date on which the outworker served the 13
apparent employer with the unpaid wages claim; 14
and 15
(b) advising the outworker in writing of-- 16
(i) the name and address of the referred employer; and 17
(ii) the date on which the apparent employer served the 18
referred employer with the referred claim. 19
`(5) The apparent employer is not liable for any part of the amount 20
claimed in an unpaid wages claim for which the referred 21
employer accepts liability under section 400D. 22
`400D Liability of referred employer for unpaid wages 23
`(1) A referred employer may, within 14 days after being served 24
with a referred claim, accept liability for all or part of the 25
amount claimed by paying it to-- 26
(a) for wages--the outworker; or 27
(b) for superannuation contributions--the superannuation 28
fund stated in the unpaid wages claim. 29
`(2) A referred employer who accepts liability must serve the 30
apparent employer with a written notice of the acceptance and 31
of the amount paid. 32
s 43 24 s 43
Industrial Relations and Other Acts Amendment Bill
2005
`(3) If the apparent employer pays all or any part of the amount 1
claimed for which the referred employer does not accept 2
liability, the apparent employer may deduct or set-off that 3
amount from any amount that the apparent employer owes to 4
the referred employer, whether or not in relation to the work 5
that is the subject of the referred claim. 6
`400E Reimbursement of apparent or referred employer 7
`An application may be made to the commission or to a 8
magistrate for an order that the employer of the outworker 9
reimburse the apparent or referred employer for the amount 10
that the apparent or referred employer paid to-- 11
(a) the outworker; or 12
(b) an approved superannuation fund for the outworker. 13
`400F Recovery of unpaid wages 14
`(1) An application may be made for an order that an apparent 15
employer pay an unpaid wages claim. 16
`(2) The application may be made to-- 17
(a) if the total amount claimed is $50 000 or less--the 18
commission or a magistrate; or 19
(b) otherwise--a magistrate. 20
`(3) The application may be made by-- 21
(a) an outworker; or 22
(b) an employee organisation of which the outworker is a 23
member, acting for the outworker; or 24
(c) an inspector. 25
`(4) The application must be made within 6 years after the amount 26
claimed in the application became payable. 27
`(5) The commission or magistrate must order the apparent 28
employer to pay the wages or superannuation contributions 29
claimed unless the apparent employer proves that-- 30
(a) the work was not done; or 31
s 43 25 s 43
Industrial Relations and Other Acts Amendment Bill
2005
(b) an amount claimed is not the correct amount; or 1
(c) an amount claimed has already been paid. 2
`(6) If the commission or magistrate is satisfied that an amount 3
claimed is not the correct amount, the commission or 4
magistrate may order payment of the amount that the 5
commission or magistrate is satisfied is payable. 6
`(7) For an order about superannuation contributions, the order 7
must require the amount to be paid to-- 8
(a) the approved superannuation fund; or 9
(b) a complying superannuation fund; or 10
(c) a superannuation fund nominated by the outworker; or 11
(d) an eligible rollover fund; or 12
(e) if the amount is less than the amount of total benefits 13
than may revert to an employee under the 14
Superannuation Industry (Supervision) Act 1993 15
(Cwlth)--the outworker. 16
`(8) The superannuation contributions must be paid into the 17
unclaimed moneys fund if the outworker does not nominate a 18
superannuation fund for the purpose of the order, if the order 19
requires a fund to be nominated. 20
`(9) In this section-- 21
superannuation contributions includes an amount equal to 22
the return that would have been accrued in relation to the 23
superannuation contributions had they been properly paid to 24
an approved superannuation fund. 25
`400G Offences relating to claims under this division 26
`A person must not-- 27
(a) by intimidation or by any other act or omission, 28
intentionally hinder, prevent or discourage someone 29
from making an unpaid wages claim or an application 30
under section 400F; or 31
s 43 26 s 43
Industrial Relations and Other Acts Amendment Bill
2005
(b) make any statement that the person knows is false or 1
misleading in a material particular in any notice given 2
for the purposes of section 400C or 400D; or 3
(c) serve a referred claim on someone under section 400C if 4
the person does not reasonably believe that the work 5
under an unpaid wages claim was done for the other 6
person. 7
Maximum penalty--100 penalty units. 8
`400H Effect of sections 400B400G 9
`(1) Sections 400B to 400G do not limit or exclude any other 10
rights of a person to recover wages or superannuation 11
contributions, or any liability of any person in relation to the 12
wages or superannuation contributions, whether or not arising 13
under this Act, another law, or an industrial instrument. 14
`(2) Nothing in section 400D(3) limits or excludes any right of 15
recovery arising under any other law in relation to any amount 16
of money owed by the apparent employer to the referred 17
employer. 18
`400I Mandatory code of practice for outworkers 19
`(1) The Governor in Council may make a code of practice for the 20
purpose of ensuring that outworkers in the clothing industry 21
receive their lawful entitlements. 22
`(2) In particular, the Governor in Council may make a code of 23
practice if it is considered-- 24
(a) that current voluntary self-regulatory mechanisms are 25
inadequate to achieve improvements in the level of 26
compliance with obligations to ensure outworkers 27
receive their lawful entitlements; or 28
(b) that persons engaged in the clothing industry are not in 29
good faith attempting to negotiate improvements or 30
extensions to the current voluntary self-regulatory 31
mechanisms. 32
`(3) The code may require employers or other persons engaged in 33
the clothing industry to adopt the standards of conduct and 34
s 44 27 s 46
Industrial Relations and Other Acts Amendment Bill
2005
practice relating to outworkers in the clothing industry that are 1
set out in the code. 2
`(4) The Governor in Council must give notice of the making of 3
the code of practice. 4
`(5) The notice is subordinate legislation. 5
`(6) A contravention of the code of practice is an offence. 6
Maximum penalty--100 penalty units. 7
`(7) An award prevails over a code of practice to the extent of any 8
inconsistency.'. 9
Clause 44 Omission of s 405 (Agreement about superannuation 10
fund) 11
Section 405-- 12
omit. 13
Clause 45 Amendment of s 406 (Contributing occupational 14
superannuation) 15
Section 406-- 16
insert-- 17
`(6) An employer may continue to contribute to another 18
superannuation fund in accordance with an agreement under 19
the repealed section 405. 20
`(7) In this section-- 21
repealed section 405 means section 405 as in force 22
immediately before the commencement of this subsection.'. 23
Clause 46 Amendment of s 638 (General deregistration grounds) 24
Section 638(b)-- 25
omit. 26
s 47 28 s 48
Industrial Relations and Other Acts Amendment Bill
2005
Clause 47 Amendment of s 666 (Non-payment of wages) 1
Section 666(1), from `a relevant' to `section 8A or 136' and 2
footnote-- 3
omit, insert-- 4
`this Act, a relevant industrial instrument or permit'. 5
Clause 48 Amendment of s 670 (Contraventions of industrial 6
instruments) 7
Section 670-- 8
insert-- 9
`(5) A magistrate may hear and decide a complaint for an offence 10
against this section. 11
`(6) If the magistrate finds that-- 12
(a) the defendant contravened an industrial instrument; and 13
(b) the contravention resulted in an amount being unpaid; 14
the magistrate must order the defendant to pay an entity the 15
amount that the magistrate finds is payable. 16
`(7) However, even if the magistrate does not find the defendant 17
guilty of a contravention of an industrial instrument, the 18
magistrate may order the defendant to pay an entity the 19
amount that the magistrate, on the balance of probabilities, 20
finds is payable. 21
`(8) The magistrate may order the amount to be paid in the way 22
that the magistrate considers appropriate. 23
`(9) The magistrate may make an order under subsection (6) or (7) 24
in addition to any penalty that the magistrate may impose. 25
`(10) An order must not be made for payment of an amount that 26
became payable more than 6 years before the proceedings 27
were brought. 28
`(11) An order for the payment of an amount must not be made 29
under this section if the order may be made under another 30
section of this Act.'. 31
s 49 29 s 52
Industrial Relations and Other Acts Amendment Bill
2005
Clause 49 Amendment of s 696 (Aged or infirm persons permits) 1
(1) Section 696(1), `provided for by an industrial instrument'-- 2
omit. 3
(2) Section 696-- 4
insert-- 5
`(1A) For subsection (1), the minimum wage is the greater of-- 6
(a) the Queensland minimum wage; or 7
(b) the minimum wage provided for by a relevant industrial 8
instrument; or 9
(c) the minimum wage determined by the commission, after 10
considering-- 11
(i) the Queensland minimum wage; and 12
(ii) any industrial instrument that regulates 13
employment conditions of employees engaged in a 14
similar kind of work as the aged or infirm person 15
under the proposed permit.'. 16
Clause 50 Amendment of s 708 (Approved forms) 17
Section 708-- 18
insert-- 19
`(1A) The president must consult with the vice president before 20
approving a form for use by, or in, the commission or 21
registry.'. 22
Clause 51 Omission of ch 16 (Industrial relations advisory 23
committee) 24
Chapter 16-- 25
omit. 26
Clause 52 Insertion of new ch 20, pt 3 27
Chapter 20-- 28
insert-- 29
s 53 30 s 54
Industrial Relations and Other Acts Amendment Bill
2005
`Part 3 2005 amendment Act 1
`735 Definition for part 2
`In this part-- 3
2005 amendment Act means the Industrial Relations and 4
Other Acts Amendment Act 2005. 5
`736 Continuity of service 6
`The amendment of section 71(9) by the 2005 amendment Act 7
applies only to an employee's service after the 8
commencement of the amendment. 9
`737 Dismissals 10
`The amendment of section 72(1)(c) and (d) by the 2005 11
amendment Act applies only to a dismissal after the 12
commencement of the amendment.'. 13
Clause 53 Amendment of sch 1 (Industrial matters) 14
Schedule 1-- 15
insert-- 16
`28 Balancing work and family responsibilities.'. 17
Clause 54 Amendment of sch 2 (Appointments and procedures) 18
(1) Schedule 2, heading-- 19
omit, insert-- 20
`Schedule 2 Appointments'. 21
(2) Schedule 2, section 4, heading-- 22
omit, insert-- 23
`4 Leave under the Judges (Pensions and Long Leave) Act 24
1957'. 25
(3) Schedule 2, section 4A, heading-- 26
s 55 31 s 55
Industrial Relations and Other Acts Amendment Bill
2005
omit, insert-- 1
`4A Other leave'. 2
(4) Schedule 2, section 4A, `of absence'-- 3
omit, insert-- 4
`, other than leave mentioned in the Judges (Pensions and 5
Long Leave) Act 1957, section 15,'. 6
(5) Schedule 2, part 1-- 7
insert-- 8
`4B Other terms and conditions 9
`A member holds office on the terms and conditions, not 10
provided for by this Act or the Judges (Salaries and 11
Allowances) Act 1967, decided by the Governor in Council.'. 12
(6) Schedule 2-- 13
insert-- 14
`Part 1A Associates 15
`4C Appointment conditions 16
`(1) The Governor in Council may appoint associates to the 17
members of the commission. 18
`(2) An associate holds office on the wages and conditions decided 19
by the Governor in Council. 20
`(3) An associate is to be appointed under this Act, and not under 21
the Public Service Act 1996.'. 22
(7) Schedule 2, parts 4 and 5-- 23
omit. 24
Clause 55 Amendment of sch 5 (Dictionary) 25
(1) Schedule 5, definitions approved superannuation fund, 26
parental leave and Training Recognition Council-- 27
omit. 28
(2) Schedule 5-- 29
s 56 32 s 57
Industrial Relations and Other Acts Amendment Bill
2005
insert-- 1
`apparent employer, for chapter 11, part 2, division 3A, see 2
section 400A. 3
approved superannuation fund means a complying 4
superannuation fund nominated in an industrial instrument. 5
referred employer, for chapter 11, part 2, division 3A, see 6
section 400A. 7
referred claim, for chapter 11, part 2, division 3A, see 8
section 400A. 9
Training and Employment Recognition Council means the 10
Training and Employment Recognition Council established 11
under the Vocational Education, Training and Employment 12
Act 2000, section 167. 13
unpaid wages claim, for chapter 11, part 2, division 3A, see 14
section 400A.'. 15
(3) Schedule 5, definition industrial instrument, after `EFA'-- 16
insert-- 17
`, code of practice under section 400I'. 18
Part 3 Trading (Allowable Hours) Act 19
1990 amendments 20
Clause 56 Act amended in this part 21
This part amends the Trading (Allowable Hours) Act 1990. 22
Clause 57 Amendment of s 31B (Industrial commission order 23
amended) 24
Section 31B-- 25
insert-- 26
`(6A) Subsection (6) does not apply to 26 December or 1 January if 27
that date-- 28
s 58 33 s 60
Industrial Relations and Other Acts Amendment Bill
2005
(a) falls on a Sunday; and 1
(b) would have been a public holiday had there not been a 2
substitution under the Holidays Act 1983, section 2(2) or 3
(3) or 3.6'. 4
Part 4 Workers' Compensation and 5
Rehabilitation Act 2003 6
amendments 7
Clause 58 Act amended in this part 8
This part amends the Workers' Compensation and 9
Rehabilitation Act 2003. 10
Clause 59 Amendment of s 5 (Workers' compensation scheme) 11
Section 5(4)-- 12
insert-- 13
`(da) provide for workers or prospective workers not to be 14
prejudiced in employment because they have sustained 15
injury to which this Act or a former Act applies; and'. 16
Clause 60 Amendment of s 285 (Consequence of failure to give 17
information) 18
Section 285(1), `the other party'-- 19
omit, insert-- 20
`another party'. 21
6 Holidays Act 1983, section 2 (Public holidays) or 3 (Minister may change public
holidays)
s 61 34 s 63
Industrial Relations and Other Acts Amendment Bill
2005
Clause 61 Replacement of ch 14, pt 1, hdg 1
Chapter 14, part 1, heading-- 2
omit, insert-- 3
`Part 1 Access to documents and 4
information'. 5
Clause 62 Amendment of s 572 (Claimant or worker entitled to 6
obtain certain documents) 7
Section 572(3)-- 8
insert-- 9
`(d) the document holder suspects on reasonable grounds 10
that the claimant or worker requires the document for a 11
purpose prohibited by section 572A.'. 12
Clause 63 Insertion of new s 572A 13
After section 572-- 14
insert-- 15
`572A Access to particular documents for employment 16
purposes prohibited 17
`(1) A person must not, for a purpose relating to the employment 18
of a worker by the person or another person-- 19
(a) obtain or attempt to obtain a workers' compensation 20
document about the worker; or 21
(b) use or attempt to use a workers' compensation 22
document about the worker. 23
Maximum penalty--100 penalty units. 24
`(2) However, subsection (1) does not apply to a workers' 25
compensation document relating to the worker's capacity to 26
work if the document is necessary to secure the worker's 27
rehabilitation or early return to work under chapter 4.7 28
7 Chapter 4 (Injury management)
s 64 35 s 65
Industrial Relations and Other Acts Amendment Bill
2005
`(3) In this section-- 1
employment means any process for selecting a person for 2
employment or for deciding whether the employment of a 3
person is to continue. 4
worker means a person who is or was a claimant or worker for 5
any provision of this Act or a former Act. 6
workers' compensation document, about a worker, means 7
any document relating to the worker's application for 8
compensation or claim for damages under this Act or a former 9
Act.'. 10
Clause 64 Amendment of s 573 (Disclosure of information) 11
Section 573, heading-- 12
omit, insert-- 13
`573 Permissible disclosure of information'. 14
Clause 65 Insertion of new s 585 15
Chapter 14, part 5, before section 586-- 16
insert-- 17
`585 Entitlements to compensation under contract of 18
employment prohibited and void 19
`(1) A contract of employment can not include a provision for 20
accident pay, or other payment, on account of a worker 21
sustaining an injury. 22
`(2) A provision of a contract of employment is of no force or 23
effect to the extent it provides for payment of accident pay, or 24
other payment, on account of a worker sustaining an injury. 25
`(3) In this section-- 26
contract of employment means a contract of service or a 27
contract with an individual in the circumstances mentioned in 28
s 66 36 s 66
Industrial Relations and Other Acts Amendment Bill
2005
schedule 2, part 18 but does not include an industrial 1
instrument.9'. 2
Clause 66 Insertion of new ch 17 3
After chapter 16-- 4
insert-- 5
`Chapter 17 Transitional provision for 6
Industrial Relations and 7
Other Acts Amendment Act 8
2005 9
`626 Compensation under contracts of employment 10
`(1) Section 585, as inserted by the Industrial Relations and Other 11
Acts Amendment Act 2005, applies only to-- 12
(a) a contract of employment entered into on or after the 13
commencement of this section; or 14
(b) for a contract of employment entered into before the 15
commencement of this section--an amendment to the 16
contract of employment made on or after the 17
commencement that inserts into the contract a provision 18
about accident pay, or other payment, on account of a 19
worker sustaining an injury. 20
`(2) In this section-- 21
contract of employment see section 585.'. 22
8 Schedule 2 (Who is a worker in particular circumstances), part 1 (Persons who are
workers)
9 For industrial instruments, see section 107D (Entitlements to compensation under
industrial instrument generally prohibited and void).
37
Industrial Relations and Other Acts Amendment Bill
2005
© State of Queensland 2005
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