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This is a Bill, not an Act. For current law, see the Acts databases.
Queensland
INDUSTRIAL RELATIONS
BILL 1999
Queensland
INDUSTRIAL RELATIONS BILL 1999
TABLE OF PROVISIONS
Section Page
CHAPTER 1--PRELIMINARY
1 Short title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
2 Commencement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
3 Principal object of this Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
4 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
5 Who is an employee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
6 Who is an employer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
7 What is an industrial matter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
8 Provisions about appointments and procedures of committees . . . . . . . . . . 39
CHAPTER 2--GENERAL EMPLOYMENT CONDITIONS
PART 1--GENERAL
Division 1--Working time
9 Working time . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Division 2--Sick leave
10 Entitlement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Division 3--Annual leave
11 Entitlement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
12 Taking annual leave . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
13 Payment for annual leave . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
14 Payment for annual leave on termination of employment . . . . . . . . . . . . . . 43
Division 4--Public holidays
15 Public holidays . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
2
Industrial Relations
PART 2--FAMILY LEAVE
Division 1--Parental leave
16 Who this division does not apply to . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
17 Definitions for pt 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
18 Entitlement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
19 Notices and documents--maternity leave . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
20 Notices and documents--parental leave other than maternity or
adoption leave . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
21 Notices and documents--adoption leave . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
22 Reasons not to give notice or documents . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
23 Notice of change to situation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
24 Continuity of service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
25 Spouses not to take parental leave at same time . . . . . . . . . . . . . . . . . . . . . 51
26 Cancelling parental leave . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
27 Parental leave with other leave . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
28 Interruption of parental leave by return to work . . . . . . . . . . . . . . . . . . . . . . 52
29 Extending period of parental leave . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
30 Shortening period of parental leave . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
31 Effect on parental leave of ceasing to be the primary caregiver . . . . . . . . . 53
32 Return to work after parental leave etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
33 Employer's obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
34 Dismissal because of pregnancy or parental leave . . . . . . . . . . . . . . . . . . . . 55
35 Replacement employees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
36 Transfer to a safe job . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
37 Special maternity leave and sick leave . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
38 Special adoption leave . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
Division 2--Carer's leave
39 Entitlement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
Division 3--Bereavement leave
40 Entitlement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
41 This part overrides less favourable conditions . . . . . . . . . . . . . . . . . . . . . . . . 58
3
Industrial Relations
PART 3--LONG SERVICE LEAVE
Division 1--Definitions for pt 3
42 Definitions for pt 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
Division 2--Employees generally
43 Entitlement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
44 Working out continuity of service for service before 23 June 1990 . . . . . . . 60
45 Taking long service leave . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
46 Payment for long service leave . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
Division 3--Casual employees
47 Continuity of service--additional considerations for casual employees . . . 62
48 Taking long service leave--alternative provision for casual employees . . 63
49 Payment for long service leave . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
Division 4--Seasonal employees
50 Entitlement--employees in sugar industry and meat works . . . . . . . . . . . . . 65
51 Taking long service leave--employees in sugar industry and
meat works . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
52 Other seasonal employees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
Division 5--Miscellaneous
53 Payment instead of long service leave on termination . . . . . . . . . . . . . . . . . 67
54 Payment instead of long service leave on death . . . . . . . . . . . . . . . . . . . . . . 67
55 Continuity not broken by service in Reserve Forces . . . . . . . . . . . . . . . . . . 68
56 Recognition of certain exemptions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
57 Person may be "employer" and "employee" . . . . . . . . . . . . . . . . . . . . . . . . 68
PART 4--REVIEW
58 Review of general employment conditions . . . . . . . . . . . . . . . . . . . . . . . . . . 68
PART 5--EQUAL REMUNERATION FOR WORK OF EQUAL
OR COMPARABLE VALUE
59 Definition for pt 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
60 Orders requiring equal remuneration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
61 Orders only on application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
62 When commission must and may only make order . . . . . . . . . . . . . . . . . . . 70
63 Immediate or progressive introduction of equal remuneration . . . . . . . . . . . 70
64 Employer not to reduce remuneration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
4
Industrial Relations
65 Part does not limit other rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
66 Applications under this part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
PART 6--CONTINUITY OF SERVICE AND EMPLOYMENT
67 Definition for pt 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
68 How part applies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
69 Continuity of service--transfer of calling . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
70 Continuity of service--apprentices or trainees . . . . . . . . . . . . . . . . . . . . . . . 72
71 Continuity of service--generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
CHAPTER 3--DISMISSALS
PART 1--EXCLUSIONS
72 Who this chapter does not apply to . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
PART 2--UNFAIR DISMISSALS
73 When is a dismissal unfair . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
74 Application for reinstatement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
75 Conciliation before application heard . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
76 Arbitration when conciliation unsuccessful . . . . . . . . . . . . . . . . . . . . . . . . . . 80
77 Matters to be considered in deciding an application . . . . . . . . . . . . . . . . . . 80
78 Remedies--reinstatement or re-employment . . . . . . . . . . . . . . . . . . . . . . . . 81
79 Remedies--compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
80 Sanctions for unfair dismissal--invalid reason . . . . . . . . . . . . . . . . . . . . . . . 82
81 Further orders if employer fails to reinstate . . . . . . . . . . . . . . . . . . . . . . . . . . 82
82 Effect of order on leave . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
PART 3--REQUIREMENTS FOR DISMISSAL
83 What employer must do to dismiss employee . . . . . . . . . . . . . . . . . . . . . . . . 83
84 Minimum period of notice required . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
85 Minimum amount of compensation required . . . . . . . . . . . . . . . . . . . . . . . . . 85
PART 4--DISMISSAL OF 15 OR MORE EMPLOYEES
86 When this part applies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
87 Orders about severance allowances and other separation benefits . . . . . . . 85
88 Employer must give notice of proposed dismissals . . . . . . . . . . . . . . . . . . . . 86
89 Employer must consult with employee organisations about dismissals . . . 87
90 Time within which application under this part must be made . . . . . . . . . . . 88
5
Industrial Relations
PART 5--PROTECTION OF INJURED EMPLOYEES
91 Definitions for pt 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
92 Wages to be paid for the day employee injured . . . . . . . . . . . . . . . . . . . . . . 88
93 Dismissal of injured employees only after 6 months . . . . . . . . . . . . . . . . . . 89
94 Replacement for injured employee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
95 Reinstatement of injured employees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
96 Preservation of employee's rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
PART 6--STAND-DOWN OF EMPLOYEES
97 Employee stood-down in December then re-employed in January . . . . . . . 91
98 Permissible stand-down of employee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
PART 7--GENERAL
99 Chapter does not limit other rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
100 Inconsistent instruments and orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
CHAPTER 4--FREEDOM OF ASSOCIATION
PART 1--PRELIMINARY
101 Main purposes of ch 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
102 Definitions for ch 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
103 Meaning of "industrial action" for ch 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
104 Meaning of "engaging in" conduct for a "prohibited reason" for ch 4 . . . . 94
PART 2--PROHIBITED CONDUCT
105 Prohibited conduct for employers and principals . . . . . . . . . . . . . . . . . . . . . 96
106 Prohibited conduct for employees and independent contractors . . . . . . . . . 97
107 Prohibited conduct for industrial associations . . . . . . . . . . . . . . . . . . . . . . . . 97
108 Certain actions by representative not prohibited conduct . . . . . . . . . . . . . . 97
109 Provision requiring or permitting prohibited conduct . . . . . . . . . . . . . . . . . . 98
110 Encouragement provisions permitted . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98
PART 3--EXEMPTION FROM MEMBERSHIP
111 Who may apply for exemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98
112 Procedure for hearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98
113 Deciding application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99
114 How payment must be applied . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99
115 Exemption certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99
6
Industrial Relations
116 Expiry of exemption certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100
PART 4--CIVIL REMEDIES
117 Who may apply . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100
118 Conciliation required before hearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100
119 Right to be heard . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
120 Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
121 Payment of penalty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
122 Evidence of prohibited conduct . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
CHAPTER 5--AWARDS
PART 1--FORM AND APPLICATION
123 Form, effect and term of award . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103
124 Persons bound by award . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103
PART 2--COMMISSION'S POWERS
125 Making, amending and repealing awards . . . . . . . . . . . . . . . . . . . . . . . . . . . 104
126 Content of awards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105
127 Dispute resolution procedures in each award . . . . . . . . . . . . . . . . . . . . . . . . 106
128 Awards that fix wage rates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106
129 Flow-on of certified agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107
130 Review of awards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107
131 Review of industrial instruments referred by the
Anti-Discrimination Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107
PART 3--EXEMPTIONS
132 Exemptions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108
PART 4--GENERAL
133 Enforceability of awards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108
134 Effect of appeals on awards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108
135 Inconsistency between awards and contracts . . . . . . . . . . . . . . . . . . . . . . . . 109
PART 5--WAGES AND EMPLOYMENT CONDITIONS FOR
APPRENTICES AND TRAINEES
136 Apprentice's and trainee's employment conditions . . . . . . . . . . . . . . . . . . . 109
137 Order setting minimum wages and conditions . . . . . . . . . . . . . . . . . . . . . . . . 110
138 Order setting tool allowance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111
7
Industrial Relations
139 Termination of employment before apprenticeship or traineeship
cancelled or completed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112
PART 6--LABOUR MARKET PROGRAMS
140 Orders for wages and employment conditions . . . . . . . . . . . . . . . . . . . . . . . . 112
CHAPTER 6--AGREEMENTS
PART 1--CERTIFIED AGREEMENTS
Division 1--Making agreements
141 Certified agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114
142 Who may make certified agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115
143 Proposed parties to be advised when agreement is proposed . . . . . . . . . . . . 115
144 What is to be done when an agreement is proposed . . . . . . . . . . . . . . . . . . . 116
145 Negotiations for project agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117
146 Negotiations must be in good faith . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118
147 Peace obligation period to assist negotiations . . . . . . . . . . . . . . . . . . . . . . . 118
148 Assistance in negotiating by conciliation . . . . . . . . . . . . . . . . . . . . . . . . . . . 118
149 Arbitration if conciliation unsuccessful . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120
150 Determinations made under s 149 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121
151 Steps to be repeated if proposed agreement is amended . . . . . . . . . . . . . . . 122
152 Certificate as to requested representation . . . . . . . . . . . . . . . . . . . . . . . . . . . 123
Division 2--Certifying agreements
153 Time for applying for certification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123
154 Notice of hearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123
155 Right of employee organisation to be heard . . . . . . . . . . . . . . . . . . . . . . . . . 123
156 Certifying an agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 124
157 When commission to refuse to certify an agreement . . . . . . . . . . . . . . . . . . 126
158 Other options open to commission instead of refusing to certify
agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127
159 Procedures for preventing and settling disputes . . . . . . . . . . . . . . . . . . . . . . 128
Division 3--No-disadvantage test
160 When an agreement passes the no-disadvantage test . . . . . . . . . . . . . . . . . . 129
161 Special case--employee eligible for supported wage system . . . . . . . . . . . 129
162 Special case--employee undertaking approved apprenticeship or
traineeship . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 130
8
Industrial Relations
163 Deciding designated awards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131
Division 4--Effect of certified agreements
164 When a certified agreement is in operation . . . . . . . . . . . . . . . . . . . . . . . . . 131
165 Certified agreement's effect on awards, agreements or orders . . . . . . . . . . 132
166 Persons bound . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 132
167 Successor employers bound . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133
Division 5--Extending, amending or terminating certified
agreements
168 Extending a certified agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 134
169 Amending a certified agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 134
170 Amendment if discrimination between unionists and non-unionists . . . . . . 136
171 Other options open to commission instead of refusing to approve
amendment of agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137
172 Terminating certified agreement on or before its nominal expiry date . . . . 137
173 Terminating agreement after its nominal expiry date . . . . . . . . . . . . . . . . . . 138
Division 6--Industrial action
174 Protected industrial action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 138
175 Notice of industrial action to be given . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 140
176 Secret ballot about taking industrial action . . . . . . . . . . . . . . . . . . . . . . . . . . 140
177 Industrial action must be properly authorised . . . . . . . . . . . . . . . . . . . . . . . . 141
178 No protection if certification application not timely . . . . . . . . . . . . . . . . . . 142
179 Employer not to dismiss employee for engaging in protected
industrial action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142
180 Remedies if employee dismissed etc. for engaging in protected
industrial action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 143
181 When industrial action must not be taken . . . . . . . . . . . . . . . . . . . . . . . . . . . 144
Division 7--Penalty provisions
182 Penalty provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 144
183 Penalties for contravening penalty provisions . . . . . . . . . . . . . . . . . . . . . . . . 145
Division 8--General
184 Secret ballot on valid majority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 147
185 Coercion of persons to make, amend or terminate certified
agreements etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 147
186 Complementary laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 148
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PART 2--QUEENSLAND WORKPLACE AGREEMENTS
Division 1--Preliminary
187 Definitions for pt 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 148
188 Proposed QWAs and ancillary documents--interpretation . . . . . . . . . . . . . 150
189 Functions and powers of commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150
Division 2--General rules about QWAs and ancillary documents
190 QWAs and ancillary documents only have effect as provided by
this part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 151
191 Collective QWAs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 151
Division 3--Making, amending or terminating a QWA
192 Employer and employee may make a QWA . . . . . . . . . . . . . . . . . . . . . . . . . 151
193 Matters to be included in QWA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 152
194 Nominal expiry date of QWA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 153
195 Period of operation of QWA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 153
196 Bargaining agents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 154
197 Amending a QWA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 155
198 Terminating a QWA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 155
Division 4--Filing QWAs and ancillary documents
199 Filing QWAs and ancillary documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 156
200 Filing requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 156
201 Employer's declaration must be accurate . . . . . . . . . . . . . . . . . . . . . . . . . . . 157
Division 5--Approving QWAs and ancillary documents
202 Additional approval requirements for QWA and ancillary documents . . . . 157
203 Approving QWA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 159
204 Approving amendment agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 160
205 Approving other ancillary documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 161
206 Commission must issue approval or refusal notice . . . . . . . . . . . . . . . . . . . . 161
207 Undertakings taken to be included in QWAs . . . . . . . . . . . . . . . . . . . . . . . . 162
208 Commission to issue copies of approved QWAs and ancillary
documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 162
Division 6--No-disadvantage test
209 When does a QWA pass the no-disadvantage test . . . . . . . . . . . . . . . . . . . . 162
210 Special case--employee eligible for supported wage system . . . . . . . . . . . 163
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211 Special case--employee undertaking approved apprenticeship or
traineeship . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 163
212 Deciding designated awards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 164
Division 7--Effect of QWAs
213 QWA's effect on awards, certified agreements or orders . . . . . . . . . . . . . . . 165
214 Successor employers bound . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 165
215 Parties must not contravene QWA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 166
216 Conciliation for agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 166
217 Industrial action by party to QWA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 166
Division 8--Penalty provisions and remedies
218 Penalties for contravening this part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 166
219 Damages for contravention of QWA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 167
220 Compensation to new employee for shortfall in entitlements . . . . . . . . . . . 167
221 Injunctions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 168
Division 9--General
222 Hindering QWA negotiations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 168
223 Persons must not apply duress or make false statements in
connection with QWA etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 169
224 Employer must give copy of documents to employee . . . . . . . . . . . . . . . . . 169
225 Intervention not permitted . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 169
226 Reports and advice about development in making QWAs . . . . . . . . . . . . . . 169
227 Evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 170
228 Signature for corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 170
CHAPTER 7--INDUSTRIAL DISPUTES
PART 1--NOTICE OF INDUSTRIAL DISPUTE
229 Notice of industrial dispute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 171
PART 2--ACTION FOR SETTLING INDUSTRIAL DISPUTES
230 Action on industrial dispute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 172
231 Mediation by commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 173
232 Compulsory conference . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 173
233 Enforcing commission's orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 174
234 Remedies on show cause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 175
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PART 3--BALLOTS
235 Secret ballot on strike action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 176
236 Effect of ballot adverse to strike . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 177
PART 4--INDUSTRIAL ACTION
237 Indemnity against agent's unauthorised actions . . . . . . . . . . . . . . . . . . . . . . 178
238 Payments for strikes can not be compelled . . . . . . . . . . . . . . . . . . . . . . . . . . 179
239 Orders the commission may make . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 180
240 Commission not to deal with claims for payments for strikes . . . . . . . . . . . 180
241 Right to refuse to work if imminent health or safety risk . . . . . . . . . . . . . . . 181
CHAPTER 8--INDUSTRIAL TRIBUNALS AND REGISTRY
PART 1--INDUSTRIAL COURT
Division 1--Industrial Court of Queensland
242 Continuance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 181
Division 2--President
243 President of the court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 181
244 When a judge is appointed as president . . . . . . . . . . . . . . . . . . . . . . . . . . . . 182
245 When president holds office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 182
246 Acting president of the court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 183
Division 3--Jurisdiction and powers of the court
247 Constitution of court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 183
248 Court's jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 184
249 Court's interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 184
250 Court may refuse to proceed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 185
251 Contempt of court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 185
Division 4--President's annual report
252 President's annual report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 185
Division 5--President's advisory committee
253 Advisory committee established . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 186
254 Functions of advisory committee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 187
PART 2--INDUSTRIAL RELATIONS COMMISSION
Division 1--Continuance and composition
255 Continuance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 187
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256 Composition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 187
Division 2--Membership of the commission
257 President of the commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 188
258 Vice president of the commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 188
259 Commissioners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 188
260 When commissioner holds office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 189
261 Acting vice president, commissioner administrator or other
commissioner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 190
262 Restrictions on appointment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 190
263 Removal of commissioners from office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 190
Division 3--The commission
264 Administrative responsibilities for the commission and registry . . . . . . . . . 191
265 Commission's jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 191
266 Commission to prevent discrimination in employment . . . . . . . . . . . . . . . . 193
267 Commission's jurisdiction is exclusive . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 193
268 Commission may refuse to proceed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 193
269 President or commissioner administrator to consider efficiencies
that may be achieved by allocating matters to dual commissioners . . . . . . 193
270 Reallocation of commission's work . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 194
271 Commission may continue to hear reallocated work without
re-hearing evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 194
272 Decision of full bench . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 194
Division 4--Commission's functions and powers
273 Commission's functions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 194
274 General powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 195
275 Power to declare persons to be employees . . . . . . . . . . . . . . . . . . . . . . . . . . 196
276 Power to amend or void contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 197
277 Power to grant injunctions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 199
278 Power to recover unpaid wages and superannuation contribution etc. . . . . 200
279 Orders about representation rights of employee organisations . . . . . . . . . . . 203
280 Procedures for reopening . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 205
281 Reference to full bench . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 206
282 Case stated to court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 207
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283 Power to enter and inspect . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 207
284 Interpretation of industrial instruments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 208
285 Conducting a secret ballot . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 209
286 Other powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 210
287 General rulings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 210
288 Statement of policy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 212
PART 3--INDUSTRIAL MAGISTRATES
Division 1--Industrial Magistrates Court
289 Industrial Magistrates Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 212
Division 2--Industrial magistrates
290 Office of Industrial Magistrate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 213
Division 3--Constitution and jurisdiction of Industrial Magistrates
Court
291 Constitution of Industrial Magistrates Court . . . . . . . . . . . . . . . . . . . . . . . . . 213
292 Magistrate's jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 213
293 Magistrates' jurisdiction is exclusive . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 214
PART 4--INDUSTRIAL REGISTRY
Division 1--Industrial registry
294 Industrial registry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 215
295 Functions of the registry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 215
296 Seal of the registry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 215
Division 2--Industrial registrar and staff
297 Appointment of registrar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 215
298 Termination of appointment of registrar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 216
299 Functions and powers of registrar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 216
300 Deputy registrar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 217
301 Delegation by registrar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 217
302 Acting registrar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 217
303 Staff . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 217
304 Officers of the court and commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 217
PART 5--ARRANGEMENTS WITH OTHER AUTHORITIES
Division 1--Member may also be member of Australian commission
305 Member may hold other appointment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 218
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Division 2--Dual commissioners
306 Appointment of Commonwealth official as commissioner . . . . . . . . . . . . . . 218
307 Role of dual commissioner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 219
Division 3--References to Commonwealth official
308 Reference of matter to Commonwealth official . . . . . . . . . . . . . . . . . . . . . . 219
Division 4--Conferences and joint sessions with industrial
authorities
309 Conferences with industrial authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 220
310 Joint sessions with industrial authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . 220
311 Similar matters before full bench and industrial authority . . . . . . . . . . . . . . 221
312 Member's powers in joint session . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 221
313 President may decide matter not to be dealt with in joint session . . . . . . . 221
Division 5--Other functions etc. and arrangements
314 Functions and powers vested in commission by other jurisdictions . . . . . . 222
315 Arrangements with Commonwealth public service . . . . . . . . . . . . . . . . . . . . 222
PART 6--PROCEEDINGS OF COURT, COMMISSION,
MAGISTRATES AND REGISTRAR
Division 1--Definitions
316 Definitions for pt 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 223
Division 2--Starting proceedings and service of process
317 Starting proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 223
318 Service of process . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 224
Division 3--Conduct of proceedings
319 Representation of parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 225
320 Basis of decisions of the commission and magistrates . . . . . . . . . . . . . . . . . 226
321 Competence and compellability of witnesses . . . . . . . . . . . . . . . . . . . . . . . . 227
322 Intervention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 228
323 Adjournment by registrar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 228
324 State employee to give information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 228
Division 4--Powers
325 Exercise of commission's powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 229
326 Interlocutory proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 229
327 Power to order inquiry or taking of evidence . . . . . . . . . . . . . . . . . . . . . . . . . 230
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328 Power to administer oath . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 230
329 Powers incidental to exercise of jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . 231
330 Power to obtain data and expert evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . 232
Division 5--Decisions and enforcement
331 Decisions generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 233
332 Reserved decisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 233
333 Commission decisions to be in plain English . . . . . . . . . . . . . . . . . . . . . . . . 234
334 Extent of decisions and their execution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 234
335 Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 235
336 Recovery of amounts under orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 235
Division 6--Protections and immunities
337 Protection and immunities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 236
Division 7--Rules and practice
338 Rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 236
339 Directions about practice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 238
CHAPTER 9--APPEALS
Division 1--Appeals to Court of Appeal
340 Appeal from court or full bench . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 238
Division 2--Appeals to court
341 Appeal from commission, magistrate or registrar . . . . . . . . . . . . . . . . . . . . . 239
Division 3--Appeals to full bench
342 Appeal from commission, magistrate or registrar . . . . . . . . . . . . . . . . . . . . . 240
Division 4--Appeals to commission
343 Appeal from registrar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 241
344 Appeal against stand-downs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 242
Division 5--General
345 Definition for div 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 243
346 Time limited for appeal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 243
347 Stay of decision appealed against . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 243
348 Nature of appeal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 243
349 Finality of decisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 244
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CHAPTER 10--ENFORCEMENT
Division 1--Appointment
350 Appointment of inspectors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 245
351 Functions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 245
352 Powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 246
Division 2--General powers
353 Entry to places . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 246
354 General powers after entering workplaces . . . . . . . . . . . . . . . . . . . . . . . . . . . 247
355 Power to require documents to be produced . . . . . . . . . . . . . . . . . . . . . . . . . 248
356 Power to require information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 249
357 Power to require name and address . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 249
Division 3--Powers to claim and deal with unpaid amounts
358 Paying employee's wages etc. to inspector . . . . . . . . . . . . . . . . . . . . . . . . . . 250
359 Inspector's obligation for amounts paid on demand . . . . . . . . . . . . . . . . . . . 251
Division 4--General
360 Obstructing inspectors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 252
361 Impersonating inspectors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 253
362 Validity of inspector's conduct despite administrative contravention . . . . . 253
CHAPTER 11--RECORDS AND WAGES
PART 1--EMPLOYERS RECORDS
Division 1--Definitions
363 Definitions for pt 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 253
Division 2--Authorised industrial officers
364 Authorising industrial officers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 254
365 Revocation and suspending industrial officer's authorisation . . . . . . . . . . . 255
Division 3--Employers to keep certain records
366 Time and wages record--industrial instrument employees . . . . . . . . . . . . . 255
367 Time and wages record--non-industrial instrument employees . . . . . . . . . . 257
368 Employee register . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 258
369 Records to be kept in English . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 259
370 Notation of wages details . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 259
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Division 4--Power to inspect certain records
371 Inspection of time and wages record--inspector . . . . . . . . . . . . . . . . . . . . . . 260
372 Right of entry--authorised industrial officer . . . . . . . . . . . . . . . . . . . . . . . . . 261
373 Right to inspect and request information--authorised industrial officer . . . 262
374 Inspection of employee register and index--registrar . . . . . . . . . . . . . . . . . . 264
375 Inspection of time and wages book--employees . . . . . . . . . . . . . . . . . . . . . 264
PART 2--WAGES AND OCCUPATIONAL SUPERANNUATION
Division 1--Interpretation
376 Definitions for pt 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 265
377 References to service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 266
Division 2--Protection for wages
378 Wages are first charge on amounts payable to employer . . . . . . . . . . . . . . . 266
379 Assignment of amount payable ineffectual against claims for wages . . . . . 266
380 Amounts paid or payable to employer to be applied in payment of
wages . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 267
381 Attachment notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 268
382 Effect of attachment notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 268
383 Orders for payment by prime contractor or clerk of the court . . . . . . . . . . . 269
384 Employees to be paid according to when attachment notices are served . . 270
385 Employee may sue prime contractor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 271
386 Cessation of attachment not to prejudice prime contractor . . . . . . . . . . . . . 271
387 Discharge by employee for payment received . . . . . . . . . . . . . . . . . . . . . . . 272
388 Remedy of subcontractor's employees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 272
389 Prime contractor's right to reimbursement . . . . . . . . . . . . . . . . . . . . . . . . . . . 272
390 Magistrate may hear claim for wages ex parte . . . . . . . . . . . . . . . . . . . . . . . 273
Division 3--Paying and recovering wages
391 Wages etc. to be paid without deduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . 273
392 Paying apprentices or trainees for course time . . . . . . . . . . . . . . . . . . . . . . . 274
393 Paying wages . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 275
394 Contract not to stipulate mode of spending wages . . . . . . . . . . . . . . . . . . . . 276
395 Payment of unpaid wages if employee's whereabouts unknown . . . . . . . . . 277
396 Overpaid wages . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 277
397 Deduction of wages in lieu of notice of termination . . . . . . . . . . . . . . . . . . . 278
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398 Minor may recover unpaid wages . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 278
399 Recovery of unpaid wages etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 278
400 Enforcement of magistrate's order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 280
Division 4--Wages in rural and mining industries
401 Wages recoverable against mortgagee if mortgagor defaults . . . . . . . . . . . 280
402 Distress warrant levied on property of mortgagor or mortgagee . . . . . . . . . . 282
403 Application of ss 401 and 402 to mines . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 282
404 Priority in payment of wages earned in mine . . . . . . . . . . . . . . . . . . . . . . . . 283
Division 5--Occupational superannuation
405 Agreement about superannuation fund . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 284
406 Contributing occupational superannuation . . . . . . . . . . . . . . . . . . . . . . . . . . . 285
407 Power to order contribution to particular fund . . . . . . . . . . . . . . . . . . . . . . . . 285
408 Recovery of unpaid superannuation contribution . . . . . . . . . . . . . . . . . . . . . 286
CHAPTER 12--INDUSTRIAL ORGANISATIONS
PART 1--PRELIMINARY
409 Definitions for ch 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 287
410 Meaning of "corporation" for ch 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 290
411 Meaning of "counterpart federal body" for ch 12 . . . . . . . . . . . . . . . . . . . . . 291
412 Meaning of "office" for ch 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 292
PART 2--REGISTRATION
Division 1--Registration applications
413 Application is to commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 293
414 Who may apply . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 293
415 General requirements for applications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 293
416 Additional requirements for employee organisation application . . . . . . . . . 294
417 Additional requirements for employer organisation applications . . . . . . . . . 294
Division 2--Hearing of registration applications
418 Right to object . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 295
419 Registration criteria for all applications . . . . . . . . . . . . . . . . . . . . . . . . . . . . 295
420 Additional criteria for registration as employee organisation . . . . . . . . . . . 296
421 Additional criteria for registration as employer organisation . . . . . . . . . . . . 297
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Division 3--Grant of application
422 Grant of application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 297
423 Incorporation on registration if not already incorporated . . . . . . . . . . . . . . . 298
Division 4--Registered name and office
424 Registered name of organisation that is not a corporation . . . . . . . . . . . . . . 298
425 Registered office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 299
Division 5--Miscellaneous
426 Registrar's functions for register and rules . . . . . . . . . . . . . . . . . . . . . . . . . . . 299
427 Change of callings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 299
PART 3--GENERAL CONTENTS OF RULES
Division 1--Requirement to have rules
428 Organisation must have complying rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . 300
Division 2--General requirements for contents
429 Requirements for all organisations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 300
430 Additional requirements for organisation that is not a corporation . . . . . . . 301
431 Rules must give conditions for loans, grants and donations . . . . . . . . . . . . . 302
Division 3--Permitted contents
432 Permitted contents--general . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 303
433 Filling casual vacancies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 303
434 Mortality benefit fund . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 303
Division 4--Restrictions on contents
435 General restrictions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 304
436 Maximum office term for organisation that is not a corporation . . . . . . . . . 304
PART 4--ELECTION RULES
Division 1--Preliminary
437 Part does not apply to corporations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 305
438 Meaning of "direct voting system" for pt 4 . . . . . . . . . . . . . . . . . . . . . . . . . . 305
439 Meaning of "collegiate electoral system" for pt 4 . . . . . . . . . . . . . . . . . . . . 305
Division 2--General requirements
440 General requirement of transparency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 306
441 Rules must provide for elections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 306
442 Direct voting or collegiate electoral system must be used . . . . . . . . . . . . . 306
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Division 3--Direct voting systems
Subdivision 1--Preliminary
443 Application of div 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 306
Subdivision 2--Requirements for direct voting systems
444 General requirements for direct voting system . . . . . . . . . . . . . . . . . . . . . . . 306
445 Required contents--ballots . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 307
446 Compulsory voting permitted . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 308
Subdivision 3--Alternative types of secret ballot
447 Approval application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 308
448 Consideration of application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 309
449 Grant of approval . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 309
450 Cancellation of approval . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 309
Division 4--Collegiate electoral systems
Subdivision 1--Preliminary
451 Application of div 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 310
Subdivision 2--Requirements for collegiate electoral systems
452 Restriction on persons who may be elected by electoral college . . . . . . . . 310
453 Requirements for second or subsequent stage . . . . . . . . . . . . . . . . . . . . . . . . 310
Division 5--Model election rules
454 Model election rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 311
455 Model election rules may be adopted . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 311
456 Adoption without change . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 311
457 Effect of adoption without change . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 311
458 Model rules apply if election rules do not comply with pt 4 . . . . . . . . . . . . 311
PART 5--VALIDITY AND COMPLIANCE WITH RULES
459 Powers of court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 312
460 Who may apply . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 312
461 Financial help for application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 312
462 Interim orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 313
463 Hearing application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 313
464 Effect of declaration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 313
465 Direction must be complied with . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 313
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PART 6--AMENDMENT OF RULES
Division 1--Amendments by commission or registrar
466 Breach of demarcation dispute undertaking . . . . . . . . . . . . . . . . . . . . . . . . . 314
467 When registrar may amend rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 314
468 Amendment to cure noncompliance if rule declared void . . . . . . . . . . . . . . 315
469 How amendment must be made . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 315
Division 2--Amendments by organisation
Subdivision 1--Name or eligibility rule amendments
470 Application of sdiv 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 316
471 Requirements for amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 316
472 Approval to change `union' to `organisation' in name . . . . . . . . . . . . . . . . . 316
473 Approval for other name amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 316
474 Approval for eligibility rule amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . 317
475 When amendment takes effect . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 318
476 Registrar must record amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 318
Subdivision 2--Other rule amendments
477 Application of sdiv 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 319
478 When amendment may be made . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 319
479 When amendment takes effect . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 319
PART 7--CONDUCT OF ELECTIONS
Division 1--Preliminary
480 Part does not apply to corporations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 320
Division 2--Preparatory steps
481 Organisation or branch must file prescribed election information . . . . . . . . 320
482 Registrar must arrange for elections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 320
Division 3--Conduct of elections
483 Electoral commission to conduct elections . . . . . . . . . . . . . . . . . . . . . . . . . . 320
484 Organisation's rules generally to be complied with . . . . . . . . . . . . . . . . . . . 321
485 Action or directions by electoral officer . . . . . . . . . . . . . . . . . . . . . . . . . . . . 321
486 Substitute electoral officer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 321
487 Death of candidate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 321
488 Election result report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 321
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489 Election costs to be paid by State . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 322
490 Ballot records must be preserved . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 322
Division 4--Offences about conduct of elections
491 Using organisation's resources for election purposes . . . . . . . . . . . . . . . . . . 322
492 Obstructing conduct of election . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 322
493 Failing to comply with electoral officer's direction . . . . . . . . . . . . . . . . . . . 322
494 Obstructing electoral officer's direction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 323
495 Offences about ballots . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 323
496 Disadvantaging candidates etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 324
497 Unauthorised access to ballot paper . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 324
PART 8--ELECTION INQUIRIES
Division 1--Preliminary
498 Part does not apply to corporations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 325
Division 2--Applications and referrals to commission
499 Commission may conduct election inquiry . . . . . . . . . . . . . . . . . . . . . . . . . . 325
500 Who may apply . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 325
501 Requirements for application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 325
502 Referral to commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 326
Division 3--Investigations and interim orders
503 Commission may authorise registrar to investigate . . . . . . . . . . . . . . . . . . . 326
504 Interim orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 327
505 Person acting under interim order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 328
506 When interim order ends . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 328
Division 4--Conduct of election inquiries
507 Commission's functions and powers for inquiry . . . . . . . . . . . . . . . . . . . . . . 328
508 Orders if irregularity found . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 329
509 Enforcing pt 8 orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 329
Division 5--Offences about election inquiries
510 Disadvantaging applicant for inquiry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 330
511 Obstructing orders being carried out . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 330
Division 6--Miscellaneous
512 Financial help for application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 330
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513 Costs of fresh election ordered by inquiry . . . . . . . . . . . . . . . . . . . . . . . . . . . 331
PART 9--OFFICERS
Division 1--Preliminary
514 Definitions for pt 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 331
515 Meaning of "convicted person" for pt 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 332
Division 2--Disqualifications from candidature or holding office
Subdivision 1--Disqualifications
516 Persons under 18 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 333
517 Convicted persons--candidature . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 333
518 Convicted persons--holding office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 333
Subdivision 2--Applications for leave to hold office
519 Prospective candidates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 334
520 Existing office holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 334
521 Consideration of leave applications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 334
522 Disqualification period may be given if leave refused . . . . . . . . . . . . . . . . . 335
523 Leave or fixing of disqualification period does not affect div 2 . . . . . . . . . 335
Subdivision 3--Miscellaneous
524 Declaration about eligibility or ceasing to hold office . . . . . . . . . . . . . . . . . 335
525 Certificate evidence for div 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 336
Division 3--Officers' financial management duties
526 Application of div 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 336
527 Duty of honesty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 336
528 Duty of reasonable care and diligence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 336
529 Officers with material personal interests . . . . . . . . . . . . . . . . . . . . . . . . . . . . 337
530 Other duties not affected . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 337
PART 10--MEMBERSHIP
Division 1--Eligibility and admission to membership
531 Eligibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 338
532 Obligation to admit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 338
533 Obligation to give union card . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 339
534 Members under 18 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 339
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Division 2--Membership disputes
535 Court may decide . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 339
536 Deciding application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 340
Division 3--Membership subscriptions
537 Obligation to give receipt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 340
Division 4--Resignation
538 Division applies despite rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 341
539 Resignation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 341
540 Resignation if membership subscription unpaid for 2 years . . . . . . . . . . . . . 341
Division 5--Liabilities of member to organisation
541 Meaning of "member's liability" for div 5 . . . . . . . . . . . . . . . . . . . . . . . . . . 341
542 Recovering member's liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 342
543 Limit on liability after resignation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 342
PART 11--REGISTERS
544 Members and officers registers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 343
545 Requirements for members register . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 343
546 Officers register--required particulars . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 343
547 Annual obligation to file officers register . . . . . . . . . . . . . . . . . . . . . . . . . . . 344
548 Obligation to file officers register on change of office holder . . . . . . . . . . . 344
549 Inspection of registers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 344
550 Registrar's directions about registers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 344
PART 12--ACCOUNTS AND AUDIT
Division 1--Preliminary
551 Definitions for pt 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 345
552 Meaning of "financial year" for pt 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 345
553 Part applies to branches with separate financial affairs . . . . . . . . . . . . . . . . 346
Division 2--Accounting obligations
554 Obligation to keep accounting records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 346
555 Obligation to prepare accounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 347
556 Member may apply for prescribed information . . . . . . . . . . . . . . . . . . . . . . . 347
557 Registrar's directions about accounts and accounting records . . . . . . . . . . . 348
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Division 3--Audits
558 Obligation to have auditor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 348
559 How auditor may be removed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 349
560 Requirements for audit report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 349
561 Audit report must not be knowingly false or misleading . . . . . . . . . . . . . . . 350
562 Auditor must notify registrar of contravention . . . . . . . . . . . . . . . . . . . . . . . . 350
563 Auditor's powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 350
564 Auditors have qualified privilege . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 351
Division 4--Presentation and filing of audit reports
565 Obligation to present to general or committee meeting . . . . . . . . . . . . . . . . 352
566 Obligation to publish audit report and accounts . . . . . . . . . . . . . . . . . . . . . . 352
567 Notice of meetings to auditor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 352
568 Auditor may attend meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 353
569 False or misleading statements about reports . . . . . . . . . . . . . . . . . . . . . . . . 353
570 Report and accounts must be filed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 354
Division 5--Registrar's investigations and audits
571 Registrar's investigations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 354
572 Registrar's directions for investigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 355
573 Notice of contravention to organisation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 355
574 Court may order compliance with notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . 355
575 Registrar's examinations and audits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 356
576 Powers of registrar's auditor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 356
577 Costs of examination and audit by registrar's auditor . . . . . . . . . . . . . . . . . . 356
Division 6--Loans, grants and donations
578 Obligation to file details of loans, grants and donations . . . . . . . . . . . . . . . 357
579 Member may inspect statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 357
PART 13--EXEMPTIONS
Division 1--Exemptions for organisations with counterpart federal
bodies
Subdivision 1--Exemption from holding election
580 Exemption if federal election held . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 358
581 Obligation to notify change in federal election result . . . . . . . . . . . . . . . . . 359
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Subdivision 2--Exemption from keeping members or officers register
582 Exemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 359
583 Effect of exemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 360
584 Obligation to file copy of federal officers register . . . . . . . . . . . . . . . . . . . . 360
585 Obligation to give notice of change or contravention . . . . . . . . . . . . . . . . . . 361
Subdivision 3--Exemption from accounting or audit provisions
586 Who may apply . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 361
587 Grant of exemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 362
588 Obligation to file copies of federal audit documents . . . . . . . . . . . . . . . . . . 363
589 Obligation to give notice of change or contravention . . . . . . . . . . . . . . . . . . 363
Division 2--Exemption from accounting or audit obligations for
employer organisations that are corporations
590 Who may apply . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 364
591 Grant of exemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 364
592 Obligation to file copies of reports under other Act or law . . . . . . . . . . . . . 364
593 Obligation to notify registrar of contravention of other law . . . . . . . . . . . . . 365
Division 3--Exemptions from requirement that electoral commission
conduct election
Subdivision 1--Grant of exemption
594 Who may apply . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 366
595 Requirements for application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 366
596 Publication of application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 366
597 Hearing application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 367
Subdivision 2--Obligations if exemption granted
598 Application of sdiv 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 367
599 Obligation to appoint returning officer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 367
600 Election result report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 368
601 Ballot records must be preserved . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 368
Division 4--Cancellation of exemptions
602 Cancellation grounds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 369
603 Alternatives to cancellation for federal election exemption . . . . . . . . . . . . 370
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PART 14--VALIDATIONS
Division 1--Preliminary
604 Definitions for pt 14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 370
Division 2--Validations
605 Limitation on validations if substantial injustice . . . . . . . . . . . . . . . . . . . . . 370
606 Validation of certain acts done in good faith . . . . . . . . . . . . . . . . . . . . . . . . 371
607 Certain acts by person purporting to act in an office . . . . . . . . . . . . . . . . . . 372
608 Election not invalid because of compliance with order . . . . . . . . . . . . . . . . 372
609 Election not invalid because of contravention of pt 13, div 3, sdiv 2 . . . . . 372
610 Validation of certain events after 4 years . . . . . . . . . . . . . . . . . . . . . . . . . . . 373
611 Counterpart federal body not a ground for challenge . . . . . . . . . . . . . . . . . . 373
612 Amalgamations and withdrawals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 374
Division 3--Orders about invalidity or its effects
613 Commission may decide . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 375
614 Who may apply . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 375
615 Orders about effects of invalidity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 375
PART 15--AMALGAMATIONS AND WITHDRAWALS
Division 1--Preliminary
616 Definitions for pt 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 376
Division 2--Amalgamations
617 Amalgamation permitted only under div 2 . . . . . . . . . . . . . . . . . . . . . . . . . . 377
618 Commission to approve proposed amalgamation . . . . . . . . . . . . . . . . . . . . . 377
619 Additional regulation-making powers for amalgamations . . . . . . . . . . . . . . 377
620 Effect of amalgamation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 378
621 Holding office after amalgamation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 379
Division 3--Withdrawing from amalgamation
622 Requirements for withdrawal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 380
623 Commission to approve proposed withdrawal . . . . . . . . . . . . . . . . . . . . . . . . 380
624 Additional regulation-making powers for withdrawals . . . . . . . . . . . . . . . . . 380
625 Registration of constituent part on withdrawal . . . . . . . . . . . . . . . . . . . . . . . 381
626 Members of constituent part may join newly registered organisation . . . . . 381
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Division 4--Offences about amalgamation or withdrawal ballots
627 Obstructing conduct of ballot . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 381
628 Offences about ballots . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 382
629 Disadvantaging another to induce vote or omission to vote . . . . . . . . . . . . . 382
630 Unauthorised access to ballot paper . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 383
Division 5--Miscellaneous
631 Using resources for proposed amalgamation . . . . . . . . . . . . . . . . . . . . . . . . . 383
632 Costs of ballot conducted by electoral commission . . . . . . . . . . . . . . . . . . . 383
633 No action for defamation in certain cases . . . . . . . . . . . . . . . . . . . . . . . . . . . 384
634 Commission may resolve difficulties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 384
635 Registration of property transferred under pt 15 . . . . . . . . . . . . . . . . . . . . . . 384
636 Part applies despite laws or instruments . . . . . . . . . . . . . . . . . . . . . . . . . . . . 386
PART 16--DEREGISTRATION
Division 1--Preliminary
637 Definitions for pt 16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 386
Division 2--General deregistration provisions
Subdivision 1--Bringing deregistration proceedings
638 General deregistration grounds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 387
639 Who may bring deregistration proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . 388
Subdivision 2--Deciding deregistration proceedings
640 Hearing on ground other than industrial conduct . . . . . . . . . . . . . . . . . . . . . . 389
641 Hearing on industrial conduct ground . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 389
642 Deferral of deregistration for industrial conduct . . . . . . . . . . . . . . . . . . . . . . 390
643 When deferral order ends . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 391
644 Incidental orders or directions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 391
Division 3--Small organisations
645 Commission may review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 391
646 Deregistration proceedings by commission . . . . . . . . . . . . . . . . . . . . . . . . . . 391
647 Deciding proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 392
Division 4--Effects of deregistration
648 Application and purpose of div 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 392
649 When deregistration takes effect . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 392
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650 Effect on corporate status . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 392
651 No release of liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 393
652 Effect on property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 393
653 Effect on certain instruments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 394
PART 17--MISCELLANEOUS
654 Hearing to be given before making decision . . . . . . . . . . . . . . . . . . . . . . . . . 394
655 Notice of registrar's decisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 395
656 Falsely obtaining organisation's property . . . . . . . . . . . . . . . . . . . . . . . . . . . 396
657 Wrongfully applying organisation's property . . . . . . . . . . . . . . . . . . . . . . . . . 396
658 Stamp duty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 396
CHAPTER 13--OFFENCES
659 Disobeying penalty orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 397
660 Improper conduct towards member, magistrate or registrar . . . . . . . . . . . . . 397
661 Contempt by witness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 398
662 False or misleading statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 398
663 False or misleading documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 399
664 Obstructing officers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 400
665 Avoiding Act's obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 400
666 Non-payment of wages . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 401
667 Accepting reduced wages . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 402
668 Publishing statement about employment on reduced wages . . . . . . . . . . . . 402
669 Offence to offer or accept premiums . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 403
670 Contraventions of industrial instruments . . . . . . . . . . . . . . . . . . . . . . . . . . . . 404
671 Injunction restraining contraventions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 405
672 Persons considered parties to offences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 406
673 Executive officers must ensure corporation complies with ss 368,
406 and 666 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 406
674 Attempt to commit offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 407
675 References to making false or misleading statements . . . . . . . . . . . . . . . . . 407
676 References to engaging in conduct . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 407
CHAPTER 14--LEGAL PROCEEDINGS
677 General application of jurisdictional provisions . . . . . . . . . . . . . . . . . . . . . . 407
678 Evidentiary provisions affecting proceedings . . . . . . . . . . . . . . . . . . . . . . . . 408
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679 Confidential material tendered in evidence . . . . . . . . . . . . . . . . . . . . . . . . . 408
680 Evidentiary value of official records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 410
681 Proof of certain facts by statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 411
682 Evidentiary value of certificate of trustee of superannuation fund . . . . . . . 411
683 Offence proceedings generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 412
684 Organisations may start proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 413
685 Recovering amounts from organisations . . . . . . . . . . . . . . . . . . . . . . . . . . . . 413
CHAPTER 15--EMPLOYEES IN EMPLOYMENT OF STATE
686 Application of Act to State . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 414
687 Conflict between industrial instruments etc. and statutory decision . . . . . . 414
688 Protection of public property and officers . . . . . . . . . . . . . . . . . . . . . . . . . . . 415
689 Ambit of reference to State . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 416
690 Representation of public sector units . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 416
691 Industrial cause affecting diverse employees . . . . . . . . . . . . . . . . . . . . . . . . 416
CHAPTER 16--INDUSTRIAL RELATIONS ADVISORY
COMMITTEE
692 Committee established . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 417
693 Functions of committee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 418
CHAPTER 17--GENERAL
694 Employees working in and outside State . . . . . . . . . . . . . . . . . . . . . . . . . . . . 418
695 Student's work permit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 419
696 Aged or infirm persons permits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 419
697 Copy of award and certified agreement to be displayed . . . . . . . . . . . . . . . 420
698 Incorporating amendments in awards, certified agreements or orders . . . . . 420
699 Obsolete industrial instrument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 420
700 Certificate of employment on termination . . . . . . . . . . . . . . . . . . . . . . . . . . . 421
701 False pretences relating to employment . . . . . . . . . . . . . . . . . . . . . . . . . . . . 421
702 Protection from liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 422
703 Payments to financially distressed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 423
704 Notices and applications to be written . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 424
705 Inaccurate descriptions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 424
706 Confidentiality of information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 424
707 Application of Act generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 424
31
Industrial Relations
708 Approved forms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 425
709 Regulation-making power . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 425
CHAPTER 18--SAVINGS AND REPEALS
710 Savings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 426
711 Regulation and rules to continue . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 427
712 Repeals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 427
CHAPTER 19--SAVING AND TRANSITIONAL PROVISIONS
FOR INDUSTRIAL RELATIONS ACT 1999
PART 1--EXISTING INDUSTRIAL AGREEMENTS
713 Existing industrial agreement continues . . . . . . . . . . . . . . . . . . . . . . . . . . . . 428
714 Industrial agreement displaced by QWA . . . . . . . . . . . . . . . . . . . . . . . . . . . . 429
PART 2--EXISTING CERTIFIED AGREEMENTS
715 New termination provisions for existing certified agreements . . . . . . . . . . . 429
716 EFAs that prevail over certified agreements . . . . . . . . . . . . . . . . . . . . . . . . . 429
717 Certified agreements that prevail over EFAs . . . . . . . . . . . . . . . . . . . . . . . . 430
PART 3--EXISTING EFAS
718 Existing EFA continues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 430
719 EFA displaced by QWA and determination . . . . . . . . . . . . . . . . . . . . . . . . . 430
PART 4--UNLAWFUL DISMISSALS
720 Dismissals before commencement of this section . . . . . . . . . . . . . . . . . . . . 431
PART 5--REPRESENTATION RIGHTS OF EMPLOYEE
ORGANISATIONS
721 Applications under the repealed Act, s 293 . . . . . . . . . . . . . . . . . . . . . . . . . . 431
PART 6--REFERENCES AND APPOINTMENTS
722 References to repealed Act or IO Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 432
723 Appointments continue . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 432
PART 7--VETE ORDERS AND DETERMINATIONS
724 Proceedings commenced under the Vocational Education,
Training and Employment Act 1991 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 432
725 Orders and determinations under the Vocational Education,
Training and Employment Act 1991 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 433
PART 8--ORGANISATIONS
726 Organisations with dual corporate status . . . . . . . . . . . . . . . . . . . . . . . . . . . . 434
727 Continued registration of organisations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 435
32
Industrial Relations
728 Applications for exemption from membership of an organisation . . . . . . . . 435
729 Amalgamations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 435
730 Withdrawals from amalgamation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 436
731 Election and ballot expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 436
732 Political objects funds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 436
CHAPTER 20--AMENDMENT OF PUBLIC SERVICE ACT 1996
733 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 437
734 Amendment of s 22 (Application of Act to certain public sector
units etc.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 437
735 Amendment of s 33 (Functions of commissioner) . . . . . . . . . . . . . . . . . . . . 437
737 Amendment of s 69 (Basis of employment--tenure or contract) . . . . . . . . 439
738 Amendment of s 70 (Basis of employment for contract employment) . . . . 440
739 Amendment of s 81 (Action because of surplus) . . . . . . . . . . . . . . . . . . . . . 440
740 Amendment of s 85 (Mental or physical incapacity) . . . . . . . . . . . . . . . . . . 440
741 Amendment of s 114 (Application of Act to general and
temporary employees) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 440
742 Replacement of s 117 (Inconsistency between directives and
industrial agreements) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 441
117 Relationship between directives and awards etc. . . . . . . . . . . . . . . . 441
743 Amendment of s 118 (Regulation-making power) . . . . . . . . . . . . . . . . . . . . 441
744 Amendment of s 136 (Existing regulations) . . . . . . . . . . . . . . . . . . . . . . . . . 441
745 Amendment of sch 1 (Public service offices and their heads) . . . . . . . . . . 442
746 Amendment of sch 3 (Dictionary) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 442
CHAPTER 21--CONSEQUENTIAL AMENDMENTS
747 Consequential amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 442
SCHEDULE 1 . . . . . . . . . . . . . . . . . . . . . . . . 443
INDUSTRIAL MATTERS
SCHEDULE 2 . . . . . . . . . . . . . . . . . . . . . . . . 446
APPOINTMENTS AND PROCEDURES
PART 1--PRESIDENT, VICE PRESIDENT, COMMISSIONER
ADMINISTRATOR AND COMMISSIONERS
1 Remuneration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 446
2 Benefits--Judges (Pensions and Long Leave) Act . . . . . . . . . . . . . . . . . . . . 447
3 Benefits--Superannuation (State Public Sector) Act 1990 . . . . . . . . . . . . . 447
33
Industrial Relations
4 Leave of absence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 448
PART 2--REGISTRAR
5 Preservation of registrar's rights if a public service officer . . . . . . . . . . . . . 449
6 Leave of absence of registrar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 450
7 Resignation of registrar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 450
PART 3--INSPECTORS
8 Appointment conditions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 450
9 Limitation on powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 450
10 Identity cards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 451
PART 4--PRESIDENT'S ADVISORY COMMITTEE
11 Definitions for pt 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 451
12 Term of office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 452
13 Remuneration of appointed members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 452
14 Meetings of president's advisory committee . . . . . . . . . . . . . . . . . . . . . . . . . 452
PART 5--INDUSTRIAL RELATIONS ADVISORY COMMITTEE
15 Definitions for pt 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 452
16 Term of office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 452
17 Deputies of members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 453
18 Remuneration of appointed members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 453
19 Conduct of committee meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 453
SCHEDULE 3 . . . . . . . . . . . . . . . . . . . . . . . . 455
CONSEQUENTIAL AMENDMENTS
ACTS INTERPRETATION ACT 1954 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 455
AMBULANCE SERVICE ACT 1991 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 455
ANTI-DISCRIMINATION ACT 1991 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 456
ASSOCIATIONS INCORPORATION ACT 1981 . . . . . . . . . . . . . . . . . . . . . 457
BRISBANE TRADES HALL MANAGEMENT ACT 1984 . . . . . . . . . . . . . 458
BUILDING AND CONSTRUCTION INDUSTRY (PORTABLE
LONG SERVICE LEAVE) ACT 1991 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 458
CORRECTIVE SERVICES (ADMINISTRATION) ACT 1988 . . . . . . . . . . 459
CRIMINAL JUSTICE ACT 1989 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 460
EDUCATION (WORK EXPERIENCE) ACT 1996 . . . . . . . . . . . . . . . . . . . 460
ELECTORAL ACT 1992 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 460
34
Industrial Relations
ELECTRICITY ACT 1994 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 461
EQUAL OPPORTUNITY IN PUBLIC EMPLOYMENT ACT 1992 . . . . . . 461
FUNERAL BENEFIT BUSINESS ACT 1982 . . . . . . . . . . . . . . . . . . . . . . . . 461
HEALTH RIGHTS COMMISSION ACT 1991 . . . . . . . . . . . . . . . . . . . . . . . 462
HEALTH SERVICES ACT 1991 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 462
INDUSTRIAL RELATIONS (PROTECTION FROM
INVALIDITIES) ACT 1991 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 462
JUDGES (SALARIES AND ALLOWANCES) ACT 1967 . . . . . . . . . . . . . 463
LIQUID FUEL SUPPLY ACT 1984 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 464
LOCAL GOVERNMENT ACT 1993 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 464
PARLIAMENTARY SERVICE ACT 1988 . . . . . . . . . . . . . . . . . . . . . . . . . . 464
PASTORAL WORKERS' ACCOMMODATION ACT 1980 . . . . . . . . . . . . 465
POLICE SERVICE ADMINISTRATION ACT 1990 . . . . . . . . . . . . . . . . . . 466
PRIVATE EMPLOYMENT AGENCIES ACT 1983 . . . . . . . . . . . . . . . . . . . 466
PUBLIC SERVICE ACT 1996 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 467
QUEENSLAND TOURIST AND TRAVEL CORPORATION ACT 1979 . . 468
RACING AND BETTING ACT 1980 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 468
RETIREMENT VILLAGES ACT 1988 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 469
SUPERANNUATION (STATE PUBLIC SECTOR) ACT 1990 . . . . . . . . . 469
TRADING (ALLOWABLE HOURS) ACT 1990 . . . . . . . . . . . . . . . . . . . . . 469
VOCATIONAL EDUCATION, TRAINING AND EMPLOYMENT
ACT 1991 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 471
WHISTLEBLOWERS PROTECTION ACT 1994 . . . . . . . . . . . . . . . . . . . . 477
WORKCOVER QUEENSLAND ACT 1996 . . . . . . . . . . . . . . . . . . . . . . . . . 478
WORKPLACE HEALTH AND SAFETY ACT 1995 . . . . . . . . . . . . . . . . . . 478
SCHEDULE 4 . . . . . . . . . . . . . . . . . . . . . . . . 479
AMENDMENT OF MODEL ELECTION RULES
SCHEDULE 5 . . . . . . . . . . . . . . . . . . . . . . . . 482
DICTIONARY
1999
A BILL
FOR
An Act relating to industrial relations in Queensland, and for other
purposes
s1 36 s3
Industrial Relations
The Parliament of Queensland enacts-- 1
CHAPTER 1--PRELIMINARY 2
title 3
Short
1. This Act may be cited as the Industrial Relations Act 1999. 4
5
Commencement
2.(1) Section 744 commences, or is taken to have commenced, on 6
1 July 1999. 7
(2) The remaining provisions of this Act commences on a day to be fixed 8
by proclamation. 9
object of this Act 10
Principal
3. The principal object of this Act is to provide a framework for industrial 11
relations that supports economic prosperity and social justice by-- 12
(a) providing for rights and responsibilities that ensure economic 13
advancement and social justice for all employees and employers; 14
and 15
(b) providing for an effective and efficient economy, with strong 16
economic growth, high employment, employment security, 17
improved living standards, low inflation and national and 18
international competitiveness; and 19
(c) preventing and eliminating discrimination in employment, and 20
ensuring equal remuneration for men and women; and 21
(d) helping balance work and family life; and 22
(e) promoting the effective and efficient operation of enterprises and 23
industries; and 24
(f) ensuring wages and employment conditions provide fair 25
standards in relation to living standards prevailing in the 26
s4 37 s5
Industrial Relations
community; and 1
(g) promoting participation in industrial relations by employees and 2
employers; and 3
(h) encouraging responsible representation of employees and 4
employers by democratically run organisations and associations; 5
and 6
(i) promoting and facilitating the regulation of employment by 7
awards and agreements; and 8
(j) meeting the needs of emerging labour markets and work patterns; 9
and 10
(k) promoting and facilitating jobs growth, skills acquisition and 11
vocational training through apprenticeships, traineeships and 12
labour market programs; and 13
(l) providing for effective, responsive and accessible support for 14
negotiations and resolution of industrial disputes; and 15
(m) assisting in giving effect to Australia's international obligations in 16
relation to labour standards. 17
18
Definitions
4. The dictionary in schedule 5 defines particular words used in this Act. 19
is an employee 20
Who
5.(1) An "employee" is-- 21
(a) a person employed in a calling on wages or piecework rates; or 22
(b) a person whose usual occupation is that of an employee in a 23
calling; or 24
(c) a person employed in a calling, even though-- 25
(i) the person is working under a contract for labour only, or 26
substantially for labour only; or 27
(ii) the person is a lessee of tools or other implements of 28
production, or of a vehicle used to deliver goods; or 29
s6 38 s6
Industrial Relations
(iii) the person owns, wholly or partly, a vehicle used to transport 1
goods or passengers; or 2
(d) a person who is a member of a class of persons declared to be 3
employees under section 275;1 or 4
(e) each person, being 1 of 4 or more persons who are, or claim to 5
be, partners working in association in a calling or business; or 6
(f) for proceedings for payment or recovery of amounts--a former 7
employee; or 8
(g) an outworker; or 9
(h) an apprentice or trainee. 10
(2) A person who is undertaking an industry placement within the 11
meaning of the Vocational Education and Training (Industry Placement) 12
Act 1992 is not an employee. 13
is an employer 14
Who
6.(1) An "employer" is-- 15
(a) a person employing, or who usually employs, 1 or more 16
employees, for the person or someone else; or 17
(b) for employees employed in a department of government--the 18
chief executive of that department. 19
(2) The following persons are also employers-- 20
(a) a person carrying on a calling in which employees are usually 21
employed, even though for the time being employees are not 22
employed in it; 23
(b) a person who is managing director, manager, secretary or 24
member of the managing body (however called) of a corporation, 25
partnership, firm or association of persons; 26
(c) if 4 or more persons are, or claim to be, partners working in 27
association in a calling or business--the partnership firm 28
constituted, or claimed to be constituted, by the persons; 29
1 Section 275 (Power to declare persons to be employees)
s7 39 s8
Industrial Relations
(d) a group training scheme or labour hire agency that arranges for an 1
employee (who is a party to a contract of service with the scheme 2
or agency) to do work for someone else, even though the 3
employee is working for the other person under an arrangement 4
between the scheme or agency and the other person; 5
(e) for proceedings for payment or recovery of amounts--a former 6
employer. 7
(3) In this section-- 8
"labour hire agency" means an entity that conducts a business that 9
includes the supply of services of employees to others. 10
is an industrial matter 11
What
7.(1) An "industrial matter" is a matter that affects or relates to-- 12
(a) work done or to be done; or 13
(b) the privileges, rights or functions of-- 14
(i) employers or employees; or 15
(ii) persons who have been, or propose to be, or who may 16
become, employers or employees; or 17
(c) a matter (whether or not an industrial matter as defined in this 18
section) that the court or commission considers has been, is, or 19
may be a cause or contributory cause of an industrial action or 20
industrial dispute. 21
(2) However, a matter is not an industrial matter if it is the subject of 22
proceedings for an indictable offence. 23
(3) Without limiting subsection (1) or affecting subsection (2), a matter is 24
an industrial matter if it relates to a matter mentioned in schedule 1. 25
about appointments and procedures of committees 26
Provisions
8. Schedule 2 contains provisions about-- 27
(a) the president and commissioners; and 28
(b) the registrar; and 29
s9 40 s9
Industrial Relations
(c) inspectors; and 1
(d) the members, and procedure, of-- 2
(i) the president's advisory committee; and 3
(ii) the industrial relations advisory committee. 4
HAPTER 2--GENERAL EMPLOYMENT 5
C
CONDITIONS 6
ART 1--GENERAL 7
P
Division 1--Working time 8
time 9
Working
9.(1) This section applies to an employee under an industrial instrument. 10
(2) The periods for which an employee is required to work must not 11
exceed-- 12
(a) 6 days in any 7 consecutive days; or 13
(b) 40 hours in any 6 consecutive days; or 14
(c) 8 hours in any day. 15
(3) An employee must be paid overtime at the rate of at least-- 16
(a) for a calling in which more than 1 shift is worked in a 17
day--double time; and 18
(b) for another calling--time and a half. 19
(4) If an employee is paid at a higher rate than the minimum rate 20
prescribed in the industrial instrument, the overtime rate must be worked 21
out on the higher rate. 22
(5) If practicable, an employee is entitled to a rest pause of at least 23
10 minutes in each 4 hours of working time on a day. 24
s 10 41 s 10
Industrial Relations
(6) The rest pause-- 1
(a) is part of the employee's working time; and 2
(b) if continuity of work is necessary--must be taken when it does 3
not interfere with continuity. 4
(7) This section does not apply if an industrial instrument provides 5
otherwise. 6
(8) In this section-- 7
"overtime" means time worked-- 8
(a) outside any of the periods mentioned in subsection (2); or 9
(b) before or after the fixed or recognised times of starting or 10
finishing work on a day in a calling. 11
Division 2--Sick leave 12
13
Entitlement
10.(1) This section does not apply to casual employees or pieceworkers. 14
(2) An employee is entitled to-- 15
(a) at least 8 days sick leave on full pay for each completed year of 16
employment with an employer; and 17
(b) for each completed period of employment of less than a year--at 18
least 1 day's sick leave on full pay for each completed 6 weeks of 19
employment with an employer. 20
(3) However, the employee's entitlement is conditional on-- 21
(a) the employee promptly notifying the employer of-- 22
(i) any illness that will cause the employee to be absent from 23
work; and 24
(ii) the approximate period for which the employee will be 25
absent; and 26
(b) if the employee is absent for more than 2 days-- 27
(i) the employee giving the employer a doctor's certificate about 28
s 11 42 s 11
Industrial Relations
the nature of the illness and the approximate period for 1
which the employee will be absent; or 2
(ii) the employee giving the employer other evidence of the 3
illness to the employer's satisfaction. 4
(4) Subsection (3) does not apply if-- 5
(a) an industrial instrument provides otherwise; or 6
(b) the employee and employer agree otherwise. 7
(5) For a person who did not have an entitlement to sick leave before the 8
commencement of this section, this section does not confer an entitlement in 9
relation to employment before the commencement. 10
3--Annual leave 11
Division
12
Entitlement
11.(1) This section does not apply to casual employees or pieceworkers. 13
(2) For each completed year of employment with an employer, an 14
employee is entitled to-- 15
(a) if the employee is not a shift worker--at least 4 weeks annual 16
leave; or 17
(b) if the employee is a shift worker--at least 5 weeks annual leave. 18
(3) Annual leave is exclusive of a public holiday that falls during the 19
leave. 20
(4) In working out a completed year of employment, the following 21
periods when an employee is absent without pay are not to be taken into 22
account-- 23
(a) a period of more than 3 months when an employee is absent with 24
the employer's approval; 25
(b) a period when an employee is absent without the employer's 26
approval, unless the employee is absent for not more than 27
3 months because of illness or injury certified to by a doctor. 28
(5) In this section-- 29
s 12 43 s 14
Industrial Relations
"shift worker" means an employee who-- 1
(a) is employed in a calling in which shifts are worked 24 hours a 2
day, 7 days a week; and 3
(b) works a rotating roster that includes each of the shifts. 4
annual leave 5
Taking
12.(1) An employee and employer may agree when the employee is to 6
take annual leave. 7
(2) If the employee and employer can not agree, the employer-- 8
(a) may decide when the employee is to take leave; and 9
(b) must give the employee at least 14 days written notice of the 10
starting date of the leave. 11
(3) An employee and employer may agree that the employee take all or 12
any part of the employee's annual leave before becoming entitled to it. 13
(4) If the employee takes leave before becoming entitled to it, the 14
employee is only entitled, at the end of the completed year of employment, 15
to the balance of the leave that would be due at the end of the year. 16
for annual leave 17
Payment
13.(1) Unless an employee and employer otherwise agree, the employer 18
must pay the employee for annual leave in advance. 19
(2) The employer must pay for the leave-- 20
(a) at the ordinary rate being paid to the employee immediately before 21
the leave is taken; or 22
(b) if, immediately before taking the leave, the employee is being paid 23
at a higher rate than the ordinary rate--at the higher rate. 24
for annual leave on termination of employment 25
Payment
14.(1) This section applies if an employee's employment is terminated 26
by the employee or employer. 27
(2) If the employee has not taken all the annual leave the employee is 28
s 15 44 s 15
Industrial Relations
entitled to, the employee is presumed to have taken the leave from the day 1
the termination takes effect (the "termination day"). 2
(3) The employer must immediately pay the employee for the annual 3
leave not taken, including any public holiday that falls in the period the 4
employee is presumed to have taken the leave. 5
(4) If the employee has been employed for any period of less than 1 year, 6
the employer must pay the employee proportionate annual leave for the 7
period. 8
(5) The employer must pay the employee at least the ordinary rate being 9
paid to the employee immediately before the termination day, unless an 10
industrial instrument states otherwise. 11
(6) This section does not apply to an employee who is a transferred 12
employee under section 69.2 13
Division 4--Public holidays 14
holidays 15
Public
15.(1) An employee, other than a casual employee or pieceworker, who 16
would ordinarily be required to work on a day on which a public holiday 17
falls is entitled to full pay for the time the employee would ordinarily have 18
been required to perform work on that day. 19
(2) Subsection (1) applies whether the employee-- 20
(a) works on that day; or 21
(b) does not work on that day because of the holiday. 22
(3) Subsection (1) does not apply if the employee is rostered off on a 23
public holiday. 24
(4) If an employee who is bound by an industrial instrument does work 25
on a public holiday, the employer must pay the employee-- 26
(a) for the greater of the hours worked or 4 hours-- 27
(i) if the employee would ordinarily be required to work on a 28
2 Section 69 (Continuity of service--transfer of calling)
s 15 45 s 15
Industrial Relations
day on which a public holiday falls--at the rate of 1.5 times 1
the hourly rate, in addition to the amount payable under 2
subsection (1); or 3
(ii) if the employee would not ordinarily be required to work on 4
a day on which a public holiday falls--at the rate of double 5
time and a half; or 6
(iii) if the employee is a casual employee--at the rate of double 7
time and a half; and 8
(b) if the employee works outside the employee's ordinary working 9
hours--at double the rate stated in the instrument for that work. 10
(5) Subsections (3) and (4) do not apply if an industrial instrument 11
provides otherwise. 12
(6) Subject to another Act that restricts work or trading hours on 13
particular days of the year, the employee and employer may agree that the 14
employee work on a public holiday at ordinary rates in exchange for another 15
day off on full pay. 16
(7) The commission may confer on an employee an entitlement to extra 17
annual leave on full pay, instead of extra pay, for work on a public holiday. 18
(8) In a district in which a holiday is not appointed for an annual 19
agricultural, horticultural or industrial show, the employee and employer 20
must agree on an ordinary working day that is to be treated as a show 21
holiday for all purposes. 22
(9) An employee, while employed by the 1 employer, is only entitled to 23
leave on full pay for a show holiday once each calendar year. 24
(10) In this section-- 25
"double time and a half" means 2.5 times the hourly rate. 26
"ordinary working day" means a day on which the employee would 27
ordinarily be required to perform work. 28
"ordinary working hours", for an employee, means the hours between 29
the employee's ordinary starting time and ordinary finishing time 30
under a relevant industrial instrument. 31
"show holiday" means-- 32
(a) a public holiday appointed for an annual agricultural, horticultural 33
s 16 46 s 17
Industrial Relations
or industrial show under the Holidays Act 1983, section 4;3 or 1
(b) for a district in which a public holiday is not appointed for an 2
annual agricultural, horticultural or industrial show--the day 3
agreed on by the employee and employer under subsection (8). 4
PART 2--FAMILY LEAVE 5
Division 1--Parental leave 6
this division does not apply to 7
Who
16.(1) This division does not apply to-- 8
(a) casual employees, other than casual employees who are engaged, 9
by a particular employer on a regular and systematic basis, for 10
several periods of employment during a period of at least 2 years 11
immediately before the employee seeks to access an entitlement 12
under this division (a "long term casual employee"); or 13
(b) seasonal employees; or 14
(c) pieceworkers. 15
(2) This division applies to long term casual employees only so far as it 16
relates to maternity leave. 17
(3) This division applies to long term casual employees even if some of 18
the periods of employment were before the commencement of this section. 19
for pt 2 20
Definitions
17. In this part-- 21
"adoption leave" means short adoption leave or long adoption leave. 22
"child", for adoption leave, means a child who is under the age of 5 years, 23
3 Holidays Act 1983, section 4 (Special holidays)
s 18 47 s 18
Industrial Relations
but does not include a child who-- 1
(a) has previously lived continuously with the employee for a period 2
of at least 6 months; or 3
(b) is the child or stepchild of the employee or employee's spouse. 4
"long adoption leave" means leave taken by an employee to enable the 5
employee to be the primary caregiver of an adopted child. 6
"long parental leave" means-- 7
(a) for a pregnant employee--maternity leave; or 8
(b) for an employee whose spouse gives birth--leave taken by the 9
employee to enable the employee to be the child's primary 10
caregiver. 11
"maternity leave" means leave that a pregnant employee takes-- 12
(a) for the pregnancy; or 13
(b) for the birth of her child; or 14
(c) to enable her to be the child's primary caregiver. 15
"parental leave" means long parental leave, short parental leave or 16
adoption leave. 17
"short adoption leave" means leave taken by an employee at the time of 18
the placement of an adopted child with the employee. 19
"short parental leave" means leave taken by an employee, in connection 20
with the birth of a child of the employee's spouse, at the time of-- 21
(a) the birth of the child; or 22
(b) the other termination of the pregnancy. 23
24
Entitlement
18.(1) This section details the parental leave entitlement of an employee 25
for-- 26
(a) an employee who is not a long term casual employee and who 27
has had at least 12 months continuous service with the employer; 28
or 29
s 19 48 s 19
Industrial Relations
(b) a long term casual employee. 1
(2) A pregnant employee is entitled to an unbroken period of up to 2
52 weeks unpaid maternity leave-- 3
(a) for the child's birth; and 4
(b) to be the child's primary caregiver. 5
(3) For the birth of a child of an employee's spouse4 , the employee is 6
entitled to the following leave-- 7
(a) an unbroken period of up to 1 week's unpaid short parental leave; 8
(b) a further unbroken period of up to 51 weeks unpaid long parental 9
leave. 10
(4) For the adoption of a child, an employee is entitled to the following 11
leave-- 12
(a) an unbroken period of up to 3 weeks unpaid short adoption leave; 13
(b) a further unbroken period of up to 49 weeks unpaid long adoption 14
leave. 15
(5) However, parental leave must not extend beyond 1 year after the child 16
was born or adopted. 17
(6) In this section-- 18
"continuous service" means service, including a period of authorised leave 19
or absence, under an unbroken employment contract. 20
and documents--maternity leave 21
Notices
19.(1) This section applies if a pregnant employee wants to take 22
maternity leave. 23
(2) The employee must give the employer-- 24
(a) at least 10 weeks' written notice of intention to take the leave; and 25
(b) at least 4 weeks' written notice of the dates on which she wants to 26
4 "spouse" of an employee includes--
(a) a former spouse; and
(b) a de facto spouse, including a spouse of the same sex as the employee.
s 20 49 s 21
Industrial Relations
start and end the leave. 1
(3) The employee must, before starting the leave, give the employer-- 2
(a) a doctor's certificate confirming that she is pregnant and the 3
expected date of birth; and 4
(b) a statutory declaration by the employee stating the period of any 5
parental leave sought by her spouse. 6
and documents--parental leave other than maternity or 7
Notices
adoption leave 8
20.(1) This section applies if an employee wants to take parental leave, 9
other than maternity leave or adoption leave. 10
(2) The employee must give the employer-- 11
(a) for long parental leave, at least 10 weeks' written notice of 12
intention to take the leave; and 13
(b) at least 4 weeks' written notice of the dates on which the 14
employee wants to start and end the leave. 15
(3) The employee must, before starting the leave, give the employer-- 16
(a) a doctor's certificate confirming that the employee's spouse is 17
pregnant and the expected date of birth; and 18
(b) for long parental leave--a statutory declaration by the employee 19
stating-- 20
(i) the period of any maternity leave sought by the employee's 21
spouse; and 22
(ii) the employee is seeking the leave to be the child's primary 23
caregiver. 24
and documents--adoption leave 25
Notices
21.(1) This section applies if an employee wants to take adoption leave. 26
(2) The employee must give the employer-- 27
(a) for long adoption leave--written notice of any approval to adopt a 28
child at least 10 weeks before the expected date of placement of 29
s 22 50 s 22
Industrial Relations
the child for adoption purposes (the "expected placement 1
date"); and 2
(b) written notice of the dates on which the employee wants to start 3
and end the leave, as soon as practicable after the employee is 4
notified of the expected placement date but, in any case, at least 5
14 days before starting the leave. 6
(3) The employee must, before starting the leave, give the employer-- 7
(a) a statement from an adoption agency of the expected placement 8
date; and 9
(b) for long adoption leave--a statutory declaration by the employee 10
stating-- 11
(i) the period of any adoption leave sought by the employee's 12
spouse; and 13
(ii) the employee is seeking the leave to be the child's primary 14
caregiver. 15
(4) In this section-- 16
"adoption agency" means an agency, body, office or court, authorised by a 17
Commonwealth or State law to perform functions about adoption. 18
not to give notice or documents 19
Reasons
22.(1) An employee does not fail to comply with section 19, 20 or 21 if 20
the failure was caused by-- 21
(a) the child being born, or the pregnancy otherwise terminating, 22
before the expected date of birth; or 23
(b) the child being placed for adoption before the expected placement 24
date; or 25
(c) another reason that was reasonable in the circumstances. 26
(2) However, the employee must give the employer-- 27
(a) notice of the period of the leave within 2 weeks after the birth or 28
placement; and 29
(b) in the case of the birth of a living child--a doctor's certificate 30
stating the date on which the child was born. 31
s 23 51 s 26
Industrial Relations
of change to situation 1
Notice
23. An employee must notify the employer of any change in the 2
information provided under section 19, 20 or 21 within 2 weeks after the 3
change. 4
of service 5
Continuity
24.(1) Parental leave does not break an employee's continuity of service. 6
(2) Parental leave is not to be taken into account in working out the 7
employee's period of service, other than-- 8
(a) to decide the employee's entitlement to a later period of parental 9
leave; or 10
(b) as expressly provided in this Act, an industrial instrument or 11
employment contract. 12
not to take parental leave at same time 13
Spouses
25.(1) An employee is not entitled to parental leave, other than short 14
parental leave or short adoption leave, when his or her spouse is on parental 15
leave. 16
(2) If the employee contravenes subsection (1), the period of parental 17
leave that the employee is entitled to is reduced by the period of leave taken 18
by his or her spouse. 19
parental leave 20
Cancelling
26.(1) Parental leave applied for but not started is automatically cancelled 21
if-- 22
(a) the employee withdraws the application for leave by written notice 23
to the employer; or 24
(b) the pregnancy terminates other than by the birth of a living child; 25
or 26
(c) the placement of the child with the employee for adoption 27
purposes does not proceed. 28
(2) If, while an employee is on parental leave-- 29
s 27 52 s 28
Industrial Relations
(a) the pregnancy terminates other than by the birth of a living child; 1
or 2
(b) the child in relation to whom the employee is on parental leave 3
dies; or 4
(c) the placement of the child with the employee for adoption 5
purposes does not proceed or continue; 6
the employee is entitled to resume work at a time nominated by his or her 7
employer within 2 weeks after the day on which the employee gives his or 8
her employer a written notice stating the employee intends to resume work 9
and the reason for the resumption. 10
(3) This section does not affect an employee's entitlement to special 11
maternity leave or sick leave under section 37.5 12
leave with other leave 13
Parental
27.(1) An employee may take any annual leave or long service leave to 14
which the employee is entitled instead of or together with parental leave. 15
(2) However, the total period of leave can not extend beyond the total 16
period allowed under section 18.6 17
(3) While the employee is on unpaid parental leave, the employee is not 18
entitled to paid sick leave or other paid leave, unless the employer agrees. 19
(4) In this section-- 20
"other paid leave" means paid leave authorised by law or by an industrial 21
instrument or employment contract. 22
of parental leave by return to work 23
Interruption
28.(1) An employee and employer may agree that the employee break the 24
period of parental leave by returning to work for the employer, whether on a 25
full-time, part-time or casual basis. 26
5 Section 37 (Special maternity leave and sick leave)
6 Section 18 (Entitlement)
s 29 53 s 31
Industrial Relations
(2) The period of parental leave can not be extended by the return to work 1
beyond the total period allowed under section 18. 2
period of parental leave 3
Extending
29.(1) An employee may extend the period of parental leave once only by 4
written notice given to the employer at least 14 days-- 5
(a) before the start of the parental leave; or 6
(b) if the leave has been started--before the leave ends. 7
(2) The notice must state when the extended period of leave ends. 8
(3) The total period of leave can not be extended beyond the total period 9
allowed under section 18, unless the employer agrees. 10
period of parental leave 11
Shortening
30. If the employer agrees, an employee may shorten parental leave by 12
written notice given to the employer at least 14 days before the employee 13
wants to return to work. 14
on parental leave of ceasing to be the primary caregiver 15
Effect
31.(1) This section applies if-- 16
(a) during a substantial period starting on or after the start of an 17
employee's long parental leave, the employee is not the child's 18
primary caregiver; and 19
(b) considering the length of the period and any other relevant 20
circumstances, it is reasonable to expect the employee will not 21
again become the child's primary caregiver within a reasonable 22
period. 23
(2) The employer may notify the employee of the day, at least 4 weeks 24
after the employer gives the notice, on which the employee must return to 25
work. 26
(3) If the employee returns to work, the employer must cancel the rest of 27
the leave. 28
s 32 54 s 33
Industrial Relations
to work after parental leave etc. 1
Return
32.(1) This section applies to-- 2
(a) an employee who returns to work after parental leave; or 3
(b) a female employee who returns to work after special maternity 4
leave or sick leave under section 37. 5
(2) The employee is entitled to be employed in-- 6
(a) the position held by the employee immediately before starting 7
parental leave; or 8
(b) if the employee worked part-time because of the pregnancy before 9
starting maternity leave--the position held by the employee 10
immediately before starting part-time work; or 11
(c) if the employee was transferred to a safe job under section 36 12
before starting maternity leave--the position held by the 13
employee immediately before the transfer. 14
(3) If the position no longer exists but there are other positions available 15
that the employee is qualified for and is capable of performing, the 16
employee is entitled to be employed in a position that is, as nearly as 17
possible, comparable in status and remuneration to that of the employee's 18
former position. 19
(4) An employer must make a position to which an employee is entitled 20
available to the employee. 21
(5) If a long term casual employee's hours were reduced because of the 22
pregnancy before starting maternity leave, the employer must restore the 23
employee's hours to hours equivalent to those worked immediately before 24
the hours were reduced. 25
obligations 26
Employer's
33.(1) On becoming aware that an employee or an employee's spouse is 27
pregnant, or that an employee is adopting a child, an employer must inform 28
the employee of-- 29
(a) the employee's entitlement to parental leave under this part; and 30
(b) the employee's obligations to notify the employer of any matter 31
under this part. 32
s 34 55 s 35
Industrial Relations
(2) An employer can not rely on an employee's failure to give a notice or 1
other document required by this part unless the employer establishes that 2
this subsection has been complied with. 3
because of pregnancy or parental leave 4
Dismissal
34.(1) An employer must not dismiss an employee because-- 5
(a) the employee or employee's spouse is pregnant or has applied to 6
adopt a child; or 7
(b) the employee or employee's spouse has given birth to a child or 8
adopted a child; or 9
(c) the employee has applied for, or is absent on, parental leave. 10
(2) This section does not affect any other rights of-- 11
(a) an employer to dismiss an employee; or 12
(b) a dismissed employee. 13
employees 14
Replacement
35.(1) The employer must, before a replacement employee starts 15
employment, give the replacement employee a written notice informing the 16
replacement employee of-- 17
(a) the temporary nature of the employment; and 18
(b) the parent's right to return to work. 19
(2) In this section-- 20
"replacement employee" means-- 21
(a) a person who is specifically employed because an employee (the 22
"parent")-- 23
(i) starts parental leave; or 24
(ii) is transferred to a safe job under section 36; or 25
(b) a person replacing an employee who is temporarily promoted or 26
transferred to replace the parent. 27
s 36 56 s 37
Industrial Relations
to a safe job 1
Transfer
36.(1) This section applies whenever the present work of a female 2
employee is, because of her pregnancy or breastfeeding, a risk to the health 3
or safety of the employee or of her unborn or newborn child. 4
(2) The assessment of the risk is to be made on the basis of-- 5
(a) a doctor's certificate given by the employee to the employer; and 6
(b) the employer's obligations under the Workplace Health and 7
Safety Act 1995. 8
(3) The employer must temporarily adjust the employee's working 9
conditions or hours of work to avoid exposure to the risk. 10
(4) If an adjustment is not feasible or can not reasonably be required to be 11
made, the employer must transfer the employee to other appropriate work 12
that-- 13
(a) will not expose her to the risk; and 14
(b) is, as nearly as possible, comparable in status and remuneration to 15
that of her present work. 16
(5) If a transfer is not feasible or can not reasonably be required to be 17
made, the employer must grant the employee maternity leave, or any 18
available paid sick leave, for as long as a doctor certifies it is necessary to 19
avoid exposure to the risk. 20
maternity leave and sick leave 21
Special
37.(1) This section applies if, before an employee starts maternity 22
leave-- 23
(a) the employee's pregnancy terminates before the expected date of 24
birth, other than by the birth of a living child; or 25
(b) the employee suffers illness related to her pregnancy. 26
(2) For as long as a doctor certifies it to be necessary, the employee is 27
entitled to the following types of leave-- 28
(a) unpaid leave ("special maternity leave"); 29
(b) paid sick leave, either instead of, or as well as, special maternity 30
leave. 31
s 38 57 s 39
Industrial Relations
adoption leave 1
Special
38. An employee who is seeking to adopt a child is entitled to up to 2
2 days unpaid leave to attend compulsory interviews or examinations as part 3
of the adoption procedure. 4
2--Carer's leave 5
Division
6
Entitlement
39.(1) An employee may use up to 5 days of sick leave on full pay 7
("carer's leave") in each year to care and support-- 8
(a) members of the employee's immediate family when they are ill; 9
or 10
(b) members of the employee's household when they are ill. 11
(2) The employee must, if required by the employer, produce a doctor's 12
certificate or statutory declaration evidencing that the member is ill with an 13
illness that requires care by another. 14
(3) An employee can not take carer's leave if another person has taken 15
leave to care for the same person. 16
(4) Carer's leave may be taken for part of a day. 17
(5) The employee must, if practicable, give the employer-- 18
(a) notice of the intention to take carer's leave before taking the leave; 19
and 20
(b) the name of the person requiring care and the person's 21
relationship to the employee; and 22
(c) the reason for taking the leave; and 23
(d) the period that the employee estimates he or she will be absent. 24
(6) If it is not practicable for the employee to notify the employer of the 25
intention to take carer's leave before taking the leave, the employee must 26
notify the employer at the first reasonable opportunity. 27
(7) An employee may take unpaid carer's leave if the employer agrees. 28
s 40 58 s 42
Industrial Relations
3--Bereavement leave 1
Division
2
Entitlement
40.(1) This section does not apply to casual employees or pieceworkers. 3
(2) An employee is entitled to at least 2 days bereavement leave on full 4
pay on the death of a member of the person's immediate family or 5
household in Australia. 6
(3) The employee must give the employer a copy of the funeral notice or 7
other evidence of the death the employer reasonably requires. 8
(4) An employee may take unpaid bereavement leave if the employer 9
agrees. 10
Division 4--Part overrides less favourable conditions 11
part overrides less favourable conditions 12
This
41. This part has effect despite-- 13
(a) another law of the State; or 14
(b) an industrial instrument or order; 15
to the extent that the law, instrument or order provides an employee with a 16
benefit that is less favourable to the employee. 17
PART 3--LONG SERVICE LEAVE 18
Division 1--Definitions for pt 3 19
for pt 3 20
Definitions
42. In this part-- 21
"continuous service" of an employee means-- 22
s 43 59 s 43
Industrial Relations
(a) in section 50 7--the period of continuous service the employee is 1
taken to have had with an employer under section 50(4); and 2
(b) elsewhere--the employee's continuous service with the same 3
employer (whether wholly in the State, or partly in and partly 4
outside the State). 5
"owner" of a meat works includes a person who carries on the business of 6
the works. 7
"period between seasons" includes the period between-- 8
(a) the end of 1 season and the start of the next season; and 9
(b) for a particular employee--the day the employee stops 10
employment in 1 season and the day the employee starts 11
employment in the next season. 12
"season" means a period (whether falling completely in 1 calendar year or 13
partly in 1 calendar year and partly in the next calendar year) when-- 14
(a) for the sugar industry-- 15
(i) sugar cane is delivered to, and crushed at, a sugar mill; or 16
(ii) sugar cane is harvested, or farm work is performed, in the 17
sugar industry; or 18
(b) for a meat works--stock are delivered to, and slaughtered at, the 19
works. 20
2--Employees generally 21
Division
22
Entitlement
43.(1) This section applies to all employees, other than seasonal 23
employees. 24
(2) An employee is entitled to long service leave on full pay of-- 25
(a) for the first 15 years continuous service--13 weeks; and 26
(b) if the employee has completed at least a further 5 years 27
7 Section 50 (Entitlement--employees in sugar industry and meat works)
s 44 60 s 44
Industrial Relations
continuous service--another period that bears to 13 weeks the 1
proportion that the employee's further period of continuous 2
service bears to 15 years. 3
(3) An employee is entitled to a proportionate payment for long service 4
leave if-- 5
(a) the employee has completed at least 10 but less than 15 years 6
continuous service; and 7
(b) the employee's service is terminated by-- 8
(i) the employee's death; or 9
(ii) the employee; or 10
(iii) the employer, for a cause other than serious misconduct. 11
(4) Long service leave is exclusive of a public holiday that falls during the 12
period of the leave. 13
(5) An employee who is entitled to long service leave elsewhere than 14
under this Act, is entitled to leave that is at least as favourable as the 15
entitlement under this section. 16
(6) In this section-- 17
"proportionate payment" means a payment equal to the employee's full 18
pay for a period that bears to 13 weeks the proportion that the 19
employee's period of continuous service (stated in years, and a fraction 20
of a year if necessary) bears to 15 years. 21
out continuity of service for service before 23 June 1990 22
Working
44.(1) This section applies to service of all employees who are not casual 23
employees before 23 June 1990.8 24
(2) The repealed Industrial Conciliation and Arbitration Act 1961, 25
sections 17, 18, 19 and 20, applies to-- 26
(a) the determination of the employee's continuous service before 27
23 June 1990; and 28
8 In all other circumstances, see part 6 (Continuity of service and employment).
s 45 61 s 46
Industrial Relations
(b) the calculation of the employee's entitlement to long service leave 1
in relation to continuous service before 23 June 1990. 2
long service leave 3
Taking
45.(1) The commission may insert in an industrial instrument 4
provisions-- 5
(a) about the time when, the way in which, and the conditions on 6
which, long service leave may be taken; or 7
(b) to the effect that leave in the nature of long service leave taken, 8
before the provisions take effect, by an employee bound by the 9
instrument must be deducted from the long service leave that the 10
employee becomes entitled to under the provisions. 11
(2) An employee and employer may agree when the employee is to take 12
long service leave. 13
(3) If the employee and employer can not agree, the employer may 14
decide when the employee is to take leave by giving the employee at least 15
3 months written notice of the date on which the employee must take at least 16
4 weeks long service leave. 17
(4) Subsection (3) applies subject to an industrial instrument. 18
for long service leave 19
Payment
46.(1) The employer must pay the employee for long service leave at the 20
ordinary rate being paid to the employee immediately before the leave is 21
taken. 22
(2) However, if the employee is, immediately before taking the leave, 23
being paid at a higher rate than the ordinary rate, the employer must pay the 24
employee at the higher rate. 25
(3) An employer must not reduce an employee's usual rate, before an 26
employee starts long service leave, with intent to avoid the employer's 27
obligation under subsection (2). 28
(4) If satisfied an employer has done so, the commission may order the 29
employer to pay the employee at the usual rate even though the employee 30
was not being paid the usual rate immediately before starting leave. 31
s 47 62 s 47
Industrial Relations
(5) If, during the employee's leave-- 1
(a) the ordinary rate is increased above the higher rate--the employer 2
must pay the employee at the increased rate for the part of the 3
leave period that the increased rate applies to; or 4
(b) the ordinary rate is reduced--the employer may pay the employee 5
at the reduced rate for the part of the leave period that the reduced 6
rate applies to. 7
(6) In this section-- 8
"usual rate" the rate at which the employee is being paid for ordinary time, 9
being a rate that is higher than the ordinary rate. 10
Division 3--Casual employees 11
of service--additional considerations for casual employees 12
Continuity
47.(1) The service of an employee (a "casual employee") who is 13
employed more than once by the same employer over a period is 14
continuous service with the employer even though-- 15
(a) the employment is broken; or 16
(b) any of the employment is not full-time employment; or 17
(c) the employee is employed by the employer under 2 or more 18
employment contracts; or 19
(d) the employee would, apart from this section, be taken to be 20
engaged in casual employment; or 21
(e) the employee has engaged in other employment during the period. 22
(2) However, the continuous service ends if the employment is broken 23
by more than 3 months between the end of 1 employment contract and the 24
start of the next employment contract. 25
(3) In working out the length of an employee's continuous service-- 26
(a) the following service must not be taken into account-- 27
(i) service by the employee before 23 June 1990; 28
(ii) if the employee only obtained the entitlement because of the 29
s 48 63 s 49
Industrial Relations
enactment of the repealed Industrial Relations Reform Act 1
1994, section 179 --the employee's service between 23 June 2
1990 and 30 March 1994; and 3
(b) subject to subsection (2), a period when the employee was not 4
employed by the employer must be taken into account. 5
(4) This section does not limit any other entitlement to long service leave 6
that an employee may have. 7
long service leave--alternative provision for casual employees 8
Taking
48.(1) An employer may agree with a casual employee that the 9
entitlement to long service leave may be taken in the form of its full-time 10
equivalent. 11
12
Example--
13
If an employee--
14
(a) is entitled to be paid for 260 hours long service leave; and
15
(b) works under an award that provides for a full-time working week of
16
40 ordinary working hours;
17
the employee and the employer may agree that the employee take 61/2 weeks
18
leave (260 ÷ 40 = 61/2).
(2) This section applies subject to a provision in an industrial instrument 19
about the employee's long service leave. 20
for long service leave 21
Payment
49.(1) The minimum amount payable to a casual employee for long 22
service leave is worked out using the formula-- 23
actual service x 13 x hourly rate. 24
52 15 25
9 Section 17 (Definitions for pt 1)
s 49 64 s 49
Industrial Relations
1
Example--
2
An employee who worked 15 600 ordinary working hours over a 15 year period and
3
is being paid an hourly rate of $10 would be entitled to be paid--
4
15 600 x 13 x $10
5
52 15
6
= 260 x $10
7
= $2 600.
(2) If a dispute arises between an employee who is paid at piecework 8
rates and the employer about the rate the employee should be paid for long 9
service leave, the commission may decide the rate payable. 10
(3) An employee and employer may agree on the times when, and the 11
way in which, the employee will be paid for long service leave. 12
(4) The commission may decide any matter relating to payment for long 13
service leave that the employee and employer can not agree on. 14
(5) An amount payable for long service leave becomes payable at a time 15
agreed between the employee and employer or, if they can not agree, at a 16
time decided by the commission. 17
(6) In this section-- 18
"actual service" means the total ordinary working hours actually worked 19
by an employee during the employee's period of continuous service. 20
"casual employee" means an employee mentioned in section 47(1).10 21
"hourly rate" means the hourly rate for ordinary time payable to the 22
employee-- 23
(a) if the employee takes the long service leave--on the day that the 24
employee starts the leave; or 25
(b) if the employee's employment is terminated--on the date that the 26
termination takes effect. 27
10 Section 47 (Continuity of service--additional considerations for casual
employees)
s 50 65 s 50
Industrial Relations
Division 4--Seasonal employees 1
in sugar industry and meat works 2
Entitlement--employees
50.(1) This section applies to the following seasonal employees-- 3
(a) an employee employed in seasonal employment in the sugar 4
industry; or 5
(b) an employee employed in or about meat works in seasonal 6
employment by the meat works owner. 7
(2) The employee is entitled to long service leave on full pay of at least 8
the number of weeks worked out using the following formula-- 9
section 43 entitlement x actual service. 10
15 11
12
Example--
13
An employee who worked half of each year, over a 15 year period, is entitled to
14
half the section 43 entitlement, that is, half of 13 weeks leave or 61/2 weeks leave
15
(13 x 7.5 = 6 1/2).
16
15
(3) Service with the employer of an employee engaged in harvesting 17
sugar cane or farm work in the sugar industry before 23 June 1990 must 18
not be taken into account in working out the length of the employee's 19
continuous service. 20
(4) A period between seasons when the employee is not employed by the 21
employer must be taken into account in working out the length of an 22
employee's continuous service if-- 23
(a) in 1 season--the employee's service with the employer continued 24
until the end of the season or until an earlier day when the 25
employee's employment was terminated by the employer; and 26
(b) in the next season--the employee's service with the same 27
employer started on the season's opening or on a later day in the 28
season when the employer required the employee to start 29
employment. 30
(5) If an employee is employed by the employer between seasons, the 31
part of the period between seasons when the employee is employed must be 32
taken into account in working out the length of the employee's actual 33
s 51 66 s 52
Industrial Relations
service. 1
(6) An employee who is entitled to long service leave elsewhere than 2
under this Act, is entitled to leave that is at least as favourable as the 3
entitlement under this section. 4
(7) In this section-- 5
"actual service" means the total ordinary time actually worked by an 6
employee during the employee's period of continuous service. 7
"section 43 entitlement" means the entitlement to long service leave of an 8
employee under section 43. 9
long service leave--employees in sugar industry and meat 10
Taking
works 11
51.(1) This section applies to the following seasonal employees-- 12
(a) an employee employed in seasonal employment in the sugar 13
industry; 14
(b) an employee employed in or about meat works in seasonal 15
employment by the meat works owner. 16
(2) An employee may take long service leave between seasons. 17
(3) If an employee takes leave between seasons, the leave is taken to have 18
started when the employee last ceased employment with the employer. 19
seasonal employees 20
Other
52. The commission may decide the entitlement to long service leave of 21
an employee-- 22
(a) who is employed in seasonal employment, but who is not 23
employed-- 24
(i) in the sugar industry, or 25
(ii) in or about meat works; or 26
(b) who is employed in other periodic employment that is not defined 27
as casual employment by the relevant industrial instrument. 28
s 53 67 s 54
Industrial Relations
5--Miscellaneous 1
Division
instead of long service leave on termination 2
Payment
53.(1) An employer must not make, and an employee must not accept, 3
payment instead of long service leave except on termination of an 4
employee's employment. 5
Maximum penalty--40 penalty units. 6
(2) A person must not enter into an arrangement under which-- 7
(a) an employee or the employer terminates the employee's service 8
with the employer; and 9
(b) the employer pays the employee for all or any long service leave 10
that the employee is entitled to; and 11
(c) the employer re-employs the employee within a period, 12
commencing on the termination date, equal to the period of long 13
service leave that payment was made for. 14
Maximum penalty--40 penalty units. 15
(3) If a magistrate finds that a person has contravened subsection (2), the 16
magistrate may, in addition to any order the magistrate may make imposing 17
a penalty, make any other order the magistrate considers appropriate. 18
instead of long service leave on death 19
Payment
54.(1) This section applies if an employee entitled to long service leave 20
dies-- 21
(a) before taking the leave; or 22
(b) after starting, but before finishing, the leave. 23
(2) The employer must pay the employee's legal personal representative 24
any amount payable for the employee's entitlement to long service leave that 25
has not been already been paid. 26
(3) If the employer does not do so, the employee's legal personal 27
representative or an inspector may recover the amount as unpaid wages.11 28
11 See section 399 (Recovery of unpaid wages etc.).
s 55 68 s 58
Industrial Relations
not broken by service in Reserve Forces 1
Continuity
55.(1) An employee's service in the reserve forces is taken to be 2
continuous service with the employer who employed the employee 3
immediately before the employee starting service with the Forces. 4
(2) In this section-- 5
"reserve forces" means the Australian Naval Reserve, Australian Army 6
Reserve or Australian Air Force Reserve. 7
of certain exemptions 8
Recognition
56.(1) This part does not apply to an employer if-- 9
(a) the commission has exempted the employer, under the repealed 10
Industrial Conciliation and Arbitration Act 1961, from the 11
application of long service leave provisions in that Act or an 12
award; and 13
(b) the exemption is in force. 14
(2) On application, the commission may revoke an exemption. 15
may be "employer" and "employee" 16
Person
57. If in performing duties in a calling a person is an employee, the 17
person is entitled to long service leave as prescribed under this part despite 18
the person being, by definition for this Act, an employer because of-- 19
(a) the person's engagement in the calling; or 20
(b) the position the person holds in the calling. 21
PART 4--REVIEW 22
of general employment conditions 23
Review
58.(1) On application by the Minister, an organisation or a State peak 24
council, the full bench may review a condition under this chapter. 25
s 59 69 s 61
Industrial Relations
(2) The full bench must, before 30 June 2000, review an entitlement to 1
long service leave under this chapter. 2
(3) The full bench may, by a general ruling under section 287,12 3
substitute the condition with another condition that is no less favourable. 4
ART 5--EQUAL REMUNERATION FOR WORK OF 5
P
EQUAL OR COMPARABLE VALUE 6
for pt 5 7
Definition
59. In this part-- 8
"equal remuneration for work of equal or comparable value" means 9
equal remuneration for men and women employees for work of equal 10
or comparable value. 11
requiring equal remuneration 12
Orders
60.(1) The commission may make any order it considers appropriate to 13
ensure employees covered by the order receive equal remuneration for work 14
of equal or comparable value. 15
(2) An order may provide for an increase in remuneration rates, including 16
minimum rates. 17
only on application 18
Orders
61. The commission may make an order under this part only on 19
application by-- 20
(a) an employee to be covered by the order; or 21
(b) an organisation whose rules entitle it to represent the industrial 22
interests of employees to be covered by the order; or 23
(c) a State peak council; or 24
12 Section 287 (General rulings)
s 62 70 s 66
Industrial Relations
(d) the Minister; or 1
(e) the anti-discrimination commissioner. 2
commission must and may only make order 3
When
62. The commission must, and may only, make an order if it is satisfied 4
the employees to be covered by the order do not receive equal remuneration 5
for work of equal or comparable value. 6
or progressive introduction of equal remuneration 7
Immediate
63. The order may introduce equal remuneration for work of equal or 8
comparable value-- 9
(a) immediately; or 10
(b) progressively, in specified stages. 11
not to reduce remuneration 12
Employer
64.(1) An employer must not reduce an employee's remuneration 13
because an application or order has been made under this part. 14
(2) If an employer purports to do so, the reduction is of no effect. 15
does not limit other rights 16
Part
65.(1) This part does not limit any right a person or organisation may 17
otherwise have to secure equal remuneration for work of equal or 18
comparable value. 19
(2) Subsection (1) is subject to section 66. 20
under this part 21
Applications
66.(1) An application can not be made under this part for an order to 22
secure equal remuneration for work of equal or comparable value for an 23
employee if proceedings for an alternative remedy-- 24
(a) to secure the remuneration for the employee; or 25
s 67 71 s 68
Industrial Relations
(b) against unequal remuneration for work of equal or comparable 1
value for the employee; 2
have started under another provision of this Act or under another Act. 3
(2) Subsection (1) does not prevent an application under this part if the 4
proceedings for the alternative remedy have-- 5
(a) been discontinued by the party who started the proceedings; or 6
(b) failed for want of jurisdiction. 7
(3) If an application under this part has been made for an order to secure 8
equal remuneration for work of equal or comparable value for an employee, 9
a person is not entitled to start proceedings for an alternative remedy under a 10
provision or Act mentioned in subsection (1)-- 11
(a) to secure the remuneration for the employee; or 12
(b) against unequal remuneration for work of equal or comparable 13
value for the employee. 14
(4) Subsection (3) does not prevent proceedings being started for an 15
alternative remedy if the proceedings under this part have-- 16
(a) been discontinued by the party who started the proceedings; or 17
(b) failed for want of jurisdiction. 18
PART 6--CONTINUITY OF SERVICE AND 19
EMPLOYMENT 20
for pt 6 21
Definition
67. In this part-- 22
"service" includes employment. 23
part applies 24
How
68.(1) This part applies when working out an employee's rights and 25
s 69 72 s 70
Industrial Relations
entitlements under this chapter or chapter 313 by prescribing when the 1
employee's continuity of service is not broken. 2
(2) An employee is not entitled to claim the benefit of a right or 3
entitlement more than once for the same period of service. 4
of service--transfer of calling 5
Continuity
69.(1) A "transferred employee" is a person who becomes an 6
employee of an employer (the "new employer") because of the transfer of 7
a calling to the new employer from another employer (the "former 8
employer"). 9
(2) Even if a person is dismissed by the former employer before the 10
transfer of a calling, the person is taken to be a transferred employee if-- 11
(a) the person is employed by the new employer after the transfer; 12
and 13
(b) the employee-- 14
(i) was dismissed by the former employer within 1 month 15
immediately before the transfer; and 16
(ii) is re-employed by the new employer within 3 months after 17
the dismissal. 18
(3) The transfer of the calling is taken not to break the transferred 19
employee's continuity of service. 20
(4) A period of service with the former employer (including service 21
before the commencement of this section) is taken to be a period of service 22
with the new employer. 23
(5) In this section-- 24
"dismissed" includes stood down. 25
of service--apprentices or trainees 26
Continuity
70.(1) This section applies if-- 27
(a) an employee, while employed with the employer, starts an 28
13 Chapter 3 (Dismissals)
s 71 73 s 71
Industrial Relations
apprenticeship or traineeship; or 1
(b) the employer-- 2
(i) continues to employ an apprentice or trainee (the 3
"employee") on the completion of the apprenticeship or 4
traineeship; or 5
(ii) re-employs the employee within 3 months after completion 6
of the employee's apprenticeship or traineeship. 7
(2) The period of the apprenticeship or traineeship does not break the 8
employee's continuity of service. 9
of service--generally 10
Continuity
71.(1) Service with a partnership and an employer who was, or becomes, 11
a member of the partnership is taken to be continuous service with the same 12
employer. 13
(2) An employee's continuity of service with an employer is not broken 14
if the employee's service is temporarily lent or let on hire by the employer 15
to another employer. 16
(3) An employee's continuity of service with an employer is not broken 17
by an absence, including through illness or injury-- 18
(a) on paid leave approved by the employer; or 19
(b) on unpaid leave approved by the employer. 20
(4) An employee's continuity of service with an employer is not broken 21
if-- 22
(a) the employee's employment is terminated by the employer or 23
employee because of illness or injury; and 24
(b) the employer re-employs the employee; and 25
(c) the employee has not been employed in a calling (whether on the 26
employee's own account or as an employee) between the 27
termination and the re-employment. 28
(5) An employee's continuity of service with an employer is not broken 29
if-- 30
(a) the employee's employment is terminated by the employer or 31
s 71 74 s 71
Industrial Relations
employee; and 1
(b) the employer re-employs the employee within 3 months after the 2
termination.14 3
(6) An employee's continuity of service with an employer is not broken 4
if-- 5
(a) the employee's employment is interrupted or terminated by the 6
employer with intent to avoid an obligation under this part, an 7
industrial instrument or employment contract; or 8
(b) the employee's employment is interrupted or terminated by the 9
employer as a direct or indirect result of an industrial dispute, and 10
the employer re-employs the employee. 11
(7) An employee's continuity of service is not broken if-- 12
(a) the employee's employment is interrupted or terminated by the 13
employer because of slackness of trade or business; and 14
(b) the employer re-employs the employee. 15
(8) Service with a corporation and any of its subsidiaries is taken to be 16
continuous service with the same employer. 17
(9) However, a period for which the employee is away from work under 18
subsections (3)(b) to (6) is not service under this part unless-- 19
(a) this Act or an industrial instrument provides otherwise; or 20
(b) the commission directs otherwise. 21
(10) In this section-- 22
"subsidiary" means a corporation that would be taken to be a subsidiary 23
under the Corporations Law, whether or not the Corporations Law 24
applies in a particular case. 25
"terminate" includes stand-down. 26
14 Also see section 78(4)(a) (Remedies--reinstatement or re-employment)
s 72 75 s 72
Industrial Relations
HAPTER 3--DISMISSALS 1
C
ART 1--EXCLUSIONS 2
P
this chapter does not apply to 3
Who
72.(1) Part 215 does not apply to-- 4
(a) an employee during the first 3 months of employment with an 5
employer (the "probationary period"), if the dismissal is for a 6
reason other than an invalid reason, unless the employee and 7
employer agree in writing that the employee serve-- 8
(i) a shorter probationary period; or 9
(ii) no probationary period; or 10
(b) an employee serving a longer probationary period, if-- 11
(i) the period decided before the employment started is a 12
reasonable period having regard to the nature and 13
circumstances of the employment; and 14
(ii) the dismissal is for a reason other than an invalid reason; or 15
(c) a short term casual employee; or 16
(d) an employee engaged for a specific period or task, unless the 17
main purpose of engaging the employee in that way is, or was at 18
the time of the employee's engagement, to avoid the employer's 19
obligations under part 2; or 20
(e) an employee-- 21
(i) who is not employed under an industrial instrument; and 22
(ii) who is not a public service officer employed on tenure under 23
the Public Service Act 1996; and 24
(iii) whose annual wages immediately before the dismissal are 25
more than $68 000 or a greater amount stated, or worked out 26
in a way prescribed under a regulation. 27
15 Part 2 (Unfair dismissals)
s 72 76 s 72
Industrial Relations
(2) Part 316 does not apply to-- 1
(a) a casual employee; or 2
(b) an employee engaged by the hour or day; or 3
(c) an employee engaged for a specific period or task. 4
(3) Sections 87, 88 and 8917 do not apply to an employee with less than 1 5
year of continuous service. 6
(4) A regulation may exclude particular employees from the operation of 7
particular provisions of this chapter. 8
(5) Without limiting subsection (4), the regulation may identify as a class 9
of employees those employees whose wages or salary immediately before 10
dismissal was more than an amount, or an amount worked out in a way, 11
prescribed under the regulation. 12
(6) This chapter does not apply to-- 13
(a) an apprentice or trainee; or 14
(b) an employee participating in a labour market program. 15
(7) This chapter does not apply to a federal award employee, but instead 16
the provisions of the Commonwealth Act relating to dismissals apply (as a 17
law of the State) to the employee. 18
(8) In this section-- 19
"federal award employee" means an employee-- 20
(a) any of whose employment conditions are governed by an award, 21
certified agreement or AWA under the Commonwealth Act; but 22
(b) who is not an employee mentioned in the Commonwealth Act, 23
section 170CB(1)(a) to (d). 24
"short term casual employee" means a casual employee, other than a 25
casual employee who-- 26
(a) is engaged-- 27
16 Part 3 (Requirements for dismissal)
17 Sections 87 (Orders about severance allowances and other separation benefits),
88 (Employer must give notice of proposed dismissals) and 89 (Employer must
consult with employee organisations about dismissals)
s 73 77 s 73
Industrial Relations
(i) by a particular employer on a regular and systematic basis; 1
and 2
(ii) for several periods of employment during a period of at least 3
1 year; and 4
(b) apart from the employer's decision not to offer the person further 5
employment, had a reasonable expectation of further employment 6
by the employer. 7
PART 2--UNFAIR DISMISSALS 8
is a dismissal unfair 9
When
73.(1) A dismissal is unfair if it is-- 10
(a) harsh, unjust or unreasonable; or 11
(b) for an invalid reason. 12
(2) Each of the following is an "invalid reason"-- 13
(a) temporary absence, within the meaning of a regulation, from 14
work because of illness or injury (other than an injury within the 15
meaning of part 518); 16
(b) seeking office as, or acting or having acted in the capacity of, an 17
employees' representative; 18
(c) membership of an employee organisation or participation in the 19
organisation's activities outside working hours or, with the 20
employer's consent, during working hours; 21
(d) non-membership of an employee organisation; 22
(e) filing a complaint, or taking part in proceedings, against an 23
employer involving alleged violation of laws or recourse to 24
competent administrative authorities; 25
(f) the making by anyone, or a belief that anyone has made or may 26
18 Part 5 (Protection of injured employees)
s 74 78 s 74
Industrial Relations
make-- 1
(i) a public interest disclosure under the Whistleblowers 2
Protection Act 1994; or 3
(ii) a complaint under the Health Rights Commission Act 1991; 4
(g) refusing to negotiate for, make, sign, extend, amend or terminate 5
a certified agreement or QWA; 6
(h) refusing to negotiate for or make a certified agreement, or 7
Australian workplace agreement, under the Commonwealth Act; 8
(i) a reason mentioned in section 34;19 9
(j) a reason mentioned in section 394(2);20 10
(k) discrimination. 11
for reinstatement 12
Application
74.(1) An application for reinstatement must be made to the commission 13
within-- 14
(a) 21 days after the dismissal takes effect; or 15
(b) a further period the commission allows on an application made at 16
any time. 17
(2) An application may be made by-- 18
(a) an employee; or 19
(b) with the employee's consent--an organisation whose rules entitle 20
it to represent the employee's industrial interests. 21
(3) The registrar may reject an application if the registrar considers the 22
dismissed employee is a person to whom this chapter does not apply. 23
(4) If the registrar rejects the application, the registrar must, by written 24
notice, notify the applicant-- 25
(a) that the application has been rejected; and 26
19 Section 34 (Dismissal because of pregnancy or parental leave)
20 Section 394 (Contract not to stipulate mode of spending wages)
s 75 79 s 75
Industrial Relations
(b) of the reasons why the registrar considers the dismissed 1
employee is a person to whom this chapter does not apply. 2
(5) The applicant may, by written notice given within 21 days after the 3
registrar's notice is received, inform the registrar that the applicant wishes 4
the application to proceed. 5
(6) If the applicant does so, the commission must deal with the 6
application, despite the registrar's rejection. 7
(7) The commission and registrar must deal with an application as 8
quickly as possible. 9
before application heard 10
Conciliation
75.(1) The commission must hold a conference to attempt to settle an 11
application under section 74 by conciliation before it hears the application. 12
(2) The commission may, by written notice, require the applicant, 13
employee or employer to attend the conference at a stated time and place. 14
(3) If the commission is satisfied all reasonable attempts to settle the 15
matter by conciliation are, or are likely to be, unsuccessful so far as it relates 16
to at least 1 ground of the application, it-- 17
(a) must issue a written certificate stating that it is so satisfied for a 18
stated ground; and 19
(b) inform the parties to the conciliation of-- 20
(i) the commission's assessment of the merits of the application 21
in relation to the stated ground; and 22
(ii) the possible consequences of further proceeding on the 23
application; and 24
(c) may recommend the application be discontinued, whether or not it 25
also recommends another way of resolving the matter. 26
(4) The application lapses if the applicant has not, within 6 months after 27
the applicant has been informed by the commission under subsection (3)-- 28
(a) taken any action in relation to the application; or 29
(b) discontinued the application. 30
(5) The parties may seek further conciliation, or settle the matter, at any 31
s 76 80 s 77
Industrial Relations
time before an order is made under section 78, 79 or 80. 1
(6) The president may delegate the functions of the commission under 2
this section to the registrar or a deputy registrar. 3
when conciliation unsuccessful 4
Arbitration
76. If the commission considers all reasonable attempts to settle an 5
application by conciliation have been made, but have been unsuccessful, the 6
commission may hear and decide the application by-- 7
(a) making an order under section 78, 79 or 80; or 8
(b) dismissing the application. 9
to be considered in deciding an application 10
Matters
77. In deciding whether a dismissal was harsh, unjust or unreasonable, 11
the commission must consider-- 12
(a) whether the employee was notified of the reason for dismissal; 13
and 14
(b) whether the dismissal related to-- 15
(i) the operational requirements of the employer's undertaking, 16
establishment or service; or 17
(ii) the employee's conduct, capacity or performance; and 18
(c) if the dismissal relates to the employee's conduct, capacity or 19
performance-- 20
(i) whether the employee had been warned about the conduct, 21
capacity or performance; or 22
(ii) whether the employee was given an opportunity to respond 23
to the allegation about the conduct, capacity or performance; 24
and 25
(d) any other matters the commission considers relevant. 26
s 78 81 s 79
Industrial Relations
or re-employment 1
Remedies--reinstatement
78.(1) This section applies if the commission is satisfied an employee 2
was unfairly dismissed. 3
(2) The commission may order the employer to reinstate the employee to 4
the employee's former position on conditions at least as favourable as the 5
conditions on which the employee was employed immediately before 6
dismissal. 7
(3) If the commission considers reinstatement would be impracticable, 8
the commission may order the employer to re-employ the employee in 9
another position that the employer has available and that the commission 10
considers suitable. 11
(4) The commission may also-- 12
(a) make an order it considers necessary to maintain the continuity of 13
the employee's employment or service; and 14
(c) order the employee to repay any amount paid to the employee by, 15
or for, the employer on the dismissal; and 16
(b) order the employer to pay the employee the remuneration lost, or 17
likely to have been lost, by the employee because of the dismissal, 18
after taking into account any employment benefits or wages 19
received by the employee since the dismissal. 20
(5) This section does not limit the commission's power to make an 21
interim or interlocutory order. 22
23
Remedies--compensation
79.(1) If, and only if, the commission considers reinstatement or 24
re-employment would be impracticable, the commission may order the 25
employer to pay the employee an amount of compensation decided by the 26
commission. 27
(2) The commission must not award an amount of compensation that is 28
more than-- 29
(a) if the employee was employed under an industrial 30
instrument--the wages the employer would have been liable to 31
pay the employee for the 6 months immediately after the 32
s 80 82 s 81
Industrial Relations
dismissal, paid at the rate the employee received immediately 1
before the dismissal; or 2
(b) if the employee was not employed under an industrial 3
instrument--the lesser of the wages under paragraph (a) and an 4
amount equal to half the amount prescribed under 5
section 72(1)(e)(iii). 6
(3) The commission must take into account any amount paid to the 7
employee by the employer on the dismissal. 8
(4) This section does not limit the commission's power to make an 9
interim or interlocutory order. 10
for unfair dismissal--invalid reason 11
Sanctions
80.(1) If satisfied an employer has dismissed an employee for an invalid 12
reason, the commission may order the employer to pay the employee an 13
amount of not more than the monetary value of 135 penalty units. 14
(2) The commission may make the order in addition to an order for 15
reinstatement, re-employment or compensation. 16
orders if employer fails to reinstate 17
Further
81.(1) If an employer wilfully contravenes an order to reinstate or 18
re-employ an employee, the commission may-- 19
(a) further order the employer to pay the employee-- 20
(i) an amount of not more than the monetary value of 21
50 penalty units; and 22
(ii) an amount for lost wages; and 23
(b) make further orders until the employer complies with an order 24
under section 78 or this section. 25
(2) This section does not affect another provision of this Act allowing 26
proceedings to be taken against the employer. 27
s 82 83 s 83
Industrial Relations
of order on leave 1
Effect
82. If the commission makes an order under section 78, the interruption 2
to the employee's continuity of employment or service caused by the 3
dismissal must be disregarded when working out the employee's 4
entitlement-- 5
(a) to annual, sick, family or long service leave; or 6
(b) under this chapter. 7
PART 3--REQUIREMENTS FOR DISMISSAL 8
employer must do to dismiss employee 9
What
83.(1) An employer may dismiss an employee only if-- 10
(a) the employee has been-- 11
(i) given the period of notice required by section 84; or 12
(ii) paid the compensation required by section 85; or 13
(b) the employee engages in misconduct of a type that would make it 14
unreasonable to require the employer to continue the employment 15
during the notice period. 16
(2) Misconduct under subsection (1)(b) includes-- 17
(a) theft; and 18
(b) assault; and 19
(c) fraud; and 20
(d) other misconduct prescribed under a regulation. 21
(3) However, subsection (1)(b) does not apply if the employee can show 22
that, in the circumstances, the conduct was not conduct that made it 23
unreasonable to continue the employment during the notice period. 24
(4) If an employer dismisses an employee, to whom subsection (1)(a) 25
applies, without giving the required notice or paying the required 26
compensation-- 27
s 84 84 s 84
Industrial Relations
(a) on an application under section 7421--the commission may order 1
the employer to pay the employee the compensation that the 2
employer was required to pay under section 85; or 3
(b) otherwise--the commission or a magistrate may order the 4
employer to pay the employee the compensation that the 5
employer was required to pay under section 85. 6
(5) An application for an order under subsection (4)(b) may be made 7
by-- 8
(a) an employee who has been dismissed; or 9
(b) with the employee's consent--an organisation whose rules entitle 10
it to represent the employee's industrial interests; or 11
(c) an inspector. 12
(6) The application must be made within 6 years after the day on which 13
the employee is dismissed. 14
(7) A regulation may exclude from the operation of this section 15
dismissals happening in specified circumstances that relate to the transfer of 16
the employer's business. 17
period of notice required 18
Minimum
84.(1) The minimum period of notice is-- 19
(a) if the employee's continuous service is-- 20
(i) not more than 1 year--1 week; and 21
(ii) more than 1 year, but not more than 3 years--2 weeks; and 22
(iii) more than 3 years, but not more than 5 years--3 weeks; and 23
(iv) more than 5 years--4 weeks; and 24
(b) increased by 1 week if the employee-- 25
(i) is 45 years old or over; and 26
(ii) has completed at least 2 years of continuous service with the 27
employer. 28
21 Section 74 (Application for reinstatement)
s 85 85 s 87
Industrial Relations
(2) A regulation may prescribe matters that must be disregarded when 1
working out continuous service under subsection (1). 2
amount of compensation required 3
Minimum
85.(1) The minimum compensation payable to an employee is at least 4
equal to the total of the amounts the employer would have been liable to pay 5
the employee if the employee's employment had continued until the end of 6
the required notice period. 7
(2) The total must be worked out on the basis of-- 8
(a) the ordinary working hours worked by the employee; and 9
(b) the amounts payable to the employee for the hours, including, for 10
example, allowances, loadings and penalties; and 11
(c) any other amounts payable under the employee's employment 12
contract. 13
(3) A regulation may prescribe the amount that is taken to be payable, or 14
how to work out the amount, under an employment contract mentioned in 15
subsection (2)(c), to an employee whose wages before dismissal were 16
decided wholly or partly on the basis of commission or piece rates. 17
PART 4--DISMISSAL OF 15 OR MORE EMPLOYEES 18
this part applies 19
When
86. This part applies if an employer decides to dismiss 15 or more 20
employees for an economic, technological or structural reason. 21
about severance allowances and other separation benefits 22
Orders
87.(1) The commission may make an order about severance allowance or 23
other separation benefits on application by-- 24
(a) an employee; or 25
(b) an organisation whose rules entitle it to represent the employee's 26
s 88 86 s 88
Industrial Relations
industrial interests. 1
(2) An employer must not contravene the order. 2
(3) If an employer contravenes the order, the commission may-- 3
(a) make any of the orders it may make under section 78(2), (3) 4
or (4);22 or 5
(b) order the employer to pay the employee an amount of not more 6
than the monetary value of 135 penalty units. 7
(4) In this section-- 8
"severance allowance or other separation benefits" means severance 9
allowance or other separation benefits under article 12 of the 10
Termination of Employment Convention 1982. 11
must give notice of proposed dismissals 12
Employer
88.(1) The employer may dismiss the employees only if the employer, as 13
soon as practicable after making the decision, notifies-- 14
(a) the Commonwealth department or agency whose primary 15
function is helping unemployed people find work; and 16
(b) each employee organisation of which any of the employees is a 17
member. 18
(2) The notice must state-- 19
(a) the number and categories of employees being dismissed; and 20
(b) the reasons for the dismissals; and 21
(c) the time when, or the period over which, the employer intends to 22
carry out the dismissals. 23
(3) If satisfied an employer has dismissed, or proposes to dismiss, an 24
employee without giving the notice, the commission may make any or all of 25
the following orders-- 26
(a) any of the orders it may make under section 78(2), (3) or (4); 27
(b) an order that the employer pay each employee an amount of not 28
22 Section 78 (Remedies--reinstatement or re-employment)
s 89 87 s 89
Industrial Relations
more than the monetary value of 135 penalty units; 1
(c) an order declaring the dismissal ineffective until the employer has 2
given the notice. 3
(4) An application for an order may be made by-- 4
(a) an employee, including a dismissed employee; or 5
(b) an organisation whose rules entitle it to represent the employee's 6
industrial interests; or 7
(c) an inspector. 8
(5) The commission may order that a penalty, or part of a penalty, be 9
paid to any person who may have made the application (other than an 10
officer or employee of the State or a public service officer). 11
(6) Any part of the penalty ordered to be paid to the person must first be 12
paid to the person. 13
(7) The remainder of the penalty must then be paid to the consolidated 14
fund. 15
(8) A failure to give a notice is not an offence. 16
must consult with employee organisations about dismissals 17
Employer
89.(1) The employer must give each employee organisation of which any 18
of the employees is a member an opportunity to consult with the employer 19
on ways to-- 20
(a) avoid or minimise the dismissals; and 21
(b) minimise the adverse effects of the dismissals, for example, by 22
finding alternative employment. 23
(2) The employer must do so as soon as practicable after making the 24
decision to dismiss employees, but in any case before dismissing any of the 25
employees. 26
(3) If the employer does not give the organisation an opportunity to 27
consult as required, the commission may make the orders it considers 28
appropriate to put employees, and their organisations, in the same position, 29
as nearly as can be done, as if the employer had done so. 30
(4) The commission may make an order on application from an 31
s 90 88 s 92
Industrial Relations
employee or organisation that is to be affected by the order. 1
(5) Subsections (1) and (2) do not apply to an organisation if the 2
employer could not reasonably be expected to have known, at the time of 3
the decision, that the organisation's rules entitled it to represent the industrial 4
interests of the dismissed employees. 5
within which application under this part must be made 6
Time
90. An application for an order under this part must be made-- 7
(a) before, or within 21 days after, the dismissal takes effect; or 8
(b) within a further period the commission allows on an application 9
made at any time. 10
ART 5--PROTECTION OF INJURED EMPLOYEES 11
P
for pt 5 12
Definitions
91. In this part-- 13
"dismiss" an injured employee includes a situation where-- 14
(a) an unreasonable employment condition that is designed to make 15
the employee leave employment is imposed on the employee; and 16
(b) the employee leaves the employment. 17
"injured employee" means an employee who receives an injury. 18
"injury" means an injury within the meaning of the WorkCover 19
Queensland Act 1996 for which compensation is payable under that 20
Act. 21
to be paid for the day employee injured 22
Wages
92.(1) An injured employee is entitled to be paid full wages for the day 23
when the injury happens. 24
(2) Subsection (1) applies despite an industrial instrument or 25
s 93 89 s 94
Industrial Relations
employment contract. 1
(3) An injured employee's entitlement under subsection (1), or an 2
entitlement to be paid in relation to an injury under the Workcover 3
Queensland Act 1996, is in addition to the employee's entitlement to sick 4
leave under chapter 2, part 1, division 2.23 5
of injured employees only after 6 months 6
Dismissal
93.(1) Within 6 months after an employee becomes injured, the 7
employer must not dismiss the employee solely or mainly because the 8
employee is not fit for employment in a position because of the injury. 9
Maximum penalty--40 penalty units. 10
(2) This section applies to a dismissal after the commencement of this 11
section even if the employee became unfit before the commencement. 12
for injured employee 13
Replacement
94.(1) This section applies if the employer wants to employ a 14
replacement employee while an injured employee is not fit for employment 15
in a position because of the injury. 16
(2) The employer must, before a replacement employee starts 17
employment, give the replacement employee a written notice informing the 18
replacement employee of-- 19
(a) the temporary nature of the employment; and 20
(b) the injured employee's right to return to work. 21
(3) In this section-- 22
"replacement employee" means-- 23
(a) a person who is specifically employed because an injured 24
employee is not fit for employment in a position because of the 25
injury; or 26
(b) a person replacing an employee who is temporarily promoted or 27
transferred to replace the injured employee. 28
23 Chapter 2, part 1, division 2 (Sick leave)
s 95 90 s 96
Industrial Relations
of injured employees 1
Reinstatement
95.(1) This section applies if an injured employee is dismissed because 2
the employee is not fit for employment in a position because of the injury. 3
(2) The employee may apply to the employer, within 12 months after the 4
injury, for reinstatement to the employee's former position. 5
(3) The employee must give the employer a doctor's certificate that 6
certifies the employee is fit for employment in the former position. 7
(4) If the employer fails to immediately reinstate the employee, the 8
following persons may apply to the commission for a reinstatement order-- 9
(a) the employee; 10
(b) an employee organisation of which the employee is a member, 11
with the employee's consent. 12
(5) The commission may order the employer to reinstate the employee if 13
satisfied the employee is fit for employment in the former position. 14
(6) The order may specify terms of reinstatement, including for example, 15
the day the reinstatement is to take effect. 16
(7) This section applies to a dismissal after the commencement of this 17
section even if the employee became unfit before the commencement. 18
(8) In this section-- 19
"former position" of an injured employee means, at the employee's 20
option-- 21
(a) the position from which the injured employee was dismissed; or 22
(b) if the employee was transferred to a less advantageous position 23
before dismissal--the position held by the employee when the 24
employee became unfit for employment. 25
of employee's rights 26
Preservation
96.(1) This part does not affect another right of a dismissed employee 27
under an Act or law. 28
(2) This part can not be affected by a contract or agreement. 29
s 97 91 s 98
Industrial Relations
PART 6--STAND-DOWN OF EMPLOYEES 1
stood-down in December then re-employed in January 2
Employee
97.(1) This section applies to an employee, other than a casual employee 3
within the meaning of the relevant industrial instrument, who-- 4
(a) is stood down by an employer during December; and 5
(b) is re-employed by the employer before the end of the next 6
January; and 7
(c) was employed by the employer for a continuous period of at least 8
2 weeks immediately before being stood-down. 9
(2) The employer must pay the employee at the ordinary rate payable to 10
the employee immediately before the stand-down for the Christmas Day, 11
Boxing Day, and New Year's Day public holidays between the stand-down 12
and the re-employment. 13
(3) In this section-- 14
"stand-down" includes dismissal. 15
stand-down of employee 16
Permissible
98.(1) An employer may stand-down an employee on a day, or for part 17
of a day, when the employee can not be usefully employed because of 18
something that happened-- 19
(a) for which the employer is not responsible; or 20
(b) over which the employer has no control. 21
(2) The employer may stand-down the employee without pay, unless an 22
industrial instrument provides otherwise. 23
(3) This section does not apply to an apprentice or trainee. 24
s 99 92 s 101
Industrial Relations
ART 7--GENERAL 1
P
does not limit other rights 2
Chapter
99. This chapter does not limit a right a person or organisation may 3
otherwise have to-- 4
(a) appeal against a dismissal; or 5
(b) have an industrial instrument or order about a dismissal made. 6
instruments and orders 7
Inconsistent
100. An industrial instrument or order that is inconsistent with an order 8
under this chapter does not apply to the extent the inconsistency 9
detrimentally affects the rights of employees concerned. 10
CHAPTER 4--FREEDOM OF ASSOCIATION 11
ART 1--PRELIMINARY 12
P
purposes of ch 4 13
Main
101. The main purposes of this chapter are to ensure-- 14
(a) a person who is eligible to become a member of an industrial 15
association may become or remain a member of the association 16
without fear of discrimination;24 and 17
(b) a person who does not wish to become or remain a member of an 18
industrial association may refrain from doing so without fear of 19
discrimination. 20
24 For eligibility for membership, see section 531 (Eligibility).
s 102 93 s 102
Industrial Relations
for ch 4 1
Definitions
102. In this chapter-- 2
"conduct" includes an omission. 3
"conscientious beliefs" means an individual's beliefs based on the 4
individual's moral values or fundamental religious beliefs, other than a 5
belief founded wholly or principally on objections to the policies of an 6
organisation or organisations generally. 7
"exempted person" means a person who holds an exemption certificate. 8
"exemption certificate" means an exemption certificate under 9
section 115(1) that has not expired. 10
"industrial association" means any of the following-- 11
(a) an organisation; 12
(b) an association of independent contractors, however called, that is 13
registered or recognised as an association under an industrial law; 14
(c) an association of employees having as a principal purpose the 15
protection and promotion of their interests in matters concerning 16
their employment; 17
(d) an association of independent contractors having as a principal 18
purpose the protection and promotion of their interests as 19
independent contractors; 20
(e) an association of employers having as a principal purpose the 21
protection and promotion of their interests in matters concerning 22
employment or independent contractors; 23
(f) a branch of an industrial association under paragraphs (a) to (e). 24
"industrial body" means-- 25
(a) the commission; or 26
(b) the court or another court or commission, however called, 27
exercising industrial law functions and powers corresponding to 28
the commission's functions and powers. 29
"industrial instrument" includes an award or agreement made under the 30
Commonwealth Act or a law of another State. 31
"industrial law" means this Act or another Act regulating the relationships 32
s 103 94 s 104
Industrial Relations
between employers and employees. 1
"management committee" of an industrial association means the body of 2
persons, however called, that manages its affairs. 3
"prohibited conduct" means conduct prohibited under part 2. 4
"representative" of an industrial association means-- 5
(a) a delegate of the association; or 6
(b) an employee of the association; or 7
(c) an officer or agent of the association acting in that capacity. 8
of "industrial action" for ch 4 9
Meaning
103. In this chapter, "industrial action" includes conduct by a person-- 10
(a) engaged as an independent contractor that would be a strike if the 11
conduct had been engaged in by an employee; and 12
(b) who has engaged an independent contractor that would be a 13
lockout if the conduct had been engaged in by an employer. 14
(2) A reference in this chapter to "industrial action" includes a reference 15
to a course of conduct that makes up a series of industrial actions. 16
of "engaging in" conduct for a "prohibited reason" for ch 4 17
Meaning
104.(1) For this chapter, a person engages in conduct for a "prohibited 18
reason" if the person engages in, or threatens to engage in, the conduct 19
because another person-- 20
(a) is, has been, proposes to cease being or become, or has proposed 21
to cease being or become a member or representative of an 22
industrial association; or 23
(b) is not, or does not propose to become, a member or representative 24
of an industrial association; or 25
(c) has not paid, or does not propose to pay, a fee, however called, to 26
an industrial association; or 27
(d) is, has been, proposes to cease being or become, or has proposed 28
to cease being or become an exempted person; or 29
s 104 95 s 104
Industrial Relations
(e) has not or does not propose to join in industrial action; or 1
(f) has not agreed or consented to, or voted for, the making of an 2
agreement to which an industrial association of which the person 3
is a member, would be a party; or 4
(g) has participated in, proposes to participate in or has proposed to 5
participate in, a secret ballot ordered by an industrial body under 6
an industrial law; or 7
(h) has the right to the benefit of an industrial instrument or an order 8
of an industrial body; or 9
(i) has made or proposes to make an inquiry or complaint to a 10
person or body having the capacity under an industrial law to 11
seek-- 12
(i) compliance with that law; or 13
(ii) the observance of a person's rights under an industrial 14
instrument; or 15
(j) has given evidence or taken part in ("participate") or proposes to 16
participate in, or has proposed to participate in proceedings under 17
an industrial law; or 18
(k) is a member of an industrial association that is seeking better 19
industrial conditions; or 20
(l) is dissatisfied with the person's industrial conditions; or 21
(m) has absented himself or herself from work as an employee or 22
independent contractor without leave and-- 23
(i) the absence was to carry out a duty or exercise a right as an 24
officer of an industrial association; and 25
(ii) the person applied for leave before absenting himself or 26
herself and leave was unreasonably refused or withheld; or 27
(n) as an officer or member of an industrial association has done, or 28
proposes to do, an act or thing that is lawful and authorised by the 29
association's rules to further or protect the industrial interests of 30
the association or its members; or 31
(o) is a health and safety representative appointed under the 32
Workplace Health and Safety Act 1995. 33
s 105 96 s 105
Industrial Relations
(2) A person "engages in" conduct for a prohibited reason if the conduct 1
is engaged in for a reason that includes a prohibited reason. 2
(3) In this section, a reference to a person engaging in conduct includes a 3
reference to the person being, directly or indirectly, a party to or concerned 4
in the conduct. 5
ART 2--PROHIBITED CONDUCT 6
P
conduct for employers and principals 7
Prohibited
105.(1) This section applies to a person who is, or proposes to become, 8
an employer or who has engaged, or proposes to engage, someone else as 9
an employee or independent contractor. 10
(2) The person must not, for a prohibited reason, engage in the following 11
conduct-- 12
(a) refuse to engage a person as an employee or independent 13
contractor; 14
(b) terminate a person's contract of employment or contract for 15
services; 16
(c) disadvantage or injure a person who is, or proposes to become, an 17
employee or independent contractor; 18
(d) discriminate against a person in the conditions on which the 19
person is offered a contract of employment or contract for 20
services; 21
(e) in negotiating an agreement under chapter 6, part 1,25 discriminate 22
between the persons's employees because-- 23
(i) some of the employees are members of an employee 24
organisation, while others are not members of the 25
organisation; or 26
(ii) some of the employees are members of a particular 27
25 Chapter 6 (Agreements), part 1 (Certified agreements)
s 106 97 s 108
Industrial Relations
employee organisation, while others are not members of the 1
organisation, or are members of a different employee 2
organisation. 3
conduct for employees and independent contractors 4
Prohibited
106.(1) This section applies to a person who is, or proposes to become, 5
an employee or who is, or proposes to become, an independent contractor. 6
(2) The person must not, for a prohibited reason, take industrial action 7
against the person who engaged, or proposes to engage, the person as an 8
employee or an independent contractor. 9
conduct for industrial associations 10
Prohibited
107. An industrial association must not, for a prohibited reason, engage 11
in the following conduct-- 12
(a) organise or take, or threaten to organise or take, industrial action; 13
(b) advise, encourage or incite a person to engage in prohibited 14
conduct or conduct that would be prohibited conduct if the person 15
were an employer or a person who engaged an independent 16
contractor; 17
(c) take or threaten to take action that disadvantages a person in the 18
person's employment, prospective employment, contract for 19
services or prospective contract for services; 20
(d) disadvantage, or impose or threaten to impose a penalty or 21
disability, on a member of the association or a person who is 22
eligible to become a member of the association. 23
actions by representative not prohibited conduct 24
Certain
108. An industrial association does not engage in prohibited conduct 25
under another provision of this part if-- 26
(a) the conduct was engaged in by its representative, during or in 27
connection with industrial action; and 28
(b) the representative acted without the knowledge of the 29
s 109 98 s 112
Industrial Relations
association's management committee; and 1
(c) the management committee could not, by the exercise of 2
reasonable diligence, have prevented the conduct. 3
requiring or permitting prohibited conduct 4
Provision
109. An industrial instrument or an arrangement is void to the extent it 5
requires or permits prohibited conduct. 6
provisions permitted 7
Encouragement
110.(1) A provision (an "encouragement provision") of an industrial 8
instrument may encourage a person to join or maintain membership of an 9
industrial association. 10
(2) The following is not prohibited conduct-- 11
(a) making or acting under an encouragement provision; 12
(b) encouraging a person to join or maintain membership of an 13
industrial association. 14
(3) In this section-- 15
"encourage" does not include coerce. 16
PART 3--EXEMPTION FROM MEMBERSHIP 17
may apply for exemption 18
Who
111. A person may apply to a magistrate or the registrar for an 19
exemption from membership of an organisation only because of the 20
person's conscientious beliefs. 21
for hearing 22
Procedure
112. Before deciding the application, the magistrate or registrar must 23
follow the procedure prescribed under a regulation for the hearing. 24
s 113 99 s 115
Industrial Relations
application 1
Deciding
113.(1) The magistrate or registrar may grant the application only if 2
satisfied the applicant-- 3
(a) genuinely holds conscientious beliefs; and 4
(b) has paid the same amount as the membership subscription of the 5
organisation to the registrar of a Magistrates Court or the registry. 6
(2) If the magistrate or registrar decides to refuse to grant the application, 7
the registrar must promptly give the applicant a notice stating the 8
following-- 9
(a) the decision; 10
(b) the reasons for the decision; 11
(c) that the applicant may appeal against the decision to the full bench 12
within 21 days; 13
(d) how to start an appeal.26 14
payment must be applied 15
How
114. The amount paid to the registrar of the Magistrates Court or the 16
registry must be paid to the consolidated fund. 17
certificate 18
Exemption
115.(1) If the application is granted, the magistrate or registrar must give 19
the applicant a certificate (an "exemption certificate"). 20
(2) The exemption certificate must-- 21
(a) be in the approved form; and 22
(b) state-- 23
26 See sections 342 (Appeal from commission, magistrate or registrar) and
346 (Time limited for appeal)
s 116 100 s 118
Industrial Relations
(i) that the applicant is exempt from membership of the 1
organisation because the applicant's conscientious beliefs; 2
and 3
(ii) the day the exemption takes effect. 4
of exemption certificate 5
Expiry
116. An exemption certificate expires 1 year after the day the exemption 6
stated in the certificate took effect. 7
ART 4--CIVIL REMEDIES 8
P
may apply 9
Who
117. The following may apply to the commission for an order under this 10
part-- 11
(a) an entity against whom prohibited conduct has been carried out or 12
is proposed to be carried out; 13
(b) an industrial association of which an entity mentioned in 14
paragraph (a) is a member or is eligible to become a member of; 15
(c) another entity prescribed under a regulation. 16
required before hearing 17
Conciliation
118. Before the commission hears the application, it must direct the 18
parties to the proceedings to hold a conference before it-- 19
(a) to try to resolve, by conciliation, the issues relevant to the 20
proceedings; and 21
(b) to ensure the parties are fully informed of the orders that may be 22
made at the hearing. 23
s 119 101 s 120
Industrial Relations
to be heard 1
Right
119.(1) The commission must, before making an order under this part 2
against an entity, give the entity an opportunity to be heard. 3
(2) This section does not apply to the making of an interim order or 4
interim injunction. 5
6
Remedies
120.(1) If, after hearing the application, the commission is satisfied an 7
entity has engaged in, or proposes to engage in, prohibited conduct it may 8
order the entity-- 9
(a) to pay a penalty of not more than the monetary value of-- 10
(i) for a corporation, 135 penalty units; or 11
(ii) otherwise, 27 penalty units; or 12
(b) to reinstate an employee in-- 13
(i) the position from which the employee was removed or 14
dismissed because of the prohibited conduct or proposed 15
prohibited conduct on which the ground was based; or 16
(ii) a similar position; or 17
(c) to re-engage an independent contractor; or 18
(d) to pay appropriate compensation to an entity disadvantaged by the 19
conduct or proposed conduct; or 20
(e) not to carry out a threat made by the entity or make any further 21
threat. 22
(2) If the commission orders the reinstatement of an employee, the 23
reinstatement must be on conditions at least as favourable as the conditions 24
on which the employee was employed immediately before the employee's 25
removal or dismissal. 26
(3) The commission may also-- 27
(a) grant an interim or other injunction or make any other order it 28
considers appropriate to stop the conduct or proposed conduct or 29
to remedy its effects; or 30
s 121 102 s 122
Industrial Relations
(b) make any other order that is consequential to an order under this 1
section. 2
(4) The commission may make more than 1 order under this section 3
against the same entity. 4
of penalty 5
Payment
121.(1) If the commission orders an entity to pay a penalty, it may also 6
order that the penalty, or a part of the penalty, be paid to another entity. 7
(2) Any part of the penalty that is ordered to be paid to the other entity 8
must first be paid to the other entity. 9
(3) The remainder of the penalty must be paid to the consolidated fund. 10
of prohibited conduct 11
Evidence
122.(1) This section applies if conduct was engaged in by any of the 12
following-- 13
(a) an industrial association's management committee; 14
(b) an officer or agent of an industrial association acting in that 15
capacity; 16
(c) a member or group of members of an industrial association 17
authorised by-- 18
(i) the rules of the association; or 19
(ii) its management committee; or 20
(iii) an officer or agent of the association acting in that capacity; 21
(d) a member of an industrial association, who performs the function 22
of dealing with an employer or principal on behalf of the member 23
and other members of the association, acting in that capacity; 24
(e) a director or other officer or an employee or agent of a 25
corporation, acting in that capacity. 26
(2) Evidence that the conduct was engaged in by an entity mentioned in 27
subsection (1) is evidence the conduct was engaged in by the industrial 28
association or corporation. 29
s 123 103 s 124
Industrial Relations
(3) Evidence that the entity engaged in the conduct for a prohibited reason 1
is evidence the conduct was engaged in by the industrial association or 2
corporation for the prohibited reason. 3
HAPTER 5--AWARDS 4
C
ART 1--FORM AND APPLICATION 5
P
effect and term of award 6
Form,
123.(1) An award-- 7
(a) must be in a form decided by the commission; and 8
(b) takes effect and has the force of law throughout the State and 9
without limit of time, except as otherwise prescribed by 10
subsection (2). 11
(2) An award may state it is in force-- 12
(a) in a stated locality; or 13
(b) for a stated period; or 14
(c) in relation to a stated employer; or 15
(d) in relation to a stated establishment or operation of a stated 16
employer. 17
(3) An award stated to be limited in a way mentioned in subsection (2) 18
has effect only to the extent that it provides. 19
ersons bound by award 20
P
124.(1) An award binds-- 21
(a) subject to paragraphs (d) to (f)--all employers who are engaged 22
in the calling to which the award applies; and 23
(b) subject to paragraphs (d) to (f)--all employees who are engaged 24
in the calling to which the award applies; and 25
s 125 104 s 125
Industrial Relations
(c) all organisations concerned with the calling to which the award 1
applies; and 2
(d) if the award applies only in a stated locality--all employers and 3
employees in the locality who are engaged in the calling to which 4
the award applies; and 5
(e) if the award applies only to a stated employer-- 6
(i) the employer and any successor of the employer; and 7
(ii) all employees of the employer and any successor; and 8
(f) if the award applies only to a stated establishment or operation of 9
a stated employer-- 10
(i) the employer and any successor of the employer; and 11
(ii) all employees of the employer in the establishment or 12
operation. 13
(2) This section applies subject to section 653 and to all exemptions 14
ordered by the commission under section 132 or 234.27 15
PART 2--COMMISSION'S POWERS 16
amending and repealing awards 17
Making,
125.(1) The commission may make, amend or repeal an award to 18
provide, among other things, fair and just employment conditions. 19
(2) The commission may act under subsection (1)-- 20
(a) of its own initiative; or 21
(b) on application by-- 22
(i) the Minister; or 23
(ii) an organisation; or 24
27 Section 653 (Effect on certain instruments)
Section 132 (Exemptions)
Section 234 (Remedies on show cause)
s 126 105 s 126
Industrial Relations
(iii) an employer; or 1
(iv) a person who satisfies the commission that the person is not 2
an officer of, or acting for, an eligible association. 3
(3) The commission may make an award that-- 4
(a) revokes or amends a decision; or 5
(b) declares void or amends labour contracts made before or after the 6
commencement of this Act, subject to the conditions and 7
exemptions the commission considers appropriate; or 8
(c) gives the retrospective effect the commission considers 9
appropriate, or that is consented to by the parties, to the whole or 10
part of an award, but so that, except with the parties' consent, the 11
retrospective effect is not made to operate before the day when the 12
commission first took cognisance of the matter; or 13
(d) directs a copy of an award be exhibited by the employer in a 14
conspicuous and convenient place on the premises of an employer 15
bound by the award. 16
of awards 17
Content
126. The commission must ensure an award-- 18
(a) does not contain discriminatory provisions; and 19
(b) is stated in plain English and is easy to understand in structure 20
and content; and 21
(c) does not contain provisions that are obsolete or need updating; 22
and 23
(d) provides for secure, relevant and consistent wages and 24
employment conditions; and 25
(e) provides fair standards for employees in the context of living 26
standards generally prevailing in the community; and 27
(f) is suited to the efficient performance of work according to the 28
needs of particular enterprises, industries or workplaces; and 29
(g) takes account of the efficiency and effectiveness of the economy, 30
including productivity, inflation and the desirability of achieving a 31
s 127 106 s 128
Industrial Relations
high level of employment; and 1
(h) whenever possible-- 2
(i) contains facilitative provisions that allow agreement at the 3
workplace or enterprise level, between employers and 4
employees (including individual employees), on how the 5
award provisions are to apply; and 6
(ii) contains provisions enabling the employment of regular 7
part-time employees; and 8
(iii) provides support for training arrangements. 9
resolution procedures in each award 10
Dispute
127.(1) The commission must ensure an award contains a dispute 11
resolution procedure. 12
(2) The form of the procedure is to be agreed on by the parties to the 13
award. 14
(3) However, if the parties can not agree, the commission must insert an 15
appropriate procedure in the award. 16
(4) Without limiting subsection (1), the procedure must include-- 17
(a) procedures for consultation at the workplace; and 18
(b) procedures for the involvement of relevant organisations; and 19
(c) any other procedure prescribed under a regulation. 20
that fix wage rates 21
Awards
128.(1) In fixing wage rates payable to employees in a calling, the 22
commission must fix the rates on the basis that a man and a woman 23
employed by the same employer must receive equal remuneration for work 24
of equal or comparable value without discrimination on the ground of sex. 25
(2) Despite any other provision of this Act, wage rates fixed by the 26
commission for persons under 21 years may be fixed on a progressive scale 27
based on the wage rates payable to employees 21 years or over in the same 28
calling. 29
s 129 107 s 131
Industrial Relations
(3) In making an award that fixes the wage rates, the commission must 1
consider the age and experience of the persons under 21 years. 2
of certified agreements 3
Flow-on
129. The commission may include in an award provisions that are based 4
on a certified agreement only if satisfied the provisions-- 5
(a) are consistent with principles established by the full bench that 6
apply for deciding wages and employment conditions; and 7
(b) are not contrary to the public interest. 8
of awards 9
Review
130.(1) The commission may review an award-- 10
(a) of its own initiative; or 11
(b) on the application of a party to the award. 12
(2) Without limiting subsection (1), a party may apply to the commission 13
to amend a provision of an award about wages or employment conditions. 14
(3) The commission must review an award within 3 years after-- 15
(a) it was made; or 16
(b) if it was made before the commencement of this section--the 17
commencement; or 18
(c) it was last reviewed under this section. 19
(4) In reviewing an award, the commission must do what is required by 20
sections 126, 127 and 128. 21
of industrial instruments referred by the Anti-Discrimination 22
Review
Commission 23
131.(1) The commission must review an industrial instrument referred to 24
it by the Anti-Discrimination Commission on the grounds that it is 25
discriminatory. 26
(2) The anti-discrimination commissioner is a party to the proceedings. 27
s 132 108 s 134
Industrial Relations
PART 3--EXEMPTIONS 1
2
Exemptions
132.(1) The commission may, of its own initiative or on application by 3
an organisation or employer, by the order by which it makes an award, or 4
by its later order, exempt from the application of the award-- 5
(a) an employer or class of employer, or employee or class of 6
employee, in a locality or in the calling to which the award 7
applies; and 8
(b) a person who is engaged, whether as employer or employee, in 9
the locality or calling, while the award remains in force. 10
(2) The commission may give the exemption only if satisfied the 11
exemption-- 12
(a) is in the best interests of the employees and employers concerned; 13
and 14
(b) is not contrary to the public interest. 15
(3) While an exemption exists, the award does not bind the employer, 16
employee, class, or person, according to the exemption. 17
ART 4--GENERAL 18
P
of awards 19
Enforceability
133. Action can not be commenced to enforce an award until 21 days 20
after the date it is published in the industrial gazette. 21
of appeals on awards 22
Effect
134. The commission must immediately amend an award to give effect 23
to-- 24
(a) a decision of the Court of Appeal, court or full bench affecting the 25
award on appeal from a decision of the commission; or 26
s 135 109 s 136
Industrial Relations
(b) a decision of the court affecting the award on a case stated by the 1
commission. 2
between awards and contracts 3
Inconsistency
135.(1) To the extent of any inconsistency, an award prevails over a 4
contract of service that is-- 5
(a) in force when the award becomes enforceable; or 6
(b) made while the award continues in force. 7
(2) The contract is to be interpreted, and takes effect, as if it were 8
amended to the extent necessary to make the area of inconsistency conform 9
to the award. 10
(3) However, no inconsistency arises only because the contract provides 11
for employment conditions more favourable to the employee than the 12
award. 13
PART 5--WAGES AND EMPLOYMENT 14
CONDITIONS FOR APPRENTICES AND TRAINEES 15
and trainee's employment conditions 16
Apprentice's
136.(1) An apprentice or trainee is entitled to the same employment 17
conditions as those fixed by the industrial instrument applicable to 18
employees in the workplace where the apprentice or trainee is employed. 19
(2) If an industrial instrument provides for a tradesperson in a calling to 20
be paid an allowance in addition to wages, an apprentice in the calling is 21
entitled to be paid-- 22
(a) if, under the instrument, the allowance is taken to be part of the 23
tradesperson's wages--the percentage of the allowance that the 24
apprentice's wages bear to the tradesperson's wages; or 25
(b) if, under the instrument, the allowance is not taken to be part of 26
the tradesperson's wages--the full allowance. 27
s 137 110 s 137
Industrial Relations
(3) If an industrial instrument provides for a tradesperson in a calling to 1
be paid an allowance that is assessed as a percentage of the tradesperson's 2
wages, an apprentice in the calling is entitled to be paid the percentage of the 3
allowance that the apprentice's wages bear to the tradesperson's wages. 4
(4) Subsection (3) applies whether or not, under the instrument, the 5
allowance is taken to be part of the tradesperson's wages. 6
(5) In this section-- 7
"industrial instrument" includes an award or agreement under the 8
Workplace Relations Act 1996 (Cwlth). 9
setting minimum wages and conditions 10
Order
137.(1) The commission may make an order fixing minimum wages and 11
employment conditions for the following employees, whether or not they 12
are employed under an industrial instrument-- 13
(a) apprentices or trainees; or 14
(b) different classes of apprentices or trainees. 15
(2) In making an order, the commission may consider any matter it 16
considers relevant, including-- 17
(a) the age, competency, or method of progression through training 18
of the apprentices or trainees; and 19
(b) an industrial instrument. 20
(3) Despite section 136, if there is an inconsistency between an order and 21
an industrial instrument, the order prevails to the extent of the inconsistency. 22
(4) The commission may make an order-- 23
(a) of its own initiative; or 24
(b) on application by-- 25
(i) the State Training Council; or 26
(ii) an organisation; or 27
(iii) a State peak council; or 28
(iv) the Minister; or 29
s 138 111 s 138
Industrial Relations
(v) another entity with an interest in apprentices or trainees. 1
(5) In this section-- 2
"industrial instrument" includes an award or agreement under the 3
Commonwealth Act. 4
setting tool allowance 5
Order
138.(1) The commission may make an order requiring an apprentice's 6
employer to provide the apprentice with-- 7
(a) tools relevant to the calling the apprentice is engaged in; or 8
(b) an amount to enable the apprentice to buy the tools (a "tool 9
allowance"). 10
(2) The order may state-- 11
(a) the particular tools to be provided and the circumstances in which 12
they are to be provided; or 13
(b) the circumstances in which a tool allowance must be provided. 14
(3) The commission may make an order-- 15
(a) of its own initiative; or 16
(b) on application by-- 17
(i) the State Training Council; or 18
(ii) an organisation; or 19
(iii) a State peak council; or 20
(iv) the Minister; or 21
(v) another entity with an interest in apprentices. 22
(4) An employer must not contravene an order. 23
Maximum penalty--40 penalty units. 24
(5) If a magistrate finds an employer guilty of an offence against 25
subsection (4), the magistrate must, in addition to a penalty the magistrate 26
may impose, order the employer to-- 27
(a) provide the apprentice with the tools required to be provided 28
under the commission's order; or 29
s 139 112 s 140
Industrial Relations
(b) pay to the Magistrates Court the amount-- 1
(i) stated in the commission's order; or 2
(ii) equivalent to the cost of the tools required to be provided 3
under the commission's order. 4
(6) The magistrate may express the order in the alternative so the 5
employer may decide how to comply with it. 6
(7) The court must pay an amount paid under subsection (5)(b) to the 7
apprentice. 8
of employment before apprenticeship or traineeship 9
Termination
cancelled or completed 10
139.(1) This section applies despite any other provision of this Act if an 11
employer is training-- 12
(a) an apprentice under an apprenticeship; or 13
(b) a trainee under a traineeship. 14
(2) The apprentice's or trainee's employment with the employer can not 15
be terminated unless the apprenticeship or traineeship is completed or is 16
cancelled under the Vocational Education, Training and Employment 17
Act 1991, part 3.28 18
Maximum penalty--40 penalty units. 19
ART 6--LABOUR MARKET PROGRAMS 20
P
for wages and employment conditions 21
Orders
140.(1) The commission may make an order fixing wages and 22
employment conditions for employees who participate in a labour market 23
program. 24
28 Vocational Education, Training and Employment Act 1991, part 3 (Training
administration)
s 140 113 s 140
Industrial Relations
(2) In making an order, the commission may consider any matter it 1
considers relevant, including-- 2
(a) the objectives of the program; and 3
(b) any attribute of the participants that affects their ability to get 4
employment, including, for example-- 5
(i) the age and competency of the participants; and 6
(ii) any disability or incapacity of the participants; and 7
(c) the kind of work done in the program; and 8
(d) the experience to be gained by the participants; and 9
(e) any relevant industrial instrument; and 10
(f) any remuneration or benefit the participants are receiving from the 11
Commonwealth or the State. 12
(3) The commission may make an order-- 13
(a) of its own initiative; or 14
(b) on application by-- 15
(i) the State Training Council; or 16
(ii) the Minister. 17
(4) In this section-- 18
"labour market program" means a labour market program approved by 19
the Minister. 20
s 141 114 s 141
Industrial Relations
CHAPTER 6--AGREEMENTS 1
ART 1--CERTIFIED AGREEMENTS 2
P
1--Making agreements 3
Division
agreements 4
Certified
141.(1) A certified agreement may be made about the relationship 5
between an employer and a group of employees (whether all employees, or 6
a category of employees) of the employer. 7
(2) The certified agreement covers all employees in the group, even if 8
they were employed after the agreement was made. 9
(3) In this section-- 10
"group of employees" includes-- 11
(a) employees of a single employer; and 12
(b) employees of a multi-employer; and 13
(c) employees of an employer who are engaged in a project, 14
including a proposed project; and 15
(d) employees proposed to be employed in a new business by an 16
employer, other than a multi-employer; and29 17
(e) employees of-- 18
(i) the State; or 19
(ii) an entity established for a public purpose under a law of the 20
State or Commonwealth; or 21
(iii) another entity in which the State has a controlling interest. 22
29 See section 167 (Successor employers bound) for what happens on the transfer of
a business to a new employer.
s 142 115 s 143
Industrial Relations
may make certified agreements 1
Who
142. A certified agreement may be made between-- 2
(a) on the one hand, the employer; and 3
(b) on the other hand-- 4
(i) 1 or more employee organisations who represent, or are 5
entitled to represent, any employees who are, or are eligible 6
to be, members of the organisation; or 7
(ii) the employees at the time the agreement is made. 8
parties to be advised when agreement is proposed 9
Proposed
143.(1) This section applies when a person (the "proposer") proposes to 10
make a certified agreement. 11
(2) The proposer must advise the following persons, in writing, of the 12
proposer's intention to begin negotiations for the agreement-- 13
(a) the other proposed parties to the agreement; and 14
(b) for a project agreement--all relevant employee organisations and 15
the commission. 16
(3) The proposer must advise the persons at least 14 days before the 17
negotiations are proposed to begin. 18
(4) If the agreement proposed is a project agreement, an organisation that 19
receives advice under subsection (2) and wants to be party to the agreement 20
must give written notice of that fact to-- 21
(a) the proposer; and 22
(b) the commission. 23
(5) If the agreement proposed is a multi-employer agreement, a person 24
who receives advice under subsection (2) and wants to be party to the 25
agreement must give written notice of that fact to the proposer. 26
(6) A notice under subsection (4) or (5) must be given within 21 days of 27
the person receiving the advice. 28
(7) An agreement may only be made within that 21 days if the other 29
proposed parties to the agreement, and all relevant employee organisations, 30
s 144 116 s 144
Industrial Relations
have given a notice under subsection (4) or (5). 1
(8) In this section---- 2
"multi-employer agreement" means an agreement made with a 3
multi-employer. 4
"relevant employee organisation" means an employee organisation that-- 5
(a) is a party to an award or industrial agreement that binds the 6
employer, or would bind the employer apart from an award under 7
the Commonwealth Act; or 8
(b) if there is no award or agreement that binds, or would bind, the 9
employer--is entitled to represent the industrial interests of the 10
relevant employees. 11
is to be done when an agreement is proposed 12
What
144.(1) This section does not apply to a certified agreement to be made 13
with an employee organisation for employees proposed to be employed in a 14
new business. 15
(2) When a certified agreement is proposed to be made with an employee 16
organisation or employees, the employer must take reasonable steps to 17
ensure-- 18
(a) at least 14 days before the relevant employees are asked to 19
approve the agreement, each relevant employee has, or has ready 20
access to, the proposed written agreement; and 21
(b) the terms of the agreement (including the procedures for 22
preventing and settling disputes), and the effect of the terms, are 23
explained to each relevant employee before approval is given; and 24
(c) for an agreement with employees--each relevant employee is 25
informed that he or she may ask a relevant employee organisation 26
to represent the employee in negotiating with the employer about 27
the agreement. 28
(3) If a relevant employee does ask a relevant employee organisation to 29
represent the employee, the employer must give the organisation a 30
reasonable opportunity to represent the employee in negotiating with the 31
employer about the agreement before it is made. 32
s 145 117 s 145
Industrial Relations
(4) Subsection (3) stops applying if, after the request is made-- 1
(a) the relevant employee withdraws the request; or 2
(b) the employee stops being a relevant employee. 3
(5) In this section-- 4
"relevant employee organisation" means an employee organisation-- 5
(a) of which a relevant employee is a member; and 6
(b) that-- 7
(i) is a party to an award or industrial agreement that binds the 8
employer, or would bind the employer apart from an award 9
under the Commonwealth Act; or 10
(ii) if there is no award or agreement that binds, or would bind, 11
the employer--is entitled to represent the industrial interests 12
of the relevant employees. 13
for project agreements 14
Negotiations
145.(1) This section applies if more than 1 employee organisation has 15
given notice, under section 143(4), that it wants to be party to a proposed 16
project agreement. 17
(2) The employer must negotiate with the single bargaining unit, through 18
a person nominated by the single bargaining unit to represent it. 19
(3) An organisation may withdraw as a party to a proposed project 20
agreement by written notice to-- 21
(a) the other organisations that comprise the single bargaining unit; 22
and 23
(b) the proposer; and 24
(c) the commission. 25
(4) In this section-- 26
"single bargaining unit" means all the employee organisations that have 27
given notice, under section 143(4), that they want to be party to a 28
proposed project agreement. 29
s 146 118 s 148
Industrial Relations
must be in good faith 1
Negotiations
146. When negotiating the terms of a proposed agreement, the proposed 2
parties to the agreement must negotiate in good faith. 3
4
Examples of good faith in negotiating--
5
· agreeing to meet at reasonable times proposed by another party
6
· attending meetings that the party had agreed to attend
7
· complying with negotiation procedures agreed to by the parties
8
· not capriciously adding or withdrawing items for negotiation
9
· disclosing relevant information as appropriate for the negotiations
10
· negotiating with all of the parties.
obligation period to assist negotiations 11
Peace
147.(1) To enable the proposed parties to reach agreement about the 12
terms of the proposed agreement, the proposed parties can not during the 13
peace obligation period-- 14
(a) take industrial action for the purpose of-- 15
(i) supporting or advancing claims made in relation to the 16
proposed agreement; or 17
(ii) responding to industrial action by the employer or the 18
relevant employees; or 19
(b) ask the commission to help the parties to make the agreement 20
under section 148. 21
(2) In this section-- 22
"peace obligation period" means the period of 21 days after the giving of 23
the advice mentioned in section 143(2), ending no earlier than 7 days 24
after the nominal expiry date of any existing certified agreement. 25
in negotiating by conciliation 26
Assistance
148.(1) This section applies if, after the peace obligation period has 27
ended-- 28
(a) a party who has attempted to negotiate a certified agreement (a 29
s 148 119 s 148
Industrial Relations
"negotiating party"), by a declaration of a breakdown in 1
negotiations, has asked the commission to help the parties to 2
make a certified agreement; or 3
(b) the commission becomes aware that a negotiating party is 4
engaging in industrial action that-- 5
(i) is threatening, or has caused, significant damage to the 6
economy, community or local community, or part of the 7
economy; or 8
(ii) is threatening to endanger, or has endangered, the personal 9
health, safety or welfare of the community or part of it. 10
(2) To help the parties to reach agreement, the commission has the 11
conciliation powers it would have under section 230 if that section applied to 12
certified agreement negotiations instead of to industrial disputes. 13
14
Example--
15
The commission might help the parties to--
16
· develop and consider options and processes
17
· negotiate in good faith.
(3) Also, the commission may make orders to-- 18
(a) promote the efficient conduct of negotiations; or 19
(b) ensure the parties negotiate in good faith; or 20
(c) otherwise help the parties to negotiate the agreement. 21
(4) In particular, the commission may order a party to take, or not to take, 22
specified action. 23
(5) In deciding what orders to make, the commission must consider the 24
conduct of each of the parties. 25
(6) If 2 or more employee organisations are involved in the negotiations 26
or proposed negotiations, the commission may order that the organisations 27
be represented, for conciliating the matter, by a single person or group of 28
persons authorised by the organisations to represent them (whether 29
generally or for the particular negotiations). 30
(7) Subsection (6) does not limit subsection (2). 31
s 149 120 s 149
Industrial Relations
if conciliation unsuccessful 1
Arbitration
149.(1) This section applies if-- 2
(a) the commission considers conciliation has not been successful 3
because industrial action-- 4
(i) has been protracted; or 5
(ii) is threatening, or has caused, significant damage to-- 6
(A) the economy or local community, or part of the 7
economy; or 8
(B) a single enterprise; or 9
(C) employees; or 10
(iii) is threatening to endanger, or has endangered, the personal 11
health, safety or welfare of the community or part of it; or 12
(b) the commission considers it is not likely that further conciliation 13
will result in the matter being settled within a reasonable time, 14
considering, among other things, the history of industrial relations 15
in the enterprise or industry to which the proposed agreement is to 16
relate; or 17
(c) all the negotiating parties consider conciliation has been 18
unsuccessful and ask the commission to determine the matter by 19
arbitration. 20
(2) To determine the matter by arbitration-- 21
(a) the commission has the arbitration powers that it would have 22
under section 23030 if that section applied to certified agreement 23
negotiations instead of industrial disputes; and 24
(b) the commission may-- 25
(i) give directions or make orders of an interlocutory nature; or 26
(ii) order that section 17431 not apply to industrial action 27
organised, or engaged in, by a negotiating party from the 28
making of the order until the commission determines the 29
30 Section 230 (Action on industrial dispute)
31 Section 174 (Protected industrial action)
s 150 121 s 150
Industrial Relations
matter by arbitration. 1
(3) In exercising the arbitration powers, the commission must consider at 2
least the following-- 3
(a) the matters that are at issue; 4
(b) the merits of the case; 5
(c) the interests of the negotiating parties; 6
(d) the public interest, and to that end must consider-- 7
(i) the objects of this Act; and 8
(ii) the likely effects of the commission's determination on the 9
community, economy, industry generally and on the 10
particular enterprise or industry concerned; 11
(e) the extent to which the negotiating parties have negotiated in good 12
faith. 13
(4) The full bench may establish principles about the arbitration of 14
certified agreements. 15
(5) After the principles have been established, the commission must 16
exercise its power to arbitrate in a way that is consistent with the principles. 17
(6) Unless all the negotiating parties agree, the commission as constituted 18
for the conciliation can not exercise the arbitration powers mentioned in this 19
section. 20
made under s 149 21
Determinations
150.(1) A determination under section 149 must specify a date, of no 22
later than 3 years after the date on which the determination is made, as its 23
nominal expiry date. 24
(2) Subject to this section, the determination operates at all times after it 25
commences and can not be amended. 26
(3) The determination has effect subject to any conditions specified in it. 27
(4) Before the determination's nominal expiry date has passed, the 28
commission must not revoke the determination unless satisfied-- 29
(a) the employer and the 1 or more organisations, or a majority of the 30
s 151 122 s 151
Industrial Relations
employees, who are bound by the determination have agreed to 1
the revocation (for example, because they propose to make an 2
agreement under division 132); and 3
(b) the revocation would not be against the public interest. 4
(5) After the determination's nominal expiry date-- 5
(a) the employer, or an organisation, bound by the determination; or 6
(b) a majority of the employees to whom the determination applies; 7
may give notice to all of the employees, or other employees, to whom the 8
determination applies and persons, or other persons, who are bound by the 9
determination and to the commission, stating that the determination is 10
revoked with effect from a specified day. 11
(6) The specified day must be at least 28 days after-- 12
(a) the day on which the notice is given; or 13
(b) if it is given to different persons on different days--the day on 14
which it is last given. 15
to be repeated if proposed agreement is amended 16
Steps
151.(1) If a proposed agreement is amended for any reason, the steps in 17
section 144(2) and (3)33 must be taken again for the agreement as amended. 18
(2) If the agreement is being amended only by adding an employer (a 19
"new employer") as a party to the agreement, the steps need only be taken 20
in relation to the new employer's employees. 21
(3) However, the steps need not be taken if the commission is satisfied 22
the proposed agreement was amended only-- 23
(a) for a formal or clerical reason; or 24
(b) in another way that does not adversely affect a relevant 25
employee's interests. 26
32 Division 1 (Making agreements)
33 Section 144 (What is to be done when an agreement proposed)
s 152 123 s 155
Industrial Relations
as to requested representation 1
Certificate
152.(1) An employee organisation may apply to the registrar for a 2
certificate stating that an employee has requested the organisation, under 3
section 144, to represent the employee in negotiating with the employer 4
about a proposed agreement. 5
(2) An employer may apply to the registrar for a certificate stating that the 6
employer need not negotiate with an employee organisation about a 7
proposed agreement because of a circumstance mentioned in section 144(4). 8
(3) A certificate must identify the organisation, the employer and the 9
proposed agreement. 10
(4) A certificate must not identify any of the employees concerned. 11
(5) The certificate is, for all purposes of this Act, evidence of the matters 12
stated in it. 13
2--Certifying agreements 14
Division
for applying for certification 15
Time
153. An application for the commission to certify an agreement must be 16
made within 21 days after the day on which the agreement is signed by or 17
for all the parties. 18
of hearing 19
Notice
154. The registrar must, at least 7 days before an application for 20
certification of an agreement is to be heard, place a notice in the registry 21
detailing-- 22
(a) the names of the parties to the agreement; and 23
(b) the relevant or designated award; and 24
(c) the hearing date. 25
of employee organisation to be heard 26
Right
155.(1) All relevant employee organisations are entitled to be heard on an 27
s 156 124 s 156
Industrial Relations
application for the certification of an agreement. 1
(2) As soon as practicable after the application is made, the commission 2
must notify all relevant employee organisations that-- 3
(a) the application has been made; and 4
(b) the organisation is entitled to be heard on the application. 5
(3) This section does not affect another right of an employee 6
organisation, or anyone else, to be heard on or intervene in an application. 7
(4) In this section-- 8
"relevant employee organisation" means an employee organisation that-- 9
(a) is a party to an award or industrial agreement that binds the 10
employer, or would bind the employer apart from an award under 11
the Commonwealth Act; or 12
(b) if there is no award or agreement that binds, or would bind, the 13
employer--is entitled to represent the industrial interests of the 14
relevant employees. 15
an agreement 16
Certifying
156.(1) The commission must certify the agreement if, and must not 17
certify the agreement unless, it is satisfied-- 18
(a) the things required by sections 143, 144 and 14534 were done, 19
and in particular, the terms of the agreement were explained in a 20
way that was appropriate, having regard to the persons' particular 21
circumstances and needs; and 22
23
Examples of persons with particular circumstances and needs--
24
1. Women
25
2. Persons from a non-English speaking background
26
3. Young persons
27
4. Persons with limited literacy or numeracy skills.
34 Sections 143 (Proposed parties to be advised when agreement is proposed), 144
(What is to be done when an agreement is proposed) and 145 (Negotiations for
project agreements)
s 156 125 s 156
Industrial Relations
(b) the employer did not coerce, or attempt to coerce, an employee-- 1
(i) not to make a request mentioned in section 144(2)(c); or 2
(ii) to withdraw the request; and 3
(c) the agreement is in writing and signed by or for all the parties; and 4
(d) the agreement includes procedures for preventing and settling 5
disputes; and 6
(e) the agreement specifies a nominal expiry date that is-- 7
(i) for a project agreement--the date no later than the date on 8
which the project ends; and 9
(ii) for another agreement--a date no later than 3 years after the 10
date on which the agreement will come into operation; and 11
(f) the agreement contains, or is accompanied by, information 12
prescribed under a regulation; and 13
(g) a valid majority of the relevant employees employed at the time 14
approved the agreement; and 15
(h) the agreement passes the no-disadvantage test; and 16
(i) for a project agreement--each employee organisation that has 17
given notice of wanting to be party to the agreement under 18
section 143(4), and that has not withdrawn as a party under 19
section 145(3), is a party to the agreement; and 20
(j) for an agreement to be made with an employee organisation, other 21
than an agreement for a new business-- 22
(i) each employee organisation that is a party to the award or 23
industrial agreement that binds the employer, or would bind 24
the employer apart from an award under the Commonwealth 25
Act, is a party to the agreement; or 26
(ii) if no award or industrial agreement binds the 27
employer--each employee organisation that is entitled to 28
represent the industrial interests of the relevant employees is 29
a party to the agreement; and 30
(k) for an agreement for a new business-- 31
(i) the agreement was made before the employment of any of 32
s 157 126 s 157
Industrial Relations
the persons in the new business at the new workplace whose 1
employment will be subject to the agreement; and 2
(ii) the agreement has been made with 1 or more employee 3
organisations that are entitled to represent the industrial 4
interests of the persons. 5
(2) Subsection (1)(j) does not apply if the commission is satisfied an 6
employee organisation mentioned in subsection (1)(j)-- 7
(a) has been given the opportunity to be a party to the agreement, but 8
does not want to be a party; or 9
(b) has no members who are to be bound by the agreement. 10
commission to refuse to certify an agreement 11
When
157.(1) The commission must refuse to certify an agreement if it 12
considers that a provision of the agreement is inconsistent with-- 13
(a) a provision of-- 14
(i) chapter 2, part 5; or 15
(ii) chapter 3; or 16
(iii) chapter 4;35 or 17
(b) an order by the commission under any of those provisions; or 18
(c) an injunction granted by the commission under any of those 19
provisions. 20
(2) The commission must refuse to certify an agreement if satisfied-- 21
(a) the employer has, in connection with negotiating the agreement, 22
contravened-- 23
(i) section 170; or 24
(ii) chapter 4;36 or 25
35 Chapter 2, part 5 (Equal remuneration for work of equal or comparable value)
Chapter 3 (Dismissals)
Chapter 4 (Freedom of association)
36 Section 170 (Amendment if discrimination between unionists and non-unionists)
Chapter 4 (Freedom of association)
s 158 127 s 158
Industrial Relations
(b) the employer has caused an entity to engage, in connection with 1
negotiations for an agreement, in conduct that, had the employer 2
engaged in the conduct, would be a contravention by the employer 3
of-- 4
(i) section 170; or 5
(ii) chapter 4; or 6
(c) an entity has, for the employer-- 7
(i) engaged in conduct mentioned in paragraph (b); or 8
(ii) caused another entity to engage in the conduct. 9
(3) Subsection (2) does not apply if the commission is satisfied the 10
contravention or conduct, and its effects, have been fully remedied. 11
(4) The commission must refuse to certify an agreement if it considers a 12
provision of the agreement is a discriminatory provision. 13
(5) The commission must refuse to certify an agreement if-- 14
(a) the agreement applies only to a group or category of employees; 15
and 16
(b) the commission considers the agreement defines the group or 17
category in a way that results in the employees not being subject 18
to the agreement, if it would be reasonable for the employees to 19
be subject to the agreement, having regard to-- 20
(i) the nature of the work performed by the employees whose 21
employment is not subject to the agreement; and 22
(ii) the organisational and operational relationships between the 23
group or category and the rest of the employees; and 24
(c) the commission considers it unfair that the employment of those 25
employees is not subject to the agreement. 26
options open to commission instead of refusing to certify 27
Other
agreement 28
158.(1) If, under section 156 or 157, the commission has grounds to 29
refuse to certify an agreement-- 30
(a) the commission may accept an undertaking from 1 or more of the 31
s 159 128 s 159
Industrial Relations
persons who made the agreement in relation to the operation of 1
the agreement and, if satisfied the undertaking meets the 2
commission's concerns, certify the agreement; and 3
(b) before refusing to certify the agreement, the commission must 4
give the persons who made the agreement an opportunity to take 5
action that may be necessary to enable the commission to certify 6
the agreement. 7
(2) If an undertaking is not complied with, the commission, after giving 8
the persons who made the agreement an opportunity to be heard, may-- 9
(a) order the 1 or more persons who gave the undertaking to comply 10
with it; or 11
(b) terminate the agreement. 12
(3) If-- 13
(a) after doing the things required or allowed by subsection (1), the 14
commission is still required to refuse to certify the agreement; and 15
(b) it is so required only because of an inconsistency mentioned in 16
section 157(1); 17
the commission may conciliate the industrial matter concerned with a view 18
to helping the persons concerned to take the action necessary to enable the 19
commission to certify the agreement. 20
for preventing and settling disputes 21
Procedures
159. The procedures for preventing and settling disputes contained in a 22
certified agreement may, with the commission's approval, authorise the 23
commission to settle a dispute.37 24
37 Also see section 230 (Action on industrial dispute) for commission's powers to
prevent or settle industrial disputes.
s 160 129 s 161
Industrial Relations
Division 3--No-disadvantage test 1
an agreement passes the no-disadvantage test 2
When
160.(1) An agreement passes the no-disadvantage test if it does not 3
disadvantage employees in relation to their employment conditions. 4
(2) An agreement disadvantages employees only if the commission 5
considers it would result in a reduction in the employees' entitlements or 6
protections. 7
(3) Subsection (2) applies subject to section 161 and 162. 8
(4) Subsection (2) does not apply if the commission considers that, in the 9
context of the employment conditions considered as a whole, the reduction 10
is not against the public interest. 11
12
Example of subsection (4)--
13
The making of the agreement is part of a reasonable strategy to deal with a
14
short-term crisis in, and to help in the revival of, the single business or part.
(5) If the president considers exceptional circumstances exist, the 15
president may require the registrar to give the commission a report 16
comparing the agreement with the employee's entitlements or protections. 17
(6) In this section-- 18
"entitlements or protections" means the entitlements or protections 19
under-- 20
(a) a relevant award, designated award, industrial agreement, order 21
under part 5; or 22
(b) chapter 2, including as reviewed by a general ruling of the full 23
bench. 24
case--employee eligible for supported wage system 25
Special
161.(1) This section applies if a certified agreement provides for the 26
payment of wages to an employee who is eligible for the supported wage 27
system at a rate not less than the rate set in accordance with that system for 28
the employee. 29
(2) The agreement does not disadvantage the employee in relation to the 30
s 162 130 s 162
Industrial Relations
employee's employment conditions only because of the reduction of the 1
employee's wages. 2
case--employee undertaking approved apprenticeship or 3
Special
traineeship 4
162.(1) This section applies if-- 5
(a) a certified agreement provides for the payment of wages to an 6
employee undertaking approved training (a "training employee") 7
in a particular occupation or work, or occupation or work similar 8
to the particular occupation or work (the "work"); and 9
(b) there is a relevant award, designated award or order providing for 10
the payment of wages to employees undertaking benchmark 11
training for the work. 12
(2) The agreement is taken to disadvantage the training employee in the 13
employee's employment conditions if the agreement provides for the 14
payment of wages to the employee at a rate less than the rate payable to an 15
employee undertaking benchmark training (the "benchmark employee") 16
under the relevant award, designated award or order, as adjusted under 17
subsection (3). 18
(3) For subsection (2), the rate payable to a benchmark employee is to be 19
adjusted to take into account the proportionate difference, as decided by the 20
approving authority, between the productive time of a training employee and 21
the productive time of a benchmark employee. 22
(4) If the agreement adopts, as the qualification for a wage level, a 23
criterion decided by the approving authority (the "decided criterion") 24
instead of a specified criterion applying under the relevant award, designated 25
award or order (the "award criterion"), the award is taken, for this section, 26
to have effect as if the decided criterion were substituted for the award 27
criterion. 28
(5) This section does not apply to a trainee bound by-- 29
(a) the Training Wage Award--State; 30
(b) the National Training Wage Award 1994. 31
(6) In this section-- 32
s 163 131 s 164
Industrial Relations
"benchmark training" means training for an apprentice or trainee in a 1
particular trade, occupation or work if the trade, occupation or work is 2
recognised under an award or under an order made under 3
section 137.38 4
designated awards 5
Deciding
163.(1) This section applies if-- 6
(a) an employer or organisation of employees proposes to make a 7
certified agreement; and 8
(b) there is no relevant award for some or all of the persons to whom 9
the agreement will apply. 10
(2) The employer or organisation must apply to the commission for a 11
decision under subsection (3). 12
(3) On application, the commission must decide that an award (regulating 13
employment conditions of employees engaged in a similar kind of work as 14
the person under the proposed agreement) is appropriate for deciding 15
whether the agreement passes the no-disadvantage test. 16
(4) The commission must inform the employer or organisation in writing 17
of its decision. 18
Division 4--Effect of certified agreements 19
a certified agreement is in operation 20
When
164.(1) A certified agreement starts operating when it is certified. 21
(2) The agreement continues to operate until-- 22
(a) after its nominal expiry date, it is replaced by another certified 23
38 Section 137 (Order setting minimum wages and conditions)
s 165 132 s 166
Industrial Relations
agreement; or 1
(b) it is terminated under section 158, 171, 172 or 173.39 2
agreement's effect on awards, agreements or orders 3
Certified
165.(1) While a certified agreement operates, it prevails, to the extent of 4
any inconsistency, over an award or industrial agreement or an order made 5
under section 137. 6
(2) While a project agreement operates, it operates to the exclusion of any 7
other certified agreement or QWA. 8
ersons bound 9
P
166.(1) A certified agreement binds-- 10
(a) the employer-- 11
(i) for an agreement made by an organisation of employers for 12
a project--for whom the agreement was made; or 13
(ii) who made the agreement; and 14
(b) all persons who are, while the agreement operates, relevant 15
employees; and 16
(c) if the agreement is made with 1 or more employee 17
organisations--the 1 or more organisations. 18
(2) For a certified agreement made between the employees and employer, 19
the commission must decide that the agreement also binds an employee 20
organisation if-- 21
(a) before the agreement is certified, the organisation gives the 22
commission and employer notice that it wants to be bound by the 23
agreement; and 24
(b) the organisation satisfies the commission that-- 25
39 Section 158 (Other options open to commission instead of refusing to certify
agreement), 171 (Other options open to commission instead of refusing to
approve amendment of agreement), 172 (Terminating certified agreement on or
before its nominal expiry date) or 173 (Terminating agreement after its nominal
expiry date)
s 167 133 s 167
Industrial Relations
(i) the organisation has at least 1 member-- 1
(A) whose employment will be subject to the agreement; 2
and 3
(B) who asked the organisation to give the notice; and 4
(ii) the organisation-- 5
(A) is a party to an award or industrial agreement that binds 6
the employer, or would bind the employer apart from 7
an award under the Commonwealth Act; or 8
(B) if there is no award or agreement that binds, or would 9
bind, the employer--is entitled to represent the 10
industrial interests of the relevant employees. 11
employers bound 12
Successor
167.(1) This section applies if-- 13
(a) an employer is bound by a certified agreement; and 14
(b) at a later time a new employer becomes the successor (whether or 15
not immediate) of the whole or a part of the business of the 16
employer bound by the agreement. 17
(2) From the later time-- 18
(a) the new employer is bound by the certified agreement, to the 19
extent it relates to the whole or part of the business; and 20
(b) the previous employer stops being bound by the certified 21
agreement, to the extent it relates to the whole or part of the 22
business; and 23
(c) a reference in this part to the employer includes a reference to the 24
new employer, and ceases to refer to the previous employer, to 25
the extent the context relates to the whole or part of the business. 26
s 168 134 s 169
Industrial Relations
Division 5--Extending, amending or terminating certified agreements 1
a certified agreement 2
Extending
168.(1) On or before the nominal expiry date of a certified agreement, the 3
following persons may apply to the commission to extend a certified 4
agreement's nominal expiry date-- 5
(a) if 1 or more organisations are bound by the agreement--the 6
employer and the 1 or more organisations; 7
(b) otherwise--the employer. 8
(2) However, the nominal expiry date can not be extended beyond-- 9
(a) for a project agreement--the date on which the project ends; or 10
(b) for another agreement--3 years after the date on which the 11
agreement came into operation. 12
(3) The extension has no effect unless the commission approves it. 13
(4) The commission must approve the extension if, and must not 14
approve the extension unless, satisfied a valid majority of the relevant 15
employees at the time approved the extension. 16
(5) The extension takes effect when the commission's approval takes 17
effect. 18
(6) This section does not apply to-- 19
(a) an agreement made with an employee organisation for employees 20
proposed to be employed in a new business; or 21
(b) an agreement that was taken to pass the no-disadvantage test 22
under section 160.40 23
a certified agreement 24
Amending
169.(1) This section does not apply to an amendment of the parties to the 25
agreement, other than in a multi-employer agreement (a "multi-employer 26
amendment"). 27
40 Section 160 (When an agreement passes the no-disadvantage test)
s 169 135 s 169
Industrial Relations
(2) The following persons may apply to the commission to amend a 1
certified agreement-- 2
(a) if 1 or more organisations are bound by the agreement--the 3
employer and the 1 or more organisations; 4
(b) for a multi-employer amendment--the person who wants to 5
become a party to the agreement (the "new employer"); 6
(c) otherwise--the employer. 7
(3) The commission must approve the amendment if, and only if, 8
satisfied-- 9
(a) the amendment has been approved by-- 10
(i) for a multi-employer amendment-- 11
(A) a valid majority of the new employer's employees 12
whose employment will be subject to the amended 13
agreement; and 14
(B) the other parties to the agreement, or their 15
representative; or 16
(ii) for any other amendment--a valid majority of the relevant 17
employees at the time; and 18
(b) the commission would be required to certify the agreement as 19
amended if it were an agreement whose certification was applied 20
for under this part. 21
(4) In applying subsection (3)(b)-- 22
(a) a requirement about a majority of persons making or approving 23
the agreement is taken to be satisfied; and 24
(b) section 15841 is to be disregarded. 25
(5) The amendment takes effect when the commission's approval takes 26
effect. 27
(6) The commission may, on application by a person bound by a certified 28
agreement, amend a certified agreement-- 29
41 Section 158 (Other options open to commission instead of refusing to certify
agreement)
s 170 136 s 170
Industrial Relations
(a) to remove ambiguity; or 1
(b) to include, omit or amend a term, however specified, that allows 2
an employer to stand-down an employee; or 3
(c) in another way, if-- 4
(i) the following persons have agreed to the amendment-- 5
(A) for an agreement between the employer and an 6
employee organisation--the employer and organisation; 7
(B) for an agreement between the employer and 8
employees--the employer and a valid majority of the 9
relevant employees at the time; and 10
(ii) the commission is satisfied the amendment does not 11
disadvantage the relevant employees; and 12
(iii) the commission is satisfied exceptional circumstances have 13
arisen in the workplace that necessitate the amendment. 14
(7) A certified agreement may be amended only under-- 15
(a) this section (including as it applies under section 170); or 16
(b) section 168; or 17
(c) section 171. 18
if discrimination between unionists and non-unionists 19
Amendment
170.(1) This section applies if-- 20
(a) 1 or more employees whose employment is not subject to the 21
agreement ask the employer to-- 22
(i) amend the agreement so that their employment is subject to 23
the agreement; and 24
(ii) seek the approval of the commission for the amendment 25
under section 169; and 26
(b) their employment would be subject to the agreement if-- 27
(i) they were members of an employee organisation or of a 28
particular employee organisation; or 29
s 171 137 s 172
Industrial Relations
(ii) they were not members of an employee organisation or of a 1
particular employee organisation. 2
(2) The employer must seek the commission's approval to amend the 3
agreement in accordance with the request. 4
(3) The commission must disregard section 169(3)(a) in deciding 5
whether to approve the amendment. 6
options open to commission instead of refusing to approve 7
Other
amendment of agreement 8
171.(1) If, for section 170, the commission is not satisfied as required 9
under section 169(3)-- 10
(a) before refusing to approve the amendment, it must give the 11
persons who amended the agreement an opportunity to take action 12
necessary to enable the commission to approve the amendment; 13
or 14
(b) it may accept an undertaking from 1 or more of the persons who 15
amended the agreement in relation to the operation of the 16
agreement as amended and, if satisfied the undertaking meets the 17
commission's concerns, approve the amendment. 18
(2) If an undertaking is not complied with, the commission, after giving 19
the persons who amended the agreement an opportunity to be heard, may-- 20
(a) order the 1 or more persons who gave the undertaking to comply 21
with the undertaking; or 22
(b) undo any effect of the amendment; or 23
(c) terminate the amendment. 24
certified agreement on or before its nominal expiry date 25
Terminating
172.(1) On or before a certified agreement's nominal expiry date, the 26
following persons may terminate the agreement by notice-- 27
(a) if 1 or more organisations are bound by the agreement--the 28
employer and the 1 or more organisations; 29
(b) otherwise--the employer. 30
s 173 138 s 174
Industrial Relations
(2) The commission must approve the termination if, and only if, 1
satisfied a valid majority of the relevant employees at the time approve its 2
termination. 3
(3) The termination takes effect when the commission's approval takes 4
effect. 5
agreement after its nominal expiry date 6
Terminating
173.(1) After a certified agreement's nominal expiry date, the following 7
persons may apply to the commission to terminate a certified agreement-- 8
(a) the employer; 9
(b) a valid majority of the relevant employees; 10
(c) an employee organisation that is bound by the agreement and that 11
has at least 1 member who is a relevant employee. 12
(2) If the agreement does not provide for the way it may be terminated 13
after the agreement's nominal expiry date has passed, the person who 14
intends to apply to terminate it must give all other persons bound by the 15
agreement notice of the intention. 16
(3) The commission must approve the termination if, and only if, 17
satisfied-- 18
(a) for an agreement that provides that it may be terminated if certain 19
conditions are met--the conditions have been met; or 20
(b) for an agreement that does not provide for the way it may be 21
terminated--it is in the public interest to terminate the agreement. 22
(4) The termination takes effect when the commission's approval takes 23
effect. 24
6--Industrial action 25
Division
industrial action 26
Protected
174.(1) This section applies to industrial action that is organised, or 27
engaged in, by a protected person or the employer for the purpose of-- 28
(a) supporting or advancing claims made in relation to a proposed 29
s 174 139 s 174
Industrial Relations
agreement; or 1
(b) responding to industrial action by the employer or the relevant 2
employees. 3
(2) An action for the industrial action taken after the peace obligation 4
period does not lie under any law, unless the industrial action has involved 5
or is likely to involve-- 6
(a) personal injury; or 7
(b) wilful or reckless destruction of, or damage to, property; or 8
(c) the unlawful taking, keeping or use of property. 9
(3) However, subsection (2) applies to-- 10
(a) a strike by a protected person, only if the protected person has 11
genuinely tried to reach agreement before the strike starts; and 12
(b) a lockout by an employer, only if the employer has genuinely 13
tried to reach agreement before the lockout starts. 14
(4) Despite subsection (2), an action for defamation may be brought in 15
relation to anything that happened during the industrial action. 16
(5) If the employer lawfully locks out an employee, the employer may 17
refuse to pay the employee remuneration for the period of the lockout. 18
(6) The employer can not lock out an employee unless the continuity of 19
the employee's employment, for the purposes prescribed under a regulation, 20
is not affected by the lockout. 21
(7) In this section-- 22
"protected person" means-- 23
(a) an employee organisation that is a negotiating party; or 24
(b) an officer or employee of the employee organisation acting in that 25
capacity; or 26
(c) an employee who is a negotiating party or a member of the 27
employee organisation. 28
s 175 140 s 176
Industrial Relations
of industrial action to be given 1
Notice
175.(1) Section 174(2) does not apply to industrial action unless the 2
person intending to take the action gives all of the negotiating parties-- 3
(a) if the action is in response to, and is taken after the start of, 4
industrial action by another negotiating party in relation to a 5
proposed agreement--written notice of the intended action; or 6
(b) otherwise--at least 3 working days written notice of the intended 7
action. 8
(2) However, an employer who is negotiating an agreement with 9
employees may take other reasonable steps to notify the employees of the 10
intended action, instead of giving a written notice. 11
(3) A notice must state the nature of the intended action and the day when 12
it will begin. 13
(4) A notice may be given before the end of the peace obligation period if 14
the intended action does not start before the end of the period. 15
ballot about taking industrial action 16
Secret
176.(1) This section applies if the commission considers-- 17
(a) industrial action is being taken, or industrial action is threatened or 18
probable, in relation to a proposed certified agreement; and 19
(b) finding out the relevant employees' attitudes about the matters 20
giving rise to the industrial action might help-- 21
(i) to stop or prevent the industrial action; or 22
(ii) to settle the matters. 23
(2) The commission may order that a vote of employees be taken by 24
secret ballot42 (with or without a provision for absent voting), in accordance 25
with the commission's directions, to find out their attitudes about the 26
matters. 27
(3) After an order is made, the organising of, or engaging in, industrial 28
action by the employee organisation or employees is not protected industrial 29
42 See section 285 (Conducting a secret ballot)
s 177 141 s 177
Industrial Relations
action unless-- 1
(a) the ballot has been taken; and 2
(b) the industrial action has been approved by a majority of the valid 3
votes cast in the ballot. 4
(4) The commission must revoke the order if after an order is made, but 5
before the vote is taken, the commission forms the view that the ballot 6
should not proceed because it has satisfied itself that-- 7
(a) the matters have been, or are about to be, settled; or 8
(b) the industrial action has stopped or been prevented, or is about to 9
stop or be prevented. 10
(5) In subsection (3)-- 11
"organisation" includes-- 12
(a) a member of the organisation; and 13
(b) an officer or employee of the organisation acting in that capacity. 14
action must be properly authorised 15
Industrial
177.(1) Section 174 does not apply to industrial action engaged in by 16
members of an employee organisation that is a negotiating party unless, 17
before the industrial action begins-- 18
(a) the industrial action is properly authorised by the organisation's 19
management committee or someone authorised by the committee 20
to authorise the industrial action; and 21
(b) if the organisation's rules state the way industrial action is to be 22
authorised--the industrial action is properly authorised under the 23
rules; and 24
(c) notice of the giving of the authorisation is given to the registrar. 25
(2) Industrial action is taken to be properly authorised under an employee 26
organisation's rules even though a technical breach has happened in 27
authorising the industrial action, if the person who committed the breach 28
acted in good faith. 29
(3) Examples of a technical breach in authorising industrial action 30
include-- 31
s 178 142 s 179
Industrial Relations
(a) a contravention of the organisation's rules; and 1
(b) an error or omission in complying with this Act; and 2
(c) participation, by a person not eligible to do so, in the making of a 3
decision by a management committee, or by members, of the 4
organisation. 5
(4) Industrial action is taken to have been properly authorised under an 6
employee organisation's rules, and to have been authorised before the 7
industrial action began, unless-- 8
(a) the commission declares in proceedings that the industrial action 9
was not properly authorised under the rules; and 10
(b) the proceedings were brought in the commission within 6 months 11
after the notice was given to the registrar under subsection (1)(c). 12
(5) So far as an employee organisation's rules specify the way in which 13
industrial action under this division is to be authorised, the rules do not 14
contravene section 43543 unless the way specified contravenes that section. 15
protection if certification application not timely 16
No
178. Industrial action is not protected by section 174 unless an application 17
to the commission to certify an agreement is made within 21 days after the 18
day when the agreement is signed by or for all the parties. 19
not to dismiss employee for engaging in protected industrial 20
Employer
action 21
179.(1) An employer must not-- 22
(a) dismiss an employee, injure an employee in his or her 23
employment or change an employee's position to the employee's 24
prejudice; or 25
(b) threaten to dismiss an employee, injure an employee in his or her 26
employment or change an employee's position to the employee's 27
prejudice; 28
43 Section 435 (General restrictions)
s 180 143 s 180
Industrial Relations
wholly or partly because the employee is proposing to engage, is engaging, 1
or has engaged, in protected industrial action. 2
(2) Subsection (1) does not apply to any of the following actions taken by 3
the employer-- 4
(a) standing-down the employee; 5
(b) refusing to pay the employee if, under common law, the 6
employer is permitted to do so because the employee has not 7
performed work as directed; 8
(c) action of the employer that is itself protected industrial action. 9
(3) In proceedings under section 183 44 for an alleged contravention of 10
subsection (1), it is to be presumed, unless the employer proves otherwise, 11
that the alleged conduct of the employer was carried out wholly or partly 12
because the employee was proposing to engage, was engaging, or had 13
engaged, in protected industrial action. 14
if employee dismissed etc. for engaging in protected 15
Remedies
industrial action 16
180.(1) If an employer contravenes section 179(1), the commission may 17
order the employer-- 18
(a) if the contravention was constituted by dismissing an 19
employee--to reinstate the employee to the position the employee 20
occupied immediately before the dismissal or re-employ the 21
employee in a position at least as favourable as that position; and 22
(b) to pay the employee dismissed, injured or prejudiced, 23
compensation for loss suffered because of the dismissal, injury or 24
prejudice. 25
(2) The rights of and relating to reinstatement and re-employment that are 26
conferred on an employee by this section do not limit any other rights of the 27
employee. 28
44 Section 183 (Penalties for contravening penalty provisions)
s 181 144 s 182
Industrial Relations
industrial action must not be taken 1
When
181.(1) This section applies to-- 2
(a) a certified agreement from when it starts operating until its 3
nominal expiry date has passed; and 4
(b) a determination under section 14945 while it operates. 5
(2) The following persons must not engage in industrial action for the 6
purpose of supporting or advancing claims against the employer in relation 7
to the employment of employees whose employment is subject to the 8
agreement or determination-- 9
(a) an employee whose employment is subject to the agreement or 10
determination; 11
(b) an employee organisation that is bound by the agreement or 12
determination; 13
(c) an officer or employee of the employee organisation acting in that 14
capacity. 15
(3) If the employee, organisation or officer does so, the action is not 16
protected industrial action. 17
(4) The employer must not lock out an employee from his or her 18
employment for the purpose of supporting or advancing the employer's 19
claims in relation to the employment of employees whose employment is 20
subject to the agreement or determination. 21
(5) If the employer does so, the lockout is not protected industrial action. 22
7--Penalty provisions 23
Division
provisions 24
Penalty
182. In this division, each of the following is a "penalty provision"-- 25
(a) section 170(2);46 26
45 Section 149 (Arbitration if conciliation was unsuccessful)
46 Section 170 (Amendment if discrimination between unionists and non-unionists)
s 183 145 s 183
Industrial Relations
(b) section 179(1);47 1
(c) section 181(2) or (4); 2
(d) section 185 (1) or (3).48 3
for contravening penalty provisions 4
Penalties
183.(1) A contravention of a penalty provision is not an offence. 5
(2) However, a magistrate may, by order, impose a penalty on a person 6
who contravenes a penalty provision. 7
(3) The penalty can not be more than the amount of the monetary value 8
of-- 9
(a) for a corporation--135 penalty units; or 10
(b) otherwise--27 penalty units. 11
(4) An application for an order for a contravention of section 170(2) may 12
be made by-- 13
(a) the employees making the request mentioned in section 170; or 14
(b) an employee organisation of which any of the employees making 15
the request is a member; or 16
(c) an inspector; or 17
(d) another person prescribed under a regulation. 18
(5) An application for an order for a contravention of section 179(1) may 19
be made by-- 20
(a) the employee concerned; or 21
(b) an employee organisation of which the employee is a member; or 22
(c) an inspector; or 23
47 Section 179 (Employer not to dismiss employee for engaging in protected
industrial action)
48 Sections 170 (Amendment if discrimination between unionists and
non-unionists), 179 (Employer not to dismiss employee for engaging in protected
industrial action), 181 (When industrial action must not be taken) and 185
(Coercion of persons to make, amend or terminate certified agreements etc.)
s 183 146 s 183
Industrial Relations
(d) another person prescribed under a regulation. 1
(6) An application for an order for a contravention of section 181(2) 2
or (4) may be made by-- 3
(a) an employee whose employment is subject to the certified 4
agreement concerned; or 5
(b) another person who is bound by the agreement; or 6
(c) another person prescribed under a regulation. 7
(7) An application for an order for a contravention of section 185(1) 8
or (3)49 may be made by-- 9
(a) an employee whose employment is subject to the agreement, or 10
will be subject to the proposed agreement concerned; or 11
(b) another person bound by the agreement or who will be bound by 12
the proposed agreement; or 13
(c) the person who allegedly was intended to be coerced; or 14
(d) an employee organisation of which the person is a member; or 15
(e) an inspector; or 16
(f) another person prescribed under a regulation. 17
(8) The magistrate may order that a penalty, or part of a penalty, be paid 18
to any person who may have made the application (other than an officer or 19
employee of the State or a public service officer). 20
(9) Any part of the penalty that is ordered to be paid to the person must 21
first be paid to the person. 22
(10) The remainder of the penalty must be paid to the consolidated fund. 23
49 Section 185 (Coercion of persons to make, amend or terminate certified
agreements etc.)
s 184 147 s 185
Industrial Relations
Division 8--General 1
ballot on valid majority 2
Secret
184.(1) This section applies if-- 3
(a) the commission is required under this part to be satisfied that a 4
valid majority of the persons employed at a particular time whose 5
employment is or will be subject to an agreement have made or 6
terminated the agreement, or given an approval; and 7
(b) the commission is not so satisfied. 8
(2) The commission may order a vote be taken by secret ballot 50 (with or 9
without a provision for absent voting), in accordance with the commission's 10
directions, of employees whose employment is or will be subject to the 11
agreement to find out whether they would make or terminate the agreement, 12
or give the approval. 13
(3) If a majority of the validly cast votes is in favour of making or 14
terminating the agreement, or giving the approval, the commission is taken 15
to be satisfied of the requirement. 16
(4) Before a vote is taken, the commission may revoke an order under 17
subsection (2) if it becomes satisfied that the requirement of 18
subsection (1)(a) has been met. 19
of persons to make, amend or terminate certified agreements 20
Coercion
etc. 21
185.(1) A person must not take, or refrain from taking, industrial action 22
or other action with intent to coerce someone else to agree, or not to agree, 23
to-- 24
(a) making, amending or terminating, or extending the nominal 25
expiry date of, an agreement under this part; or 26
(b) approving anything mentioned in paragraph (a). 27
(2) Subsection (1) does not apply to industrial action that is protected 28
50 See section 285 (Conducting a secret ballot) for the way a secret ballot is
conducted.
s 186 148 s 187
Industrial Relations
industrial action. 1
(3) An employer must not coerce, or attempt to coerce, an employee of 2
the employer-- 3
(a) not to make a request mentioned in section 144(2)(c)51 in relation 4
to an agreement the employer proposes to make; or 5
(b) to withdraw the request. 6
(4) In this section-- 7
"take or refrain from taking" includes threaten to take or refrain from 8
taking. 9
laws 10
Complementary
186.(1) This section applies to enable the Australian commission to 11
perform functions or exercise powers. 12
(2) The Commonwealth Act, part VIB (and the other provisions of that 13
Act as far as they relate to part VIB) applies as a law of the State, with any 14
amendments prescribed under a regulation. 15
ART 2--QUEENSLAND WORKPLACE 16
P
AGREEMENTS 17
Division 1--Preliminary 18
for pt 2 19
Definitions
187. In this part-- 20
"additional approval requirements" means the additional approval 21
51 Section 144 (What is to be done when an agreement is proposed)
s 187 149 s 187
Industrial Relations
requirements in section 202.52 1
"amendment agreement" see section 197. 2
"ancillary document" means any of the following-- 3
(a) an amendment agreement; 4
(b) an extension agreement; 5
(c) a termination agreement; 6
(d) a termination notice. 7
"approval notice" means an approval notice issued by the commission. 8
"bargaining agent" means a person appointed as a bargaining agent under 9
section 196. 10
"certified copy" of a document means a copy that is certified as being a 11
true copy of the document. 12
"employee" see section 188(2). 13
"employer" see section 188(2). 14
"existing employee", in relation to a QWA, means an employee who 15
signed the QWA after commencing the employment to which the 16
QWA relates. 17
"extension agreement" means an agreement to extend the nominal expiry 18
date of a QWA. 19
"file" a QWA or ancillary document means file with the registrar or chief 20
inspector. 21
"filing receipt" means a receipt issued by the registrar or chief inspector. 22
"filing requirements" means the filing requirements in section 200. 23
"new employee", in relation to a QWA, means an employee who signed 24
the QWA before, or at the time of, commencing the employment to 25
which the QWA relates. 26
"nominal expiry date" of a QWA, see section 194. 27
"party" to a QWA or ancillary document means the employer or 28
52 Section 202 (Additional approval requirements for QWA and ancillary
documents)
s 188 150 s 189
Industrial Relations
employee. 1
"period of operation" of a QWA, see section 195. 2
"QWA" see sections 188 and 207. 3
"QWA date" means the date on which the employer and employee sign 4
the QWA or, if they sign on different dates, the later of the dates. 5
"refusal notice" means a refusal notice issued by the commission under 6
section 206. 7
"relevant or designated award" means the relevant or designated award 8
that is used when applying the no-disadvantage test. 9
"required number of days" means-- 10
(a) for a new employee--5 days; or 11
(b) for an existing employee--14 days. 12
"termination agreement" see section 198(1). 13
"termination notice" see section 198(3). 14
QWAs and ancillary documents--interpretation 15
Proposed
188.(1) As far as the context permits, a reference in this part to a QWA 16
or ancillary document includes a reference to a proposed QWA or ancillary 17
document. 18
(2) In relation to a proposed QWA or ancillary document, a reference in 19
this part to the employer or employee is a reference to the person who will 20
be the employer or employee when the QWA or ancillary document starts 21
to operate. 22
and powers of commission 23
Functions
189.(1) The commission must, as far as practicable, perform its 24
functions under this part-- 25
(a) in a way that furthers the objects of this Act; and 26
(b) without undue delay; and 27
(c) in an informal way. 28
s 190 151 s 192
Industrial Relations
(2) Section 320(4)53 does not apply to the performance of the 1
commission's functions under this part. 2
Division 2--General rules about QWAs and ancillary documents 3
and ancillary documents only have effect as provided by this 4
QWAs
part 5
190.(1) A QWA or ancillary document has effect as provided by this 6
part, and not otherwise. 7
(2) In particular-- 8
(a) a QWA for a new employee has no effect before a filing receipt is 9
issued for the QWA; and 10
(b) a QWA for an existing employee has no effect before an approval 11
notice is issued for the QWA. 12
QWAs 13
Collective
191.(1) In this part, 2 or more agreements negotiated collectively may be 14
included in the same document if the same employer is a party to all the 15
agreements. 16
(2) The agreements need not be in the same terms. 17
(3) A QWA for a new employee can not be included in the same 18
document as a QWA for an existing employee. 19
Division 3--Making, amending or terminating a QWA 20
and employee may make a QWA 21
Employer
192.(1) A single employer and a single employee, other than an 22
employer and employee mentioned in subsection (3), may make a QWA 23
that deals with matters relating to the relationship between an employer and 24
employee. 25
53 Section 320 (Basis of decisions of the commission and magistrates)
s 193 152 s 193
Industrial Relations
(2) A QWA may be made before the start of employment. 1
(3) The employer of an employee employed in 1 of the following may 2
not make a QWA with the employee-- 3
(a) a department of government or part of a department; 4
(b) a public service office or part of a public service office under the 5
Public Service Act 1996; 6
(c) an agency, authority, commission, corporation, instrumentality, 7
office, or other entity, established under an Act or under State 8
authorisation for a public or State purpose; 9
(d) a part of an entity mentioned in paragraph (c); 10
(e) a registry or other administrative office of a court of the State of 11
any jurisdiction; 12
(f) the parliamentary service; 13
(g) the Governor's official residence (known as `Government 14
House') and its associated administrative unit; 15
(h) a court of the State of any jurisdiction; 16
(i) the police service to the extent that it does not include staff 17
members mentioned in the Police Service Administration 18
Act 1990, section 2.5(1)(a);54 19
(j) another entity, or part of another entity, declared under a 20
regulation for this section. 21
(4) The employer may not make a QWA with an employee who is under 22
18 years. 23
to be included in QWA 24
Matters
193.(1) The employer must ensure the QWA includes the provisions 25
about discrimination prescribed under a regulation. 26
(2) If the QWA does not in fact include the prescribed provisions about 27
discrimination, the QWA is taken to include the provisions. 28
54 Police Service Administration Act 1990, section 2.5 (Administration of staff
members)
s 194 153 s 195
Industrial Relations
(3) The employer must ensure the QWA does not include provisions that 1
prohibit or restrict disclosure of details of the QWA by either party to 2
another person. 3
(4) The employer must ensure the QWA includes a dispute resolution 4
procedure. 5
(5) If the QWA does not include a dispute resolution procedure, the 6
QWA is taken to include the model dispute resolution procedure prescribed 7
under a regulation. 8
(6) If a dispute resolution procedure confers powers on the commission 9
to prevent or settle disputes between the parties to the QWA about the 10
application or interpretation of the QWA, the commission may exercise the 11
powers. 12
(7) To avoid doubt, unless power is conferred on the commission to 13
prevent or settle disputes, the commission must not exercise arbitration 14
powers to prevent or settle a dispute between the parties to the QWA. 15
expiry date of QWA 16
Nominal
194.(1) A QWA must specify a date as its nominal expiry date. 17
(2) The date can not be more than 3 years after the QWA date. 18
(3) An employer and employee may make a written agreement (an 19
"extension agreement") that extends the nominal expiry date. 20
(4) The extended date can not be more than 3 years after the QWA date. 21
(5) The extension agreement has no effect unless a filing receipt is issued 22
for the extension agreement at least 21 days before the nominal expiry date 23
that is to be extended. 24
(6) The extension agreement takes effect on the day after an approval 25
notice is issued for the extension agreement. 26
of operation of QWA 27
Period
195.(1) A QWA for a new employee starts operating on the later of the 28
following days-- 29
(a) the day after a filing receipt is issued for the QWA; 30
s 196 154 s 196
Industrial Relations
(b) the day specified in the QWA as the starting day; 1
(c) the day the employee's employment starts. 2
(2) A QWA for a new employee stops operating at the earlier of the 3
following times-- 4
(a) the end of the day when a refusal notice is issued for the QWA; 5
(b) the time when a termination under section 19855 takes effect; 6
(c) the time when another QWA between the employer and 7
employee starts to operate. 8
(3) A QWA for an existing employee starts operating on the later of the 9
following days-- 10
(a) the day after an approval notice is issued for the QWA; 11
(b) the day specified in the QWA as the starting day. 12
(4) A QWA for an existing employee stops operating at the earlier of the 13
following times-- 14
(a) the time when a termination under section 198 takes effect; 15
(b) the time when another QWA between the employer and 16
employee starts to operate. 17
agents 18
Bargaining
196.(1) An employer or employee may appoint a person to be his or her 19
bargaining agent for the making, approval, amendment or termination of a 20
QWA. 21
22
Example--
23
An employee may appoint an employee organisation to be the employee's
24
bargaining agent.
(2) When the employer proposes the QWA, the employer must inform 25
the employee of his or her right under subsection (1). 26
(3) The appointment of a bargaining agent must be written. 27
(4) An employer or employee must not refuse to recognise a bargaining 28
55 Section 198 (Terminating a QWA)
s 197 155 s 198
Industrial Relations
agent appointed by the other party if the employer or employee has been 1
given a copy of the bargaining agent's instrument of appointment. 2
(5) An employer or employee must not coerce, or attempt to coerce, the 3
other party-- 4
(a) to appoint, or not to appoint, a particular person as a bargaining 5
agent; or 6
(b) to terminate the appointment of a bargaining agent. 7
mending a QWA 8
A
197.(1) An employer and employee may make a written agreement 9
("amendment agreement") amending a QWA. 10
(2) The amendment agreement takes effect on the later of the following 11
days-- 12
(a) the day after an approval notice is issued for the amendment 13
agreement; 14
(b) the day specified in the amendment agreement as the date it takes 15
effect. 16
(3) Section 193 applies to the QWA as amended in the same way as it 17
applied to the QWA before amendment. 18
a QWA 19
Terminating
198.(1) The employer and employee may at any time make a written 20
agreement ("termination agreement") to terminate the QWA. 21
(2) The termination agreement takes effect at the later of the following 22
times-- 23
(a) the end of the day on which an approval notice is issued for the 24
termination agreement; 25
(b) the day specified in the termination agreement as the date it takes 26
effect. 27
(3) After the nominal expiry date of a QWA, the employer or employee 28
may file a notice ("termination notice") to terminate the QWA. 29
s 199 156 s 200
Industrial Relations
(4) The termination notice takes effect at the end of 28 days after the party 1
filing the termination notice gave notice to the other party of the filing of the 2
termination notice. 3
4--Filing QWAs and ancillary documents 4
Division
QWAs and ancillary documents 5
Filing
199.(1) A QWA or ancillary document ("document") may be filed with 6
the registrar or chief inspector. 7
(2) If the registrar or chief inspector is satisfied that the filing 8
requirements for the document have been met, the registrar or chief 9
inspector must issue a filing receipt to the person who filed it. 10
(3) For a QWA, the registrar or chief inspector may issue a filing receipt 11
only if it is filed within 14 days after the QWA date. 12
(4) If the document is filed with the chief inspector, the chief inspector 13
must immediately give it to the registrar. 14
requirements 15
Filing
200.(1) The filing requirements for a QWA are-- 16
(a) the QWA must be signed and dated by each of the parties, and the 17
signatures must be witnessed; and 18
(b) the QWA must be accompanied by a declaration by the employer, 19
declaring-- 20
(i) the QWA complies with section 193; and 21
(ii) the employer gave the employee a copy of an information 22
statement at least the required number of days before the 23
employee signed the QWA. 24
(2) The chief inspector must prepare an information statement for 25
subsection (1). 26
(3) The information statement must include information about the 27
following matters, but may include other information-- 28
(a) entitlements under this Act; 29
s 201 157 s 202
Industrial Relations
(b) occupational health and safety law; 1
(c) services provided by the chief inspector; 2
(d) bargaining agents. 3
(4) The filing requirements for an amendment agreement are-- 4
(a) the agreement must be signed and dated by each of the parties, 5
and the signatures must be witnessed; and 6
(b) the agreement must be accompanied by a declaration by the 7
employer, declaring the QWA, as amended, complies with 8
section 193. 9
(5) The filing requirement for an extension agreement is the agreement 10
must be signed and dated by each of the parties, and the signatures must be 11
witnessed. 12
(6) The filing requirement for a termination agreement is the agreement 13
must be signed and dated by each of the parties, and the signatures must be 14
witnessed. 15
(7) The filing requirement for a termination notice is the notice must be 16
signed and dated by the party filing the notice, and the signature must be 17
witnessed. 18
(8) The employer must provide any other information required under a 19
regulation. 20
declaration must be accurate 21
Employer's
201. An employer must not, in a declaration filed for this part, make a 22
statement that the employer knows, or ought reasonably to know, is false or 23
misleading. 24
5--Approving QWAs and ancillary documents 25
Division
approval requirements for QWA and ancillary documents 26
Additional
202.(1) The additional approval requirements for a QWA are-- 27
s 202 158 s 202
Industrial Relations
(a) the QWA complies with section 193;56 and 1
(b) the employee received a copy of the QWA at least the required 2
number of days before signing the QWA; and 3
(c) the employer explained the effect of the QWA to the employee as 4
soon as practicable after the employee first received a copy of it; 5
and 6
(d) the employee consented to making the QWA; and 7
(e) if the employer did not offer a QWA in the same terms to all 8
comparable employees--the employer did not act unfairly or 9
unreasonably in not doing so. 10
(2) The employee may consult with, or seek advice from, anyone about 11
the QWA given to the employee under subsection (1)(b) and the copy is the 12
property of the employee. 13
(3) The additional approval requirements for an amendment agreement 14
are-- 15
(a) the QWA, as amended, complies with section 193; and 16
(b) the employee received a copy of the amendment agreement at 17
least 14 days before signing the amendment agreement; and 18
(c) the employer explained the effect of the amendment agreement to 19
the employee as soon as practicable after the employee first 20
received a copy of it; and 21
(d) the employee consented to making the amendment agreement; 22
and 23
(e) if the employer did not offer an amendment agreement in the 24
same terms to all comparable employees who also have a QWA 25
in the same terms--the employer did not act unfairly or 26
unreasonably in not doing so. 27
(4) The explanation of the effect of the QWA or amendment agreement 28
mentioned in subsection (1) or (3) must have been done in a way that was 29
appropriate, having regard to the employee's particular circumstances and 30
needs. 31
56 Section 193 (Matters to be included in QWA)
s 203 159 s 203
Industrial Relations
1
Example of employees with particular circumstances and needs--
2
1. Women
3
2. Persons from a non-English speaking background
4
3. Young persons
5
4. Persons with limited literacy or numeracy skills.
(5) The additional approval requirement for an extension agreement is 6
that the employee consented to making the extension agreement. 7
(6) The additional approval requirement for a termination agreement is 8
that the employee consented to making the termination agreement. 9
(7) In this section-- 10
"comparable employee", for a QWA, means an employee of the employer 11
who does the same kind of work as the employee who is a party to the 12
QWA. 13
pproving QWA 14
A
203.(1) The commission must approve a QWA for which a filing receipt 15
has been issued if satisfied-- 16
(a) the QWA passes the no-disadvantage test; and 17
(b) the QWA meets the additional approval requirements; and 18
(c) the QWA is not contrary to the public interest. 19
(2) If the commission has concerns about whether the QWA passes the 20
no-disadvantage test, the commission must-- 21
(a) notify the employee of the concerns; and 22
(b) the reasons for them. 23
(3) If the commission has concerns about whether the QWA passes the 24
no-disadvantage test, but the concerns are resolved by-- 25
(a) a written undertaking given by the employer and accepted by the 26
commission; or 27
(b) other action by the parties; 28
the QWA is taken to pass the no-disadvantage test. 29
s 204 160 s 204
Industrial Relations
(4) If the commission-- 1
(a) is still not satisfied the QWA passes the no-disadvantage test; but 2
(b) is satisfied that approving the QWA is not contrary to the public 3
interest; 4
the QWA is taken to pass the no-disadvantage test. 5
(5) If the commission is not satisfied the QWA meets the additional 6
approval requirements, the commission must refuse to approve the QWA. 7
(6) In considering the public interest, the commission may consider-- 8
(a) the relative bargaining power of the parties; and 9
(b) the particular circumstances and needs of low-paid employees and 10
any likely changes in award wages during the period of the 11
QWA; and 12
(c) the particular circumstances and needs of employees including 13
women, persons from a non-English speaking background, 14
young persons, apprentices, trainees and outworkers; and 15
(d) anything else the commission considers relevant to the QWA. 16
amendment agreement 17
Approving
204.(1) The commission must approve an amendment agreement for 18
which a filing receipt has been issued if satisfied-- 19
(a) the QWA, as amended, passes the no-disadvantage test; and 20
(b) the agreement meets the additional approval requirements; and 21
(c) the QWA is not contrary to the public interest. 22
(2) If the commission has concerns about whether the QWA, as 23
amended, passes the no-disadvantage test, but the concerns are resolved 24
by-- 25
(a) a written undertaking given by the employer and accepted by the 26
commission; or 27
(b) other action by the parties; 28
the QWA, as amended, is taken to pass the no-disadvantage test. 29
s 205 161 s 206
Industrial Relations
(3) If the commission-- 1
(a) is still not satisfied the QWA passes the no-disadvantage test; but 2
(b) is satisfied that approving the QWA is not contrary to the public 3
interest; 4
the QWA, as amended, is taken to pass the no-disadvantage test. 5
(4) If the commission is not satisfied the amendment agreement meets 6
the additional approval requirements, the commission must refuse to 7
approve the amendment agreement. 8
(5) In considering the public interest, the commission may consider-- 9
(a) the relative bargaining power of the parties; and 10
(b) the particular circumstances and needs of low-paid employees and 11
any likely changes in award wages during the period of the 12
agreement; and 13
(c) the particular circumstances and needs of employees including 14
women, persons from a non-English speaking background, 15
young persons, apprentices, trainees and outworkers; and 16
(d) anything else the commission considers relevant to the agreement. 17
other ancillary documents 18
Approving
205.(1) This section applies to the following ancillary documents-- 19
(a) an extension agreement; 20
(b) a termination agreement; 21
(c) a termination notice. 22
(2) The commission may approve the ancillary document only if satisfied 23
the ancillary document meets the additional approval requirements for the 24
document. 25
must issue approval or refusal notice 26
Commission
206.(1) If the commission approves a QWA or ancillary document, the 27
commission must issue an approval notice to the employer. 28
(2) If the commission refuses to approve a QWA or ancillary document, 29
s 207 162 s 209
Industrial Relations
the commission must issue a refusal notice to the employer. 1
(3) If the commission is not satisfied the QWA passes or is taken to pass 2
the no-disadvantage test, the commission must issue a notice to that effect to 3
the employee. 4
(4) In each approval or refusal notice, the commission must identify the 5
relevant or designated award that applies to the QWA. 6
taken to be included in QWAs 7
Undertakings
207. An undertaking accepted by the commission under this division is 8
taken to be included in the QWA. 9
to issue copies of approved QWAs and ancillary 10
Commission
documents 11
208. After a QWA or ancillary document is approved, the commission 12
must issue to the employer a copy of the QWA or ancillary document, as 13
approved. 14
Division 6--No-disadvantage test 15
does a QWA pass the no-disadvantage test 16
When
209.(1) A QWA passes the no-disadvantage test if it does not 17
disadvantage the employee in relation to his or her employment conditions. 18
(2) A QWA disadvantages the employee in relation to his or her 19
employment conditions only if the commission considers its approval 20
would result in a reduction in the employee's entitlements and protections. 21
(3) Subsection (2) applies subject to sections 161 and 162.57 22
(4) If the president considers exceptional circumstances exist, the 23
president may require the registrar to give the commission a report 24
comparing the QWA with the employee's entitlements and protections. 25
57 Section 161 (Special case--employee eligible for supported wage system)
Section 162 (Special case--employee undertaking approved apprenticeship or
traineeship)
s 210 163 s 211
Industrial Relations
(5) In this section-- 1
"certified agreement" means a certified agreement that, immediately 2
before the initial day of the QWA, binds the employer. 3
"entitlements and protections" means the entitlements and protections 4
under-- 5
(a) if there is a certified agreement--the certified agreement; or 6
(b) if there is no certified agreement--a relevant award, a designated 7
award, industrial agreement or an order under chapter 5, part 5;58 8
or 9
(c) chapter 2,59 including as reviewed by a general ruling of the full 10
bench. 11
case--employee eligible for supported wage system 12
Special
210.(1) This section applies if a QWA provides for the payment of 13
wages to an employee who is eligible for the supported wage system at a 14
rate not less than the rate set in accordance with that system for the 15
employee. 16
(2) The agreement does not disadvantage the employee in relation to the 17
employee's employment conditions only because of the reduction of the 18
employee's wages. 19
case--employee undertaking approved apprenticeship or 20
Special
traineeship 21
211.(1) This section applies if-- 22
(a) a QWA provides for the payment of wages to an employee 23
undertaking approved training (a "training employee") in a 24
particular occupation or work, or an occupation or work similar to 25
the particular occupation or work (the "work"); and 26
(b) there is a relevant award, designated award or order providing for 27
58 Chapter 5, part 5 (Wages and employment conditions for apprentices and
trainees)
59 Chapter 2 (General employment conditions)
s 212 164 s 212
Industrial Relations
the payment of wages to employees undertaking benchmark 1
training for the work. 2
(2) The agreement is taken to disadvantage the training employee in the 3
employee's employment conditions if the QWA provides for the payment 4
of wages to the employee at a rate less than the rate payable to an employee 5
undertaking the benchmark training (the "benchmark employee") under 6
the relevant award, designated award or order, as adjusted under 7
subsection (3). 8
(3) For subsection (2), the rate payable to a benchmark employee is to be 9
adjusted to take into account the proportionate difference, as decided by the 10
approving authority, between the productive time of a training employee and 11
the productive time of a benchmark employee. 12
(4) If the QWA adopts, as the qualification for a wage level, a criterion 13
decided by the approving authority (the "decided criterion") instead of a 14
specified criterion applying under the relevant award, designated award or 15
order (the "award criterion"), the award is taken, for this section, to have 16
effect as if the decided criterion were substituted for the award criterion. 17
(5) This section does not apply to a trainee bound by-- 18
(a) the Training Wage Award--State; 19
(b) the National Training Wage Award 1994. 20
(6) In this section-- 21
"benchmark training" means training for an apprentice or trainee in a 22
particular trade, occupation or work if the trade, occupation or work is 23
recognised under an award or under an order made under chapter 5, 24
part 5.60 25
designated awards 26
Deciding
212.(1) This section applies if-- 27
(a) an employer proposes to make a QWA with a person; and 28
(b) there is no relevant award for the person. 29
60 Chapter 5, part 5 (Wages and employment conditions for apprentices and
trainees)
s 213 165 s 214
Industrial Relations
(2) The employer must apply to the commission for a decision under 1
subsection (3). 2
(3) On application, the commission must decide that an award (regulating 3
employment conditions of employees engaged in a similar kind of work as 4
the person under the QWA) is appropriate for deciding whether the QWA 5
passes the no-disadvantage test. 6
(4) The commission must inform the employer in writing of the 7
commission's decision. 8
Division 7--Effect of QWAs 9
effect on awards, certified agreements or orders 10
QWA's
213.(1) A QWA, during its period of operation, operates to the exclusion 11
of an award, or an order made under chapter 5, part 5, that would otherwise 12
apply to the employee's employment. 13
(2) A certified agreement or a determination under section 149,61 during 14
its period of operation, prevails over a QWA to the extent of any 15
inconsistency unless the certified agreement or determination contains a 16
QWA provision. 17
(3) In this section-- 18
"QWA provision" of a certified agreement means a provision that 19
expressly allows a subsequent QWA-- 20
(a) to operate to the exclusion of the certified agreement; or 21
(b) to prevail over the certified agreement to a specified extent or to 22
the extent of any inconsistency. 23
employers bound 24
Successor
214.(1) This section applies if-- 25
(a) an employer is a party to a QWA; and 26
(b) at a later time a new employer becomes the successor (whether or 27
61 Section 149 (Arbitration if conciliation unsuccessful)
s 215 166 s 218
Industrial Relations
not immediate) of the whole or part of the business of the 1
employer who is a party to the QWA. 2
(2) From the later time-- 3
(a) the new employer replaces the employer as a party to the QWA; 4
and 5
(b) the previous employer stops being a party to the QWA, to the 6
extent it relates to the whole or part of the business; and 7
(c) a reference in this part to the employer is a reference to the new 8
employer, and ceases to refer to the previous employer, to the 9
extent the context relates to the whole or part of the business 10
must not contravene QWA 11
Parties
215. A party to a QWA must not contravene the QWA. 12
for agreements 13
Conciliation
216. The commission has the conciliation powers for a matter arising 14
under this part that it would have under section 23062 if that section applied 15
to the matter instead of to industrial disputes. 16
action by party to QWA 17
Industrial
217. During the period of operation of a QWA before its nominal expiry 18
date, a party to the QWA must not engage in industrial action in relation to 19
the employment to which the QWA relates. 20
Division 8--Penalty provisions and remedies 21
for contravening this part 22
Penalties
218.(1) A magistrate may, by order, impose a penalty on a person who 23
contravenes a penalty provision. 24
62 Section 230 (Action on industrial dispute)
s 219 167 s 220
Industrial Relations
(2) The penalty can not be more than-- 1
(a) for a corporation--135 penalty units; or 2
(b) otherwise--27 penalty units. 3
(3) An application for an order relating to a QWA or ancillary document 4
may be made by-- 5
(a) a party to the QWA or ancillary document; or 6
(b) an inspector. 7
(4) In this section-- 8
"penalty provision" means section 196(2), (3), (4) or (5), 201, 215, 217, 9
222(1), 223(1) or (2) or 224(1) or (2).63 10
for contravention of QWA 11
Damages
219.(1) A party to a QWA who suffers loss or damage because of a 12
contravention of the QWA by the other party may recover the amount of the 13
loss or damage in an Industrial Magistrates Court. 14
(2) The action must be brought within 6 years after the date on which the 15
cause of action arose. 16
to new employee for shortfall in entitlements 17
Compensation
220.(1) Subsection (3) applies if a QWA for a new employee stops 18
operating because a refusal notice was issued and the amount worked out 19
under paragraph (a) is less than the amount worked out under 20
paragraph (b)-- 21
(a) the total value of the entitlements to which the employee became 22
entitled under the QWA for the period while it was in operation; 23
(b) the total value of the entitlements to which the employee would 24
have been entitled for that period under an award or agreement, if 25
63 Section 196 (Bargaining agents), 201 (Employer's declaration must be
accurate), 215 (Parties must not contravene QWA), 217 (Industrial action by
party to QWA), 222 (Hindering QWA negotiations), 223 (Persons must not apply
duress or make false statements in connection with QWA etc.) or 224 (Employer
must give copy of documents to employee)
s 221 168 s 222
Industrial Relations
the QWA had not been made, in relation to the employment to 1
which the QWA relates. 2
(2) Subsection (3) applies if a QWA that has been approved for a new 3
employee includes an undertaking by the employer under section 20364 and 4
the amount worked out under paragraph (a) is less than the amount worked 5
out under paragraph (b)-- 6
(a) the total value of the entitlements to which the employee became 7
entitled under the QWA for the period before it was approved; 8
(b) the total value of the entitlements to which the employee would 9
have been entitled for that period if the QWA as filed, had 10
included the employer's undertaking. 11
(3) The employee is entitled to recover the shortfall from the employer in 12
the commission or an Industrial Magistrates Court. 13
njunctions 14
I
221. The commission, on application by a party to a QWA, may grant an 15
injunction requiring a person not to contravene, or to stop contravening, this 16
part. 17
Division 9--General 18
QWA negotiations 19
Hindering
222.(1) A person who is not a party to negotiations for a QWA or 20
ancillary document must not use threats or intimidation with the intention of 21
hindering the negotiations or the making of the QWA or ancillary 22
document. 23
(2) This section does not apply to conduct by or for an employee 24
organisation for the purpose of negotiating a certified agreement, if the 25
conduct is authorised by another provision of this Act. 26
(3) In this section-- 27
"party to negotiations" includes a bargaining agent. 28
64 Section 203 (Approving QWA)
s 223 169 s 226
Industrial Relations
must not apply duress or make false statements in connection 1
Persons
with QWA etc. 2
223.(1) A person must not apply duress to an employer or employee in 3
connection with a QWA or ancillary document. 4
(2) A person must not knowingly make a false or misleading statement 5
to someone else with the intention of persuading the other person to make, 6
or not to make, a QWA or ancillary document. 7
must give copy of documents to employee 8
Employer
224.(1) As soon as practicable after receiving any of the following 9
documents from the commission, registrar or chief inspector, the employer 10
must give a copy of it to the employee-- 11
(a) a filing receipt; 12
(b) an approval notice or refusal notice; 13
(c) a QWA or ancillary document, as approved. 14
(2) The employer must give the employee any other document prescribed 15
under a regulation within the period required under the regulation. 16
not permitted 17
Intervention
225. A person other than-- 18
(a) a party to a QWA; or 19
(b) a party's bargaining agent; or 20
(c) the Minister; 21
can not make submissions, or be heard, in relation to the filing, approval, 22
amendment or termination of a QWA. 23
and advice about development in making QWAs 24
Reports
226.(1) If the Minister asks, the chief executive must prepare and give to 25
the Minister a report about developments in the State in bargaining for the 26
making of QWAs. 27
(2) To enable the chief executive to prepare the report and generally to 28
s 227 170 s 228
Industrial Relations
advise the Minister, the registrar must allow access to approved QWAs and 1
ancillary documents to-- 2
(a) the chief executive; or 3
(b) the chief executive's agent. 4
5
Evidence
227.(1) The registrar may give a certified copy of an approved QWA or 6
ancillary document to a person who is or was a party to the QWA or 7
ancillary document. 8
(2) The registrar may issue a certificate stating-- 9
(a) specified QWAs or ancillary documents are the only QWAs or 10
ancillary documents that were filed, before a specified date, in 11
relation to a specified employer and employee; or 12
(b) a copy of a specified approved QWA or ancillary document was 13
issued on a specified day; or 14
(c) a filing receipt, approval notice or refusal notice was issued for a 15
specified QWA or ancillary document on a specified day. 16
(3) The certificate may be given only to a person who is or was a party to 17
the document to which the certificate relates. 18
(4) In all courts and proceedings-- 19
(a) a certified copy of an approved QWA or ancillary document is 20
evidence of the QWA or ancillary document; and 21
(b) a certificate issued by the registrar under subsection (2) is 22
evidence of the matters stated in the certificate. 23
(5) A document that purports to be a certified copy, or certificate, 24
mentioned in subsection (4) is taken to be the copy or certificate, unless the 25
contrary is proved. 26
for corporation 27
Signature
228. A QWA or ancillary document may be signed for a corporation by 28
a properly authorised officer of the corporation and need not be made under 29
the corporation's seal. 30
s 229 171 s 229
Industrial Relations
CHAPTER 7--INDUSTRIAL DISPUTES 1
ART 1--NOTICE OF INDUSTRIAL DISPUTE 2
P
of industrial dispute 3
Notice
229.(1) Subsection (2) applies if an industrial dispute-- 4
(a) exists between-- 5
(i) an employer organisation or employer; and 6
(ii) an employee organisation or employee; and 7
(b) remains unresolved after the parties have genuinely attempted to 8
settle the dispute. 9
(2) Each party to the dispute must immediately give the registrar notice 10
of the dispute. 11
(3) The notice-- 12
(a) may be given by letter, telex, fax, email, or other means of written 13
communication; and 14
(b) must state-- 15
(i) the names of the parties to the dispute; and 16
(ii) the place where the dispute exists; and 17
(iii) the subject matter of the dispute; and 18
(iv) anything else required under the rules. 19
(4) If the Minister is aware an industrial dispute exists, the Minister may 20
notify the commission or registrar of the dispute. 21
s 230 172 s 230
Industrial Relations
ART 2--ACTION FOR SETTLING INDUSTRIAL 1
P
DISPUTES 2
on industrial dispute 3
Action
230.(1) This section applies if-- 4
(a) notice of a dispute has been given by a party under section 229(2); 5
or 6
(b) notice of a dispute has been given by the Minister under 7
section 229(4) and the commission considers it is in the public 8
interest to take action under this section; or 9
(c) whether or not a notice has been given under section 229--the 10
commission considers it is in the public interest to take action 11
under this section. 12
(2) Subsection (1)(c) applies irrespective of whether the parties are 13
attempting to resolve the dispute. 14
(3) The commission may take the steps it considers appropriate for the 15
prevention or prompt settlement of the dispute, by-- 16
(a) conciliation in the first instance; and 17
(b) if the commission considers conciliation has failed and the parties 18
are unlikely to resolve the dispute--arbitration. 19
(4) Without limiting subsection (3), the commission may-- 20
(a) direct the industrial action to stop or not happen; or 21
(b) make orders, or give directions, of an interlocutory nature; or 22
(c) exercise the commission's powers under section 27765 (whether 23
or not application under that section has been made) to grant an 24
interim injunction; or 25
(d) make another order or exercise another power the commission 26
considers appropriate for the prevention or prompt settlement of 27
the dispute. 28
65 Section 277 (Power to grant injunctions)
s 231 173 s 232
Industrial Relations
(5) For proceedings for the dispute-- 1
(a) the commission may name a party to the dispute as having 2
carriage of the proceedings; and 3
(b) the party named has the carriage of the proceedings accordingly. 4
(6) This section does not affect the operation of an industrial instrument 5
that imposes a duty on a party to the instrument in relation to industrial 6
disputes. 7
by commission 8
Mediation
231. The commission may act as mediator in an industrial cause, whether 9
or not it is within the jurisdiction of the commission-- 10
(a) on the request of the parties directly involved in the cause; or 11
(b) if the commissioner is satisfied mediation is desirable in the 12
public interest. 13
conference 14
Compulsory
232.(1) This section applies if the commission, when taking action under 15
section 230, considers that holding a conference is desirable to prevent or 16
settle the industrial dispute. 17
(2) The commission may, by attendance notice, require a person to attend 18
a conference at a stated time and place. 19
(3) A person may be required to attend even though not directly involved 20
in the dispute, if the commission considers the person's presence would be 21
conducive to the prevention or prompt settlement of the dispute. 22
(4) A person required to attend must-- 23
(a) attend the conference at the stated time and place; and 24
(b) continue to attend as directed by the commission. 25
Maximum penalty--40 penalty units. 26
(5) The person is entitled to be paid by the State an amount certified by 27
the commission as reasonable compensation for the person's expenses and 28
loss of time. 29
s 233 174 s 233
Industrial Relations
(6) At the commission's discretion, a conference may be held-- 1
(a) in public or private; or 2
(b) partly in public and partly in private. 3
commission's orders 4
Enforcing
233.(1) The commission may direct an order about an industrial dispute 5
to-- 6
(a) an organisation; or 7
(b) a person in a capacity as an officer or agent of an organisation; or 8
(c) any other person. 9
(2) If an order may be directed to an organisation or a person, the 10
commission may direct the order to the person only after considering 11
whether it would be more appropriate to direct the order to the organisation. 12
(3) An order must-- 13
(a) if the order is made against a person--state the person's name; 14
and 15
(b) state a time for complying with the order; and 16
(c) direct any of the following persons to file an affidavit with the 17
registrar within a stated time-- 18
(i) the organisation or person; 19
(ii) the party to the proceedings who sought the order; 20
(iii) any other party to the proceedings the commission considers 21
appropriate. 22
(4) An affidavit under subsection (3)(c) must state whether there has 23
been compliance with the order and, if the order has not been complied 24
with, the steps the person is aware of that have been taken to comply. 25
(5) The commission may extend a time stated under subsection (3)(b) 26
or (c). 27
(6) At the end of the time stated for filing an affidavit, or the time as 28
extended by the commission, the registrar must-- 29
s 234 175 s 234
Industrial Relations
(a) examine all affidavits filed; and 1
(b) if all affidavits required to be filed have not been filed in the stated 2
time--make all necessary further inquiries; 3
to decide whether there has been substantial compliance with the order. 4
(7) If the registrar is not satisfied that there has been substantial 5
compliance with the order, the registrar must issue a notice under the rules 6
calling on the organisation or person to whom the order was directed to 7
show cause to the full bench at a stated time why the organisation or person 8
should not be dealt with under section 234. 9
(8) In this section-- 10
"full bench" means the full bench constituted by the president and 2 or 11
more members. 12
on show cause 13
Remedies
234.(1) If an organisation issued with the notice does not show cause at 14
the stated time, the full bench may-- 15
(a) impose on the organisation a penalty of not more than 16
1 000 penalty units; or 17
(b) amend an award or certified agreement to which the organisation 18
is a party; or 19
(c) if the organisation is an employee organisation--suspend the date 20
of operation of a wage increase that would otherwise be payable 21
to members of the organisation or to a class of the members; or 22
(d) change the organisation's rules to exclude from eligibility for 23
membership persons belonging to a particular class or section of 24
the membership; or 25
(e) make the orders it considers appropriate-- 26
(i) restricting the use of the organisation's property; or 27
(ii) controlling the organisation's property to ensure the 28
restrictions are complied with; or 29
(f) suspend the organisation's registration for a stated period; or 30
(g) deregister the organisation; or 31
s 235 176 s 235
Industrial Relations
(h) make the other orders it considers appropriate-- 1
(i) to secure the organisation's compliance with the 2
commission's order; or 3
(ii) to punish the organisation for not complying with the 4
commission's order; or 5
(i) order the organisation to pay the costs of the show cause 6
proceedings. 7
(2) If a person issued with the notice does not show cause at the stated 8
time, the full bench may-- 9
(a) impose on the person a fine of not more than 40 penalty units; or 10
(b) make the other orders it considers appropriate-- 11
(i) to secure the person's compliance with the commission's 12
order; or 13
(ii) to punish the person for not complying with the 14
commission's order; or 15
(c) order the person to pay the costs of the show cause proceedings. 16
(3) All persons concerned must comply with an order or direction made 17
or given by the full bench. 18
(4) In this section-- 19
"organisation" includes a branch of the organisation. 20
"stated time" means at the time stated in the notice to show cause under 21
section 233(7), or at a time to which the proceedings are adjourned. 22
PART 3--BALLOTS 23
ballot on strike action 24
Secret
235.(1) This section applies if-- 25
(a) a strike happens; or 26
(b) the commission, or a person applying to the commission, 27
s 236 177 s 236
Industrial Relations
considers a strike is likely to happen. 1
(2) The commission may act under subsection (4)-- 2
(a) of its own initiative; or 3
(b) on application by an employer or employer organisation; or 4
(c) on application-- 5
(i) by or on behalf of 5% of the employees engaged in or on the 6
calling, enterprise, establishment or project concerned; or 7
(ii) by 250 employees; 8
whichever is less, but being, in any case, at least 4. 9
(3) The commission must act under subsection (4)-- 10
(a) on application by an employee organisation; or 11
(b) if directed by the Minister. 12
(4) To find out the number of employees or members who favour the 13
strike, the commission may direct the registrar to conduct a secret ballot66 14
of-- 15
(a) the employees engaged in or on the calling, enterprise, 16
establishment or project concerned; or 17
(b) the members of an employee organisation engaged in or on the 18
calling, enterprise, establishment or project concerned. 19
(5) The registrar must publish the result of the secret ballot in a 20
newspaper circulating in the locality concerned. 21
of ballot adverse to strike 22
Effect
236.(1) Subsection (2) applies if-- 23
(a) when a secret ballot was conducted under section 235(4)-- 24
(i) a strike exists; or 25
(ii) a strike appeared likely to happen, and a strike happens for 26
the same issue within 1 month after the ballot result is 27
66 See section 285 (Conducting a secret ballot)
s 237 178 s 237
Industrial Relations
published under section 235(5); and 1
(b) the ballot shows that a majority of employees or members who 2
voted in the ballot is not in favour of the strike. 3
(2) The registrar must advertise a date (the "end date"), not more than 4
7 days after the date of publication, on or before which the employees or 5
members who are on strike must discontinue the strike. 6
(3) The advertisement-- 7
(a) must be in a newspaper circulating in the locality concerned; and 8
(b) may be included in the advertisement published under 9
section 235(5). 10
(4) The employees or members must discontinue the strike on or before 11
the end date. 12
(5) An employee or member who does not is taken to have terminated, 13
from the end date, the employment in which the employee or member was 14
engaged when the strike commenced, unless the employee or member has a 15
reasonable excuse. 16
(6) Disagreement by a person with the result of the ballot is not a 17
reasonable excuse. 18
ART 4--INDUSTRIAL ACTION 19
P
against agent's unauthorised actions 20
Indemnity
237. An organisation or association of persons is not liable for anything 21
said or done by its agent, during or in connection with industrial action, if-- 22
(a) the agent acted without the knowledge of the governing body of 23
the organisation or association; and 24
(b) the governing body could not, by the exercise of reasonable 25
diligence, have prevented the action. 26
s 238 179 s 238
Industrial Relations
for strikes can not be compelled 1
Payments
238.(1) An employer may pay, or refuse to pay, an employee for a 2
period when the employee engages in a strike. 3
(2) An employee must not organise or engage in, or threaten to organise 4
or engage in, a strike against an employer with intent to coerce the employer 5
to make the payment. 6
(3) An employee organisation, or an officer, member or employee of the 7
organisation, must not organise or engage in, or threaten to organise or 8
engage in, a strike against an employer with intent to coerce the employer to 9
make the payment. 10
(4) For subsection (3), action is taken to have been done by an 11
organisation if it is done by-- 12
(a) the organisation's management committee; or 13
(b) an officer, employee or agent of the organisation acting in that 14
capacity; or 15
(c) a member or group of members of the organisation acting under 16
the organisation's rules; or 17
(d) a member of the organisation, who performs the function of 18
dealing with an employer on behalf of the member and other 19
members of the organisation, acting in that capacity. 20
(5) Subsection (4)(c) and (d) does not apply if any of the following 21
persons has taken reasonable steps to prevent the action-- 22
(a) the organisation's management committee; 23
(b) a person authorised by the committee; 24
(c) an officer of the organisation. 25
(6) A contravention of subsection (2) or (3) is not an offence.67 26
(7) In this section-- 27
"strike" does not include the failure to perform work in excess of that 28
required under a relevant industrial instrument. 29
67 See section 239 for the orders the commission may make for a contravention of
this section.
s 239 180 s 240
Industrial Relations
the commission may make 1
Orders
239.(1) An application may be made to the commission for orders under 2
this section for a contravention of section 238. 3
(2) The application may be made by-- 4
(a) the Minister; or 5
(b) a person who has an interest in the matter; or 6
(c) for a contravention of section 238(2) or (3)--the employer; or 7
(d) someone else prescribed under a regulation. 8
(3) A regulation prescribing persons for subsection (2)(d) may limit its 9
application to stated circumstances. 10
(4) The commission may, if it considers it appropriate in all the 11
circumstances, make 1 or more of the following orders-- 12
(a) an order imposing on a person who contravenes section 238 a 13
penalty of not more than 135 penalty units; 14
(b) an order requiring a person who contravenes section 238(2) or (3) 15
to pay an employer compensation of the amount the commission 16
considers appropriate; 17
(c) an injunctive order (including an interim injunction), and any 18
other order, the commission considers necessary to stop the 19
contravention or remedy its effects; 20
(d) another consequential order. 21
not to deal with claims for payments for strikes 22
Commission
240.(1) The commission can not deal with a claim for the making of a 23
payment to employees for a period when the employees engage in a strike 24
under section 238. 25
(2) Subsection (1) applies to a claim for a period before or after-- 26
(a) the making of the claim; or 27
(b) the commencement of this section. 28
s 241 181 s 243
Industrial Relations
to refuse to work if imminent health or safety risk 1
Right
241. Nothing in this Act prevents an employee from refusing to perform 2
work if-- 3
(a) the refusal is based on a reasonable concern by the employee 4
about an imminent risk to his or her health or safety; and 5
(b) the employee does not unreasonably contravene a direction of his 6
or her employer to perform other available work (whether at the 7
same or another workplace) that is safe and appropriate for the 8
employee to perform. 9
HAPTER 8--INDUSTRIAL TRIBUNALS AND 10
C
REGISTRY 11
ART 1--INDUSTRIAL COURT 12
P
Division 1--Industrial Court of Queensland 13
14
Continuance
242. The Industrial Court, as formerly established as a superior court of 15
record in Queensland, is continued in existence as the Industrial Court of 16
Queensland (the "court"). 17
2--President 18
Division
of the court 19
President
243.(1) The Governor in Council may appoint a person as president of 20
the court by commission. 21
(2) The person must be a person who-- 22
(a) has been-- 23
s 244 182 s 245
Industrial Relations
(i) a judge of the Supreme or District Court; or 1
(ii) is a lawyer of at least 5 years standing; and 2
(b) has skills and experience in industrial relations. 3
(3) The person can not be-- 4
(a) a member of the Executive Council or Legislative Assembly; or 5
(b) a director of a corporation engaged in a calling; or 6
(c) an auditor of a corporation engaged in a calling or of a business; 7
or 8
(d) a person who participates in any capacity in the management of-- 9
(i) a corporation engaged in a calling; or 10
(ii) a business. 11
(4) The appointment of the president is on a full-time basis. 12
a judge is appointed as president 13
When
244.(1) The appointment of, or service by, a judge of the Supreme or 14
District Court as president does not affect-- 15
(a) the judge's tenure of office as a judge; or 16
(b) the judge's rank, title, status, precedence, salary, annual or other 17
allowances or other rights or privileges as the holder of his or her 18
office as a judge. 19
(2) The judge's service as president is taken to be service as a judge for 20
all purposes. 21
president holds office 22
When
245.(1) The president holds office until-- 23
(a) the president turns 70; or 24
(b) the president resigns by signed notice given to the Governor; or 25
(c) the president becomes a member of the Executive Council or 26
Legislative Assembly; or 27
s 246 183 s 247
Industrial Relations
(d) the president becomes a person mentioned in section 243(3)(b) to 1
(d), other than with the Minister's written approval; or 2
(e) the president is removed from office under subsection (2). 3
(2) The Governor may remove the president from office on an address to 4
the Legislative Assembly for-- 5
(a) mental or physical incapacity; or 6
(b) misbehaviour. 7
(3) If the president stops holding office because of subsection (1)(a) 8
or (b) while hearing a matter, the Governor in Council may, without 9
reappointing the person as president, continue the person in office for the 10
time necessary to enable the hearing to be completed. 11
(4) The person continued in office may exercise the jurisdiction and 12
powers of the court necessary or convenient for the hearing to be completed. 13
president of the court 14
Acting
246.(1) This section applies if the president temporarily can not perform 15
the functions of office. 16
(2) The Governor in Council may appoint the vice president to act as 17
president by industrial gazette notice. 18
(3) A person who has acted as president may attend sittings of the court 19
for the purpose of giving a decision in, or otherwise completing, 20
proceedings that were heard by the person while acting as president. 21
(4) The person's decision is taken to be the president's decision in the 22
proceedings. 23
3--Jurisdiction and powers of the court 24
Division
of court 25
Constitution
247. The court is constituted by the president sitting alone. 26
s 248 184 s 249
Industrial Relations
jurisdiction 1
Court's
248.(1) The court may-- 2
(a) perform all functions and exercise all powers prescribed for the 3
court by this or another Act; and 4
(b) hear and decide cases stated to it by the commission; and 5
(c) hear and decide an offence against this Act, other than an offence 6
for which jurisdiction is expressly conferred on a magistrate; and 7
(d) hear and decide appeals from an industrial magistrate's decision 8
in proceedings for-- 9
(i) an offence against this Act; or 10
(ii) recovery of damages, or other amounts, under this Act; and 11
(e) exercise the jurisdiction and powers of the Supreme Court to 12
ensure, by prerogative order or other appropriate process-- 13
(i) the commission and magistrates exercise their jurisdictions 14
according to law; and 15
(ii) the commission and magistrates do not exceed their 16
jurisdictions. 17
(2) In proceedings, the court may-- 18
(a) make the decisions it considers appropriate, irrespective of 19
specific relief sought by a party; and 20
(b) give directions about the hearing of a matter. 21
(3) The court's jurisdiction is not limited, by implication, by a provision 22
of this or another Act. 23
interpretation 24
Court's
249. The court's interpretation of a provision of this Act, an industrial 25
instrument or permit binds-- 26
(a) the commission; and 27
(b) magistrates; and 28
s 250 185 s 252
Industrial Relations
(c) organisations and persons who are subject to this Act, or bound 1
by the industrial instrument or permit. 2
may refuse to proceed 3
Court
250.(1) This section applies if proceedings before the court relate to an 4
industrial instrument that exists or is sought in the proceedings. 5
(2) The court may refuse to hear and decide the proceedings if any of the 6
employees who are, or would be, bound by the instrument are-- 7
(a) involved in an industrial dispute; or 8
(b) contravening this Act or a decision. 9
(3) Subsection (2) applies whether or not the employees are employees 10
whose employment may be affected by the decision. 11
of court 12
Contempt
251.(1) The court has all the protection, powers, jurisdiction and authority 13
of the Supreme Court for a contempt of court. 14
(2) The court must comply with the Uniform Civil Procedure Rules 15
relating to contempt of court, with necessary changes. 16
(3) The registrar or another officer of the court may apply to the court for 17
an order that a person be committed to prison for contempt of court. 18
(4) The court's jurisdiction to punish a contempt of the court may be 19
exercised on the president's own initiative. 20
(5) The court has jurisdiction to punish an act or omission as a contempt 21
of the court, although a penalty is prescribed for the act or omission. 22
Division 4--President's annual report 23
annual report 24
President's
252.(1) As soon as practicable after the end of each financial year, the 25
president must prepare and give to the Minister a report for the year on-- 26
(a) the operation of this Act; and 27
s 253 186 s 253
Industrial Relations
(b) in particular, the working of the court, commission and registry. 1
(2) The report must also contain summaries of significant decisions and 2
interpretations about awards, certified agreements, industrial agreements, 3
QWAs and ancillary documents. 4
(3) The Minister must table a copy of the report in the Legislative 5
Assembly within 14 days after the Minister receives it. 6
5--President's advisory committee 7
Division
committee established 8
Advisory
253.(1) The president's advisory committee (the "advisory committee") 9
is established. 10
(2) The advisory committee consists of-- 11
(a) the president; and 12
(b) the commissioner administrator; and 13
(c) the chief executive or the chief executive's nominee; and 14
(d) 2 persons representing employee organisations, nominated by the 15
organisations; and 16
(e) 2 persons representing employer organisations, nominated by the 17
organisations; and 18
(f) 2 persons who have knowledge of, or experience in, industrial 19
relations; and 20
(g) 1 person representing the Anti-Discrimination Commission. 21
(3) The Minister must appoint the members under subsection (2)(d) 22
to (f). 23
(4) The Minister may appoint the members only after consulting with the 24
president. 25
s 254 187 s 256
Industrial Relations
of advisory committee 1
Functions
254. The president's advisory committee's functions are to discuss 2
matters relating to the accessibility, efficiency, effectiveness, flexibility, 3
operation, and responsiveness of the court and commission. 4
PART 2--INDUSTRIAL RELATIONS COMMISSION 5
1--Continuance and composition 6
Division
7
Continuance
255. The Queensland Industrial Relations Commission (the 8
"commission"), as formerly established as a court of record, is continued in 9
existence. 10
11
Composition
256.(1) The following persons are members of the commission 12
("members")-- 13
(a) the president; 14
(b) the vice president, commissioner administrator and at least 15
6 other industrial commissioners ("commissioners"). 16
(2) The full bench of the commission ("full bench") is constituted by-- 17
(a) for chapter 12, part 1668 or for the hearing of an appeal--the 18
president and 2 or more commissioners; or 19
(b) otherwise--3 or more members. 20
(3) The commission is constituted by a commissioner sitting alone. 21
(4) More than 1 full bench or commission may sit at the same time. 22
68 Chapter 12, part 16 (Deregistration)
s 257 188 s 259
Industrial Relations
(5) The commission's jurisdiction, or existence, is not affected by a 1
vacancy in any office of the commission. 2
2--Membership of the commission 3
Division
of the commission 4
President
257. The president of the court is also the president of the commission. 5
president of the commission 6
Vice
258.(1) The Governor in Council may appoint a person as vice president 7
of the commission-- 8
(a) if the person is not already a commissioner--by commission; or 9
(b) if the person is already a commissioner--by gazette notice. 10
(2) The person must be a person who-- 11
(a) is a lawyer of at least 5 years standing; 12
(b) has the experience, qualifications and standing mentioned in 13
section 259(2). 14
15
Commissioners
259.(1) The Governor in Council may appoint a person as a 16
commissioner by commission. 17
(2) The person must have-- 18
(a) a high level of experience in-- 19
(i) business or industry; or 20
(ii) an organisation or employer association or a State peak 21
council; or 22
(iii) a department of government; or 23
(iv) an agency, authority, commission, corporation, 24
instrumentality, office, or other entity, established under an 25
Act or under State authorisation for a public or State 26
s 260 189 s 260
Industrial Relations
purpose; or 1
(b) suitable experience, qualifications and standing in the community 2
to be appointed as a commissioner. 3
(3) The Governor in Council may appoint a commissioner as the 4
commissioner administrator by gazette notice. 5
(4) The appointment as commissioner administrator is to be for a term, 6
of at least 5 years, stated in the notice. 7
(5) The commissioner administrator continues to be a commissioner, and 8
is to sit as, and exercise the powers of, a commissioner. 9
(6) The commissioner administrator holds office as commissioner 10
administrator while the person holds office as a commissioner or until-- 11
(a) the end of the person's term of appointment; or 12
(b) the person is appointed as the president; or 13
(c) the person resigns as commissioner administrator by signed 14
notice given to the Governor. 15
(7) The commissioner administrator may resign office as commissioner 16
administrator without resigning office as a commissioner. 17
commissioner holds office 18
When
260.(1) A commissioner holds office until-- 19
(a) the commissioner is appointed as the president; or 20
(b) the commissioner turns 70; or 21
(c) the commissioner resigns by signed notice given to the Governor; 22
or 23
(d) the commissioner becomes a member of the Executive Council 24
or Legislative Assembly; or 25
(e) the commissioner becomes a person mentioned in section 262(b), 26
other than with the Minister's written approval; or 27
(f) the commissioner is removed from office under section 263. 28
(2) However, if a commissioner stops holding office because of 29
subsection (1)(b) or (c) while investigating or hearing a matter, the 30
s 261 190 s 263
Industrial Relations
Governor in Council may, without reappointing the person as a 1
commissioner, continue the person in office for the time necessary to enable 2
the investigation or hearing to be completed. 3
(3) The person continued in office may exercise the jurisdiction and 4
powers of the commission necessary or convenient for the investigation or 5
hearing to be completed. 6
vice president, commissioner administrator or other 7
Acting
commissioner 8
261.(1) This section applies if the vice president, commissioner 9
administrator or another commissioner temporarily can not perform the 10
functions of office. 11
(2) The Governor in Council may appoint a person to act as the vice 12
president, commissioner administrator or other commissioner by industrial 13
gazette notice. 14
on appointment 15
Restrictions
262. The following persons can not be appointed as commissioners-- 16
(a) a member of the Executive Council or Legislative Assembly; 17
(b) a person who-- 18
(i) acts as director of a corporation engaged in a calling; or 19
(ii) acts as auditor of a corporation engaged in a calling or of a 20
business; or 21
(iii) participates in any capacity in the management of a 22
corporation engaged in a calling; or 23
(iv) participates in any capacity in the management of a business. 24
of commissioners from office 25
Removal
263. The Governor may remove a commissioner from office, on an 26
address to the Legislative Assembly, for-- 27
s 264 191 s 265
Industrial Relations
(a) mental or physical incapacity; or 1
(b) misbehaviour. 2
3--The commission 3
Division
responsibilities for the commission and registry 4
Administrative
264.(1) In addition to performing the functions of a member, the 5
president is responsible for the administration of the commission and 6
registry, and the orderly and expeditious exercise of the commission's 7
jurisdiction and powers. 8
(2) The president has the power to do all things necessary or convenient 9
to be done to perform responsibilities under subsection (1). 10
(3) In addition to performing the functions of a member, the vice 11
president must assist the president to perform the president's functions. 12
(4) In addition to performing the functions of a member, the 13
commissioner administrator is responsible to the president for the 14
administration of the commission and registry, and the orderly and 15
expeditious exercise of the commission's jurisdiction and powers. 16
(5) The commissioner administrator has the power to do all things 17
necessary or convenient to be done to perform responsibilities under 18
subsection (4). 19
jurisdiction 20
Commission's
265.(1) The commission may hear and decide the following matters-- 21
(a) all questions of law or fact brought before it or that it considers 22
expedient to hear and decide for the regulation of a calling; 23
(b) all questions-- 24
(i) arising out of an industrial matter; or 25
(ii) involving deciding the rights and duties of a person in 26
relation to an industrial matter; or 27
(iii) it considers expedient to hear and decide about an industrial 28
matter; 29
s 265 192 s 265
Industrial Relations
(c) an industrial dispute, referred to the commission by a member 1
who has held a conference under this Act at which no agreement 2
has been reached; 3
(d) all appeals properly made to it under this or another Act; 4
(e) all matters committed to the commission by this or another Act. 5
(2) The commission may regulate a calling by an award-- 6
(a) on application by an organisation, an employer, or 20 employees 7
(who are not members of an employee organisation and not 8
covered by an award) in a calling; or 9
(b) on application by the Minister; or 10
(c) of its own initiative. 11
(3) The commission may hold an inquiry into or about an industrial 12
matter and to report the result of the inquiry, and make recommendations, to 13
the Minister-- 14
(a) on application by an interested person; or 15
(b) by direction of the Minister; or 16
(c) of its own initiative. 17
(4) The commission may consolidate into 1 award all awards binding or 18
affecting an employer or class of employer in a calling, or the members of 19
an organisation employed by the same employer or class of employer-- 20
(a) on application by an organisation or an employer; or 21
(b) by direction of the Minister. 22
(5) When exercising power under subsection (4), the commission may 23
make the amendments of the award it considers expedient to make to effect 24
the consolidation. 25
(6) No provision of this or another Act limits, by implication, the 26
commission's jurisdiction. 27
(7) In this section-- 28
"class" includes a section of a class. 29
s 266 193 s 269
Industrial Relations
to prevent discrimination in employment 1
Commission
266. In exercising a power, the commission must not allow 2
discrimination in employment. 3
jurisdiction is exclusive 4
Commission's
267. The original and appellate jurisdiction conferred on the commission 5
by this Act is exclusive of the jurisdiction of the Supreme Court or another 6
court or tribunal, unless otherwise prescribed under this Act. 7
may refuse to proceed 8
Commission
268.(1) This section applies if proceedings before the commission relate 9
to an industrial instrument that exists or is sought in the proceedings. 10
(2) The commission may refuse to hear and decide the proceedings if any 11
of the employees who are, or would be, bound by the instrument are-- 12
(a) involved in an industrial dispute; or 13
(b) contravening this Act or a decision; or 14
(3) Subsection (2) applies whether or not the employees are employees 15
whose employment may be affected by the decision of the proceedings. 16
or commissioner administrator to consider efficiencies that 17
President
m