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This is a Bill, not an Act. For current law, see the Acts databases.
Queensland
WORKPLACE RELATIONS
BILL 1996
Queensland
WORKPLACE RELATIONS BILL 1996
TABLE OF PROVISIONS
Section Page
CHAPTER 1--PRELIMINARY
1 Short title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
2 Commencement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
3 Principal object of this Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
4 Definitions--the dictionary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
5 References to making false or misleading statements . . . . . . . . . . . . . . . . . 28
6 References to engaging in conduct . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
7 Who is an employee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
8 Who is an employer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
9 What is an industrial matter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
CHAPTER 2--AGREEMENTS
PART 1--CERTIFIED AGREEMENTS
Division 1--Preliminary
10 Object of pt 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
11 Commission's functions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
12 Single business and employers taken to be 1 employer . . . . . . . . . . . . . . . . 33
13 Additional operation of part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
14 Nominal expiry date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
15 Valid majority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
16 Working day . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Division 2--Making agreements
17 What this division covers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
18 Nature of agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
19 Agreement with employee organisations . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
2
Workplace Relations
20 Agreement with employees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
21 Certificate as to requested representation . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
22 Greenfields agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
23 Time for applying for certification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Division 3--Certifying agreements
24 Certain employee organisations not to be heard . . . . . . . . . . . . . . . . . . . . . . 40
25 Certifying an agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
26 When commission to refuse to certify an agreement . . . . . . . . . . . . . . . . . . 42
27 Other options open to commission instead of refusing to certify an
agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
28 Procedures for preventing and settling disputes . . . . . . . . . . . . . . . . . . . . . . 44
Division 4--Effect of certified agreements
29 When a certified agreement is in operation . . . . . . . . . . . . . . . . . . . . . . . . . 45
30 Effect of a certified agreement in relation to awards and other
agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Division 5--Persons bound by certified agreements
31 Persons bound . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
32 Successor employers bound . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Division 6--Extending, amending or terminating certified
agreements
33 Extending the nominal expiry date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
34 Amending a certified agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
35 Amendment if discrimination between unionists and non-unionists . . . . . . 49
36 Other options open to commission instead of refusing to approve
amendment of an agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
37 Terminating a certified agreement on or before its nominal expiry date . . 50
38 Terminating a certified agreement after its nominal expiry date . . . . . . . . 51
39 Terminating an agreement in a way provided under agreement
after nominal expiry date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Division 7--Negotiations for certified agreements etc.
40 Initiation of bargaining period . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
41 Particulars to accompany notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
42 When bargaining period begins . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
43 Protected action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
3
Workplace Relations
44 Industrial action must not involve secondary boycott . . . . . . . . . . . . . . . . . . 55
45 Industrial action etc. must not be taken until after nominal expiry
date of certain agreements and awards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
46 Notice of action to be given . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
47 Negotiation must precede industrial action . . . . . . . . . . . . . . . . . . . . . . . . . . 58
48 Secret ballot for bargaining period . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
49 Industrial action must be properly authorised . . . . . . . . . . . . . . . . . . . . . . . . 60
50 What happens if application to certify agreement is not made
within 21 days . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
51 Immunity provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
52 Employer not to dismiss employee etc. for engaging in protected action . . 62
53 When bargaining period ends . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
54 Power of commission to suspend or terminate bargaining period . . . . . . . . 63
55 What happens if commission terminates a bargaining period
under s 54(3) or (7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
56 Powers of commission and full bench when s 55 applies . . . . . . . . . . . . . . . 67
57 Awards under s 55 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
58 Commission not to arbitrate during bargaining period . . . . . . . . . . . . . . . . . 69
59 Conciliation for agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
60 Employers not to discriminate between unionist and non-unionist . . . . . . . 69
Division 8--Prohibition of coercion in relation to agreements
61 Coercion of persons to make, amend or terminate certified
agreements etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
Division 9--Enforcement and remedies
62 Penalty provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
63 Penalties for contravening penalty provisions . . . . . . . . . . . . . . . . . . . . . . . . 71
64 Reinstatement and compensation if employer contravenes s 52 . . . . . . . . . 73
Division 10--General
65 Secret ballot on valid majority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
66 Complementary laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
PART 2--QUEENSLAND WORKPLACE AGREEMENTS
Division 1--Preliminary
67 Object of pt 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
68 Definitions for pt 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
4
Workplace Relations
69 Proposed QWAs and ancillary documents--interpretation . . . . . . . . . . . . . 76
70 Functions and powers of enterprise commissioner . . . . . . . . . . . . . . . . . . . . 77
71 Protocol regarding employment advocate's functions . . . . . . . . . . . . . . . . . 77
Division 2--General rules about QWAs and ancillary documents
72 QWAs and ancillary documents only have effect as provided by
this part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
73 Collective QWAs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
Division 3--Making, amending or terminating a QWA
74 Employer and employee may make a QWA . . . . . . . . . . . . . . . . . . . . . . . . . 78
75 Matters to be included in QWA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
76 Nominal expiry date of QWA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
77 Period of operation of QWA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
78 Bargaining agents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
79 Amending a QWA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
80 Terminating a QWA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
Division 4--Filing and approving QWAs and ancillary documents
81 Filing QWAs and ancillary documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
82 Filing requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
83 Employer's declaration must be accurate . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
Division 5--Approving QWAs and ancillary documents
84 Additional approval requirements for QWA and ancillary documents . . . . 84
85 Approving QWA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
86 Approving amendment agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
87 Approving other ancillary documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
88 Enterprise commissioner must issue approval or refusal notice . . . . . . . . . . 87
89 Undertakings taken to be included in QWAs . . . . . . . . . . . . . . . . . . . . . . . . 88
90 Enterprise commissioner to issue copies of approved QWAs and
ancillary documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
Division 6--Effect of a QWA
91 Effect of QWA on awards and agreements . . . . . . . . . . . . . . . . . . . . . . . . . . 88
92 QWA binds employer's successor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
93 Parties must not contravene QWA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
94 Conciliation for agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
5
Workplace Relations
95 Industrial action by party to QWA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
Division 7--Enforcement and remedies
96 Penalties for contravening this part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
97 Damages for contravention of QWA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
98 Compensation to new employee for shortfall in entitlements . . . . . . . . . . . 90
99 Injunctions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
Division 8--Limited immunity for industrial action
100 Meaning of expressions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
101 Limited immunity conferred . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
102 Immunity conditional on giving notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
103 Employer not to dismiss etc. an employee for taking QWA
industrial action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
Division 9--General
104 Hindering QWA negotiations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
105 Persons must not apply duress or make false statements in
connection with QWA etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
106 Employer must give copy of documents to employee . . . . . . . . . . . . . . . . . 94
107 Intervention not permitted . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95
108 Hearings to be in private . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95
109 Identity of QWA parties not to be disclosed . . . . . . . . . . . . . . . . . . . . . . . . . 95
110 Enterprise commissioner not to publish QWA decision or interpretation . . 96
111 Reports and advice about development in making QWAs . . . . . . . . . . . . . . 96
112 Interpretation of a QWA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
113 Evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
114 Signature for corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97
PART 3--NODISADVANTAGE TEST
115 Definitions for pt 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97
116 When does an agreement pass the no-disadvantage test . . . . . . . . . . . . . . . 99
117 Special case--employee eligible for supported wage system . . . . . . . . . . . 100
118 Special case--employee undertaking approved traineeship . . . . . . . . . . . . 100
119 Special case--employee undertaking approved apprenticeship . . . . . . . . . 101
120 Determination of designated awards for certified agreement . . . . . . . . . . . . 102
121 Determination of designated awards for QWA . . . . . . . . . . . . . . . . . . . . . . . 102
6
Workplace Relations
CHAPTER 3--AWARDS
PART 1--OBJECTS
122 Objects of ch 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103
PART 2--COMMISSION'S FUNCTIONS GENERALLY
123 Performance of commission's functions under this chapter . . . . . . . . . . . . . 103
124 No automatic flow-on of certain agreements . . . . . . . . . . . . . . . . . . . . . . . . . 104
PART 3--FORM AND APPLICATION
125 Form, effect and term of award . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105
126 Persons bound by award . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105
PART 4--COMMISSION'S POWERS
127 Making, amending and repealing awards . . . . . . . . . . . . . . . . . . . . . . . . . . . 106
128 Allowable award matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107
129 Limitation on commission's powers for awards . . . . . . . . . . . . . . . . . . . . . . . 109
130 Exceptional matters orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110
131 Allowable award matters to be dealt with by full bench . . . . . . . . . . . . . . . 111
132 General rulings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111
PART 5--OTHER REQUIREMENTS
133 Inclusion of enterprise flexibility provisions in awards . . . . . . . . . . . . . . . . . 112
134 Some requirements about structure and content etc. of awards and
orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113
135 Dispute resolution procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114
PART 6--EXEMPTIONS
136 Exemptions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115
PART 7--GENERAL
137 Enforceability of awards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116
138 Effect of appeals on awards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116
139 Inconsistency between awards and contracts . . . . . . . . . . . . . . . . . . . . . . . . 116
CHAPTER 4--GENERAL EMPLOYMENT CONDITIONS
PART 1--MINIMUM WAGES
140 Object of pt 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117
141 Meaning of expressions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117
142 Orders setting minimum wages . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117
7
Workplace Relations
143 Orders only on application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117
144 When commission may make order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117
145 Matters to be considered when setting minimum wages . . . . . . . . . . . . . . . 119
146 Part does not limit other rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119
147 Orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119
148 Inconsistent industrial instruments or orders . . . . . . . . . . . . . . . . . . . . . . . . . 120
PART 2--EQUAL REMUNERATION FOR WORK OF EQUAL
VALUE
149 Object of part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120
150 Meaning of expressions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120
151 Orders requiring equal remuneration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120
152 Orders only on application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121
153 When commission must and may only make order . . . . . . . . . . . . . . . . . . . 121
154 Immediate or progressive introduction of equal remuneration . . . . . . . . . . . 121
155 Employer not to reduce remuneration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121
156 Part does not limit other rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122
157 Applications under this part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122
PART 3--PARENTAL LEAVE
Division 1--Preliminary
158 Object of pt 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123
159 Basic principles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123
160 Definitions for pt 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 124
Division 2--Maternity leave
161 Entitlement to maternity leave . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126
162 Conditions of entitlement to maternity leave . . . . . . . . . . . . . . . . . . . . . . . . 126
163 Period of maternity leave . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 128
164 Entitlement reduced by other maternity leave available to employee . . . . 129
165 Taking annual or long service leave instead of, or in conjunction
with, maternity leave . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 130
166 Extending maternity leave . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131
167 Shortening maternity leave . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131
168 Effect on maternity leave of failure to complete 1 year of
continuous service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 132
8
Workplace Relations
169 Effect on maternity leave if pregnancy terminates or child dies . . . . . . . . . 132
170 Effect on maternity leave of ceasing to be the primary care-giver . . . . . . . 133
171 Return to work after maternity leave . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133
172 Transfer to safe duties because of pregnancy . . . . . . . . . . . . . . . . . . . . . . . . 134
Division 3--Paternity leave
173 Entitlement to paternity leave . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 134
174 Conditions of entitlement to short paternity leave . . . . . . . . . . . . . . . . . . . . 134
175 Conditions of entitlement to long paternity leave . . . . . . . . . . . . . . . . . . . . . 136
176 Period of long paternity leave . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137
177 Entitlement reduced by other paternity leave available to employee . . . . . 138
178 Taking annual or long service leave instead of, or in conjunction
with, paternity leave . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 139
179 Extending long paternity leave . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 139
180 Shortening paternity leave . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 140
181 Effect on long paternity leave of failure to complete 1 year of
continuous service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 140
182 Effect on long paternity leave if pregnancy terminates or child dies . . . . . 140
183 Effect on paternity leave of ceasing to be the primary care-giver . . . . . . . . 141
184 Return to work after paternity leave . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141
Division 4--General
185 Employee's duty if excessive leave approved or if maternity
leave and paternity leave overlap . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142
186 Employer to warn replacement employee that employment is
only temporary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 143
187 Parental leave and continuity of service . . . . . . . . . . . . . . . . . . . . . . . . . . . . 144
188 Effect of part on other laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 144
189 Regulations for adoption leave . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 144
PART 4--LONG SERVICE LEAVE
190 Definitions for pt 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 144
191 Source of long service leave entitlement . . . . . . . . . . . . . . . . . . . . . . . . . . . 145
192 Approval of long service leave conditions . . . . . . . . . . . . . . . . . . . . . . . . . . . 146
193 Entitlement to long service leave . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 146
194 Long service leave in sugar industry and meat works . . . . . . . . . . . . . . . . . 147
195 Long service leave for other seasonal employees . . . . . . . . . . . . . . . . . . . . . 150
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196 Long service leave for employees not governed by awards etc. . . . . . . . . . 150
197 Continuity of service generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 151
198 Determining length of continuous service . . . . . . . . . . . . . . . . . . . . . . . . . . . 153
199 Service in Defence Force . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 154
200 Service of casual employees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 155
201 Taking long service leave . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 156
202 Taking long service leave--casual employees . . . . . . . . . . . . . . . . . . . . . . . 157
203 Payment for long service leave . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 157
204 Payment for long service leave--casual employees . . . . . . . . . . . . . . . . . . 158
205 Payment instead of long service leave . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 159
206 Inquiry on re-employment of employee during long service leave . . . . . . . 160
207 Recognition of certain exemptions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 161
208 Person may be "employer" and "employee" . . . . . . . . . . . . . . . . . . . . . . . . 161
209 Service in apprenticeship or traineeship . . . . . . . . . . . . . . . . . . . . . . . . . . . . 161
PART 5--OTHER LEAVE
210 Annual leave accrued during apprenticeship or traineeship . . . . . . . . . . . . . 162
211 Sick leave accrued during apprenticeship or traineeship . . . . . . . . . . . . . . . 162
212 Continuity of employment for sick leave . . . . . . . . . . . . . . . . . . . . . . . . . . . . 162
CHAPTER 5--DISMISSALS
PART 1--OBJECTS AND INTERPRETATION
213 Objects of ch 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 164
214 Meaning of expressions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 164
215 Complementary laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 165
216 Exclusion of employees from part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 165
PART 2--UNLAWFUL DISMISSALS
217 When dismissal is unlawful . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 166
218 Application to remedy unlawful dismissal . . . . . . . . . . . . . . . . . . . . . . . . . . . 167
219 Conciliation before application heard . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 167
220 What to consider in deciding if dismissal is harsh, unjust or
unreasonable . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 168
221 Onus of proof . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 169
222 Remedies and sanctions for unlawful dismissal . . . . . . . . . . . . . . . . . . . . . . 169
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Workplace Relations
223 Further orders if employer fails to reinstate . . . . . . . . . . . . . . . . . . . . . . . . . . 171
224 Effect of order on leave . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 171
225 Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 171
PART 3--REQUIREMENTS FOR DISMISSAL
226 Notice of dismissal or compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 172
227 Orders giving effect to articles 12 and 13 of Convention . . . . . . . . . . . . . . . 174
228 Orders if employer does not consult about proposed dismissals . . . . . . . . . 175
229 Employer must notify Commonwealth employment service of
proposed dismissals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 176
PART 4--OTHER DISMISSALS
230 Employee dismissed in December, re-employed in January . . . . . . . . . . . . 177
231 Permissible stand-down of employee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 178
PART 5--PROTECTION OF INJURED EMPLOYEES
232 Definitions for pt 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 178
233 Wages to be paid for the day employee injured . . . . . . . . . . . . . . . . . . . . . . 179
234 Reinstatement of injured employees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 179
235 Dismissal an offence in certain cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 180
236 Preservation of employee's rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 180
PART 6--GENERAL
237 Chapter does not limit other rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 180
238 Inconsistent instruments and orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 181
CHAPTER 6--INDUSTRIAL DISPUTES
PART 1--NOTICE OF INDUSTRIAL DISPUTE
239 Notice of industrial dispute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 181
PART 2--ACTION FOR SETTLING INDUSTRIAL DISPUTES
240 Action on industrial dispute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 182
241 Recommendation by consent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 184
242 Mediation by commissioner or magistrate . . . . . . . . . . . . . . . . . . . . . . . . . . . 184
243 Compulsory conference . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 185
PART 3--BALLOTS
244 Secret ballot on strike action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 185
245 Effect of ballot adverse to strike . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 186
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PART 4--INDUSTRIAL ACTION
246 Nonparticipation in industrial action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 187
247 Indemnity against agent's unauthorised actions . . . . . . . . . . . . . . . . . . . . . . 188
248 Payments for strikes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 188
249 Orders the commission may make . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 190
250 Commission not to deal with claims for payments for strikes . . . . . . . . . . . 190
251 Right to refuse to work if imminent health or safety risk . . . . . . . . . . . . . . . 191
CHAPTER 7--INDUSTRIAL TRIBUNALS AND REGISTRAR
PART 1--INDUSTRIAL COURT
Division 1--Industrial Court continued
252 Continuance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 191
Division 2--President
253 Appointment of president . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 191
254 When president holds office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 192
255 Acting president . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 192
Division 3--Jurisdiction and powers of the court
256 Constitution of court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 193
257 President's jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 193
258 Court's jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 193
259 Court's jurisdiction is exclusive . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 194
260 Binding nature of court's interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 195
261 Court may refuse to proceed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 195
262 Decision of full industrial court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 195
Division 4--President's annual report
263 President's annual report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 196
Division 5--President's advisory council
264 Establishment of advisory council . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 196
265 Term of office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 197
266 Remuneration of appointed members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 197
267 Functions of advisory council . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 197
268 Meetings of advisory council . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 197
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PART 2--INDUSTRIAL RELATIONS COMMISSION
Division 1--Continuance, composition and constitution
269 Continuance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 198
270 Composition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 198
271 Constitution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 198
Division 2--Members of the commission
272 Appointment of members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 198
273 When member holds office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 199
274 Acting chief commissioner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 200
275 Acting members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 200
276 Restrictions etc. on appointment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 200
277 Removal of members from office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 201
278 Administrative responsibilities of chief commissioner . . . . . . . . . . . . . . . . . 201
Division 3--The commission
279 Commission's jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 201
280 Commission to take account of Anti-Discrimination Act . . . . . . . . . . . . . . . 203
281 Commission's jurisdiction is exclusive . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 203
282 Commission may refuse to proceed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 203
283 Chief commissioner to consider efficiencies that may be
achieved by allocating matters to dual commissioners . . . . . . . . . . . . . . . . 204
284 Reallocation of commission's work . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 204
285 Commission may continue to hear reallocated work without
re-hearing evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 204
286 Decision of full bench . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 205
Division 4--Commission's functions
287 Commission's functions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 205
288 Performance of commission's functions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 206
Division 5--Powers of commission
289 General powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 206
290 Power to amend or void contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 207
291 Power to grant injunctions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 208
292 Power to direct or order in relation to industrial action . . . . . . . . . . . . . . . . 209
293 Orders about representation rights of employee organisations . . . . . . . . . . . 210
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294 Procedures for reopening . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 212
295 Reference to full bench . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 213
296 Case stated to court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 213
297 Remission to magistrate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 214
298 Power to enter and inspect . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 214
299 Interpretation of awards and certified agreements . . . . . . . . . . . . . . . . . . . . 215
300 Statement of policy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 216
301 Conducting a secret ballot . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 216
302 Other powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 218
Division 6--Member's conditions of appointment
303 Remuneration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 218
304 Pension benefits--Judges (Pensions and Long Leave) Act . . . . . . . . . . . . . 218
305 Pension benefits--Superannuation Acts . . . . . . . . . . . . . . . . . . . . . . . . . . . . 219
306 Leave of absence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 221
PART 3--INDUSTRIAL MAGISTRATES
Division 1--Industrial Magistrates Court
307 Industrial Magistrates Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 221
Division 2--Industrial magistrates
308 Office of Industrial Magistrate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 221
Division 3--Constitution and jurisdiction of Industrial Magistrates
Court
309 Constitution of Industrial Magistrates Court . . . . . . . . . . . . . . . . . . . . . . . . . 222
310 Magistrate's jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 222
311 Magistrates' jurisdiction is exclusive . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 223
Division 4--Powers of industrial magistrates
312 Magistrate's powers on remission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 224
PART 4--INDUSTRIAL REGISTRAR
Division 1--Industrial registrar's office continued
313 Continuance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 224
Division 2--Role of industrial registrar's office
314 Role of office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 224
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Division 3--Industrial registrar and staff
315 Industrial registrar and staff . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 225
316 Functions and powers of registrar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 225
317 Functions of assistant registrar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 225
318 Delegation by registrar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 226
PART 5--ARRANGEMENTS WITH OTHER AUTHORITIES
Division 1--Commissioner may also be member of Australian
commission
319 Commissioner may hold other appointment . . . . . . . . . . . . . . . . . . . . . . . . . 226
Division 2--Dual commissioners
320 Appointment of Commonwealth official as commissioner . . . . . . . . . . . . . . 226
321 Role of dual commissioner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 227
Division 3--References to Commonwealth official
322 Reference of matter to Commonwealth official . . . . . . . . . . . . . . . . . . . . . . 228
Division 4--Conferences and joint sessions with industrial
authorities
323 Conferences with industrial authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 228
324 Joint sessions with industrial authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . 229
325 Similar matters before full bench and industrial authority . . . . . . . . . . . . . . 229
326 Commissioner's powers in joint session . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 230
327 Chief commissioner may decide matter not to be dealt with in
joint session . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 230
328 Restriction on chief commissioner's authority . . . . . . . . . . . . . . . . . . . . . . . 230
Division 5--Other functions etc. and arrangements
329 Functions and powers vested in commission by other jurisdictions . . . . . . 230
330 Arrangements with Commonwealth public service . . . . . . . . . . . . . . . . . . . . 231
PART 6--PROCEEDINGS OF COURT, COMMISSION,
MAGISTRATES AND REGISTRAR
Division 1--Definitions
331 Definitions for pt 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 231
Division 2--Starting proceedings and service of process
332 Starting proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 232
333 Service of process . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 232
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Division 3--Conduct of proceedings
334 Representation of parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 233
335 Basis of procedures and decisions of the commission and magistrates . . . 235
336 Competence and compellability of witnesses . . . . . . . . . . . . . . . . . . . . . . . . 236
337 Intervention by State or Minister . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 236
338 Adjournment by registrar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 236
339 State employee to give information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 237
Division 4--Powers
340 Exercise of commission's powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 237
341 Interlocutory proceedings and chamber matters . . . . . . . . . . . . . . . . . . . . . . 237
342 Power to order inquiry or taking of evidence . . . . . . . . . . . . . . . . . . . . . . . . . 238
343 Power to administer oath . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 239
344 Powers incidental to exercise of jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . 239
345 Power to obtain data and expert evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . 240
Division 5--Decisions and enforcement
346 Decisions generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 241
347 Reserved decisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 241
348 Commission decisions to be in plain English . . . . . . . . . . . . . . . . . . . . . . . . 242
349 Extent of decisions and their execution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 242
350 Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 243
351 Enforcing commission's orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 243
352 Remedies on show cause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 245
353 Proceeding of commission or magistrate not to be questioned . . . . . . . . . . 246
354 Filing magistrate's decision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 246
355 Recovery of amounts under orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 247
Division 6--Protections and immunities
356 Protection and immunities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 247
Division 7--Rules of court and practice
357 Rules of court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 248
358 Directions about practice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 249
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PART 7--APPEALS
Division 1--Appeals to Court of Appeal
359 Appeal from court to Court of Appeal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 250
Division 2--Appeals to Industrial Court
360 Appeal from commission, magistrate or registrar to court . . . . . . . . . . . . . . 250
361 Court may vary penalty on appeal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 251
Division 3--Appeals to Industrial Relations Commission
362 Appeals from commissioner to full bench with leave . . . . . . . . . . . . . . . . . . 251
363 Appeal from magistrate to commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 252
364 Appeal from registrar to full bench . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 253
365 President may stay decisions when leave sought . . . . . . . . . . . . . . . . . . . . . 254
366 Decisions on appeal that are final . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 254
367 Appeal to commission against stand-downs . . . . . . . . . . . . . . . . . . . . . . . . . 254
Division 4--Appeals to both Industrial Court and Industrial
Relations Commission
368 Appeals from commissioner to both court and full bench . . . . . . . . . . . . . . 255
Division 5--General
369 Nature of appeal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 256
370 Time limited for appeal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 256
CHAPTER 8--ADMINISTRATION
PART 1--EMPLOYMENT ADVOCATE
371 Employment Advocate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 256
372 Functions and powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 257
373 Delegation by employment advocate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 258
374 Annual report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 259
375 Complementary laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 259
PART 2--INSPECTORS
Division 1--Appointment
376 Appointment of inspectors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 259
377 Limitation of inspector's powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 260
378 Inspector's appointment conditions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 260
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Division 2--Identity cards
379 Identity card . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 261
380 Production or display of identity card . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 261
Division 3--General powers
381 Entry to places . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 262
382 General powers after entering places . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 262
383 Power to require documents to be produced . . . . . . . . . . . . . . . . . . . . . . . . . 263
384 Power to require information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 264
385 Power to require name and address . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 264
Division 4--Powers to claim and deal with unpaid amounts
386 Paying employee's wages etc. to inspector . . . . . . . . . . . . . . . . . . . . . . . . . . 265
387 Inspector's obligation for amounts paid on demand . . . . . . . . . . . . . . . . . . . 266
Division 5--General
388 Obstructing inspectors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 267
389 Impersonating inspectors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 267
390 Validity of inspector's conduct despite administrative contravention . . . . . 268
CHAPTER 9--RECORDS AND WAGES
PART 1--EMPLOYERS RECORDS
Division 1--Definitions
391 Definitions for pt 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 268
Division 2--Authorised industrial officers
392 Authorising industrial officers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 269
393 Revocation and suspending industrial officer's authorisation . . . . . . . . . . . 270
Division 3--Employers to keep certain records
394 Time and wages record--industrial instrument employees . . . . . . . . . . . . . 270
395 Time and wages record--non-industrial instrument employees . . . . . . . . . . 272
396 Employee register . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 273
397 Records to be kept in English . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 274
398 Notation of wages details . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 274
Division 4--Power to inspect certain records
399 Inspection of time and wages record--inspector . . . . . . . . . . . . . . . . . . . . . . 275
400 Right of entry--authorised industrial officer . . . . . . . . . . . . . . . . . . . . . . . . . 276
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401 Inspection of time and wages record--authorised industrial officer . . . . . . 277
402 Inspection of employee register and index--registrar . . . . . . . . . . . . . . . . . . 279
403 Inspection of time and wages book--employees . . . . . . . . . . . . . . . . . . . . . 279
PART 2--WAGES AND OCCUPATIONAL SUPERANNUATION
Division 1--Interpretation
404 Definitions for pt 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 280
405 References to service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 281
Division 2--Protection for wages
406 Wages are first charge on amounts payable to employer . . . . . . . . . . . . . . . 281
407 Assignment of amount payable ineffectual against claims for wages . . . . . 282
408 Amounts paid or payable to employer to be applied in payment of
wages . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 282
409 Attachment notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 283
410 Effect of attachment notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 283
411 Orders for payment by prime contractor or clerk of the court . . . . . . . . . . . 284
412 Employees to be paid according to when attachment notices are served . . 285
413 Employee may sue prime contractor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 286
414 Cessation of attachment not to prejudice prime contractor . . . . . . . . . . . . . 287
415 Discharge by employee for payment received . . . . . . . . . . . . . . . . . . . . . . . 287
416 Remedy of subcontractor's employees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 287
417 Prime contractor's right to reimbursement . . . . . . . . . . . . . . . . . . . . . . . . . . . 288
418 Magistrate may hear claim for wages ex parte . . . . . . . . . . . . . . . . . . . . . . . 288
Division 3--Paying and recovering wages
419 Wages to be paid without deduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 288
420 Paying wages . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 289
421 Contract not to stipulate mode of spending wages . . . . . . . . . . . . . . . . . . . . 290
422 Payment of unpaid wages etc. if employee's whereabouts unknown . . . . . 291
423 Recovery of wages etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 292
424 Enforcement of magistrate's order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 292
425 Recovery from employee of amounts overpaid . . . . . . . . . . . . . . . . . . . . . . . 293
426 Deduction in default of notice of termination . . . . . . . . . . . . . . . . . . . . . . . . 293
427 Minor may sue . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 294
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Division 4--Wages in rural and mining industries
428 Wages recoverable against mortgagee if mortgagor defaults . . . . . . . . . . . 294
429 Distress warrant levied on property of mortgagor or mortgagee . . . . . . . . . . 295
430 Application of ss 428 and 429 to mines . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 296
431 Priority in payment of wages earned in mine . . . . . . . . . . . . . . . . . . . . . . . . 297
Division 5--Occupational superannuation
432 Agreement about superannuation fund . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 298
433 Contributing occupational superannuation . . . . . . . . . . . . . . . . . . . . . . . . . . . 298
434 Power to order superannuation contribution to particular fund . . . . . . . . . . . 299
435 Magistrate's power for unpaid superannuation contribution . . . . . . . . . . . . . 300
CHAPTER 10--OFFENCES
436 Contempt of court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 301
437 Disobeying penalty orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 302
438 Improper conduct towards member of the commission, magistrate
or registrar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 302
439 Disturbances near tribunals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 303
440 Contempt by witness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 303
441 False or misleading statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 304
442 False, misleading or incomplete documents . . . . . . . . . . . . . . . . . . . . . . . . . 304
443 Obstructing officers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 305
444 Avoiding Act's obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 306
445 Non-payment of wages . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 306
446 Accepting reduced wages . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 307
447 Publishing statement about employment on reduced wages . . . . . . . . . . . . 307
448 Offence to offer or accept premiums . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 309
449 Contraventions of awards, certified agreements or permits . . . . . . . . . . . . . 309
450 Injunction restraining contraventions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 310
451 Persons considered parties to offences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 311
452 Executive officers must ensure corporation complies with ss 396,
433 and 445 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 311
453 Attempt to commit offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 312
CHAPTER 11--LEGAL PROCEEDINGS
454 General application of jurisdictional provisions . . . . . . . . . . . . . . . . . . . . . . 312
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455 Evidentiary provisions affecting proceeding under industrial Act . . . . . . . . 313
456 Confidential material tendered in evidence . . . . . . . . . . . . . . . . . . . . . . . . . 313
457 Evidentiary value at large of official records . . . . . . . . . . . . . . . . . . . . . . . . 315
458 Proof of certain facts by statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 316
459 Evidentiary value of certificate of trustee of superannuation fund . . . . . . . 316
460 Offence proceedings generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 317
461 Organisations may start proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 318
462 Recovering amounts from organisations . . . . . . . . . . . . . . . . . . . . . . . . . . . . 318
CHAPTER 12--EMPLOYEES IN EMPLOYMENT OF STATE
463 Application of Act to State . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 319
464 Conflict between industrial instruments etc. and statutory determination . 319
465 Protection of public property and officers . . . . . . . . . . . . . . . . . . . . . . . . . . . 320
466 Ambit of reference to State . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 320
467 Representation of public sector units . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 321
468 Industrial cause affecting diverse employees . . . . . . . . . . . . . . . . . . . . . . . . 321
CHAPTER 13--GENERAL
469 Employees working in and outside State . . . . . . . . . . . . . . . . . . . . . . . . . . . . 322
470 Student's work permit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 322
471 Aged or infirm persons permits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 323
472 Right of entry provisions void . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 324
473 Preference provisions void . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 324
474 Copy of award and certified agreement to be displayed . . . . . . . . . . . . . . . 324
475 Incorporation of amendments in reprint of award or certified agreement . . 325
476 Obsolete award or certified agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 325
477 Certificate of employment on termination . . . . . . . . . . . . . . . . . . . . . . . . . . . 325
478 False pretences relating to employment . . . . . . . . . . . . . . . . . . . . . . . . . . . . 325
479 Protection from liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 327
480 Payments to financially distressed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 327
481 Notices and applications to be written . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 328
482 Inaccurate descriptions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 328
483 Confidentiality of information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 328
484 Application of Act generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 329
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485 Regulation-making power . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 329
CHAPTER 14--INDUSTRIAL RELATIONS ADVISORY
COUNCIL
486 Establishment of council . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 330
487 Term of office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 331
488 Deputies of members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 331
489 Remuneration of appointed members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 331
490 Functions of council . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 331
491 Conduct of council meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 332
CHAPTER 15--SAVINGS, REPEALS AND OTHER
AMENDMENTS
492 Savings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 333
493 Regulation and rules to continue . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 334
494 Repeals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 334
495 Amended Acts--sch 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 335
CHAPTER 16--TRANSITIONALS
PART 1--LIMITED CONTINUATION OF CERTAIN
CONDITIONS
496 Preservation of certain general conditions in existing instruments . . . . . . . 335
PART 2--EXISTING AWARDS
497 Definitions for pt 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 335
498 Exercise of commission's powers under this part . . . . . . . . . . . . . . . . . . . . . 336
499 Amendment of awards during the interim period . . . . . . . . . . . . . . . . . . . . . 336
500 Parts of awards stop having effect at the end of the interim period . . . . . . 338
501 Amendment of awards after the end of the interim period . . . . . . . . . . . . . . 338
502 Matters to be dealt with by full bench . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 340
PART 3--EXISTING INDUSTRIAL AGREEMENTS
503 Existing industrial agreement continues . . . . . . . . . . . . . . . . . . . . . . . . . . . . 340
504 Industrial agreement displaced by QWA . . . . . . . . . . . . . . . . . . . . . . . . . . . . 341
PART 4--EXISTING CERTIFIED AGREEMENTS
505 New termination provisions for existing certified agreements . . . . . . . . . . . 341
506 EFAs that prevail over certified agreements . . . . . . . . . . . . . . . . . . . . . . . . . 342
507 Certified agreements that prevail over EFAs . . . . . . . . . . . . . . . . . . . . . . . . 342
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508 Section 55(4) awards and exceptional matters orders prevail over
pre and post commencement certified agreements . . . . . . . . . . . . . . . . . . . . 343
PART 5--EXISTING EFAS
509 Existing EFA continues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 343
510 EFA displaced by QWA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 343
511 EFA displaced by certain awards or orders . . . . . . . . . . . . . . . . . . . . . . . . . . 343
PART 6--UNFAIR DISMISSALS
512 Dismissals before commencement of this section . . . . . . . . . . . . . . . . . . . . 344
PART 7--REPRESENTATION RIGHTS OF EMPLOYEE
ORGANISATIONS
513 Applications under the repealed Act, s 45 . . . . . . . . . . . . . . . . . . . . . . . . . . . 344
PART 8--REFERENCES AND APPOINTMENTS
514 References to Industrial Relations Act 1990 . . . . . . . . . . . . . . . . . . . . . . . . . 344
515 Appointments continue . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 344
SCHEDULE 1 . . . . . . . . . . . . . . . . . . . . . . . . 345
INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND
CULTURAL RIGHTS
PART II
PART III
SCHEDULE 2 . . . . . . . . . . . . . . . . . . . . . . . . 355
FAMILY RESPONSIBILITIES CONVENTION
SCHEDULE 3 . . . . . . . . . . . . . . . . . . . . . . . . 364
TERMINATION OF EMPLOYMENT CONVENTION
PART I--METHODS OF IMPLEMENTATION, SCOPE AND
DEFINITIONS
PART II--STANDARDS OF GENERAL APPLICATION
Division A--Justification for termination
Division B--Procedure prior to or at the time of termination
Division C--Procedure of appeal against termination
Division D--Period of notice
Division E--Severance allowance and other income protection
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PART III--SUPPLEMENTARY PROVISIONS CONCERNING
TERMINATIONS OF EMPLOYMENT FOR ECONOMIC,
TECHNOLOGICAL, STRUCTURAL OR SIMILAR REASONS
Division A--Consultation of workers' representatives
Division B--Notification to the competent authority
PART IV--FINAL PROVISIONS
SCHEDULE 4 . . . . . . . . . . . . . . . . . . . . . . . . 377
AMENDED ACTS
ACTS INTERPRETATION ACT 1954 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 377
ANZAC DAY ACT 1995 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 377
PUBLIC SERVICE ACT 1996 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 377
TRADING (ALLOWABLE HOURS) ACT 1990 . . . . . . . . . . . . . . . . . . . . . 378
VOCATIONAL EDUCATION, TRAINING AND EMPLOYMENT
ACT 1991 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 379
WORKPLACE HEALTH AND SAFETY ACT 1995 . . . . . . . . . . . . . . . . . . 386
SCHEDULE 5 . . . . . . . . . . . . . . . . . . . . . . . . 388
DICTIONARY
1996
A BILL
FOR
An Act to provide for workplace relations in Queensland, and for
other purposes
s1 26 s3
Workplace Relations
The Parliament of Queensland enacts-- 1
CHAPTER 1--PRELIMINARY 2
title 3
Short
1. This Act may be cited as the Workplace Relations Act 1996. 4
5
Commencement
2.(1) This Act commences on a day to be fixed by proclamation. 6
(2) However, the amendment of the Anzac Day Act 1995 is taken to have 7
commenced on 3 March 1995. 8
object of this Act 9
Principal
3. The principal object of this Act is to provide a framework for 10
cooperative workplace relations that supports economic prosperity and 11
welfare by-- 12
(a) encouraging, through higher productivity and a flexible and fair 13
labour market, the pursuit of high employment, improved living 14
standards, low inflation, and national and international 15
competitiveness; and 16
(b) ensuring the primary responsibility for determining matters 17
affecting the relationship between employers and employees rests 18
with the employer and employees at the workplace or enterprise 19
level; and 20
(c) enabling employers and employees to choose the most 21
appropriate form of agreement for their particular circumstances, 22
whether or not that form is provided for by this Act; and 23
(d) providing the means-- 24
(i) for wages and employment conditions to be determined as 25
far as possible by the agreement of employers and 26
s3 27 s3
Workplace Relations
employees at the workplace or enterprise level; and 1
(ii) to ensure the maintenance of an effective safety net of fair 2
and enforceable minimum wages and employment 3
conditions; and 4
(e) providing for rights and responsibilities for employers and 5
employees, and their organisations, that-- 6
(i) supports fair and effective agreement-making; and 7
(ii) ensures they abide by awards and agreements applying to 8
them; and 9
(f) enabling the commission-- 10
(i) to establish an award safety net based on simplified awards 11
to increase flexibility at the workplace or enterprise level; and 12
(ii) to assist in the making of collective and individual 13
agreements that are relevant to the needs of individual 14
workplaces and enterprises; and 15
(iii) to prevent and settle industrial disputes as far as possible by 16
conciliation and, if appropriate and within specified limits, by 17
arbitration; and 18
(g) helping employees balance their work and family responsibilities 19
effectively through the development of mutually beneficial work 20
practices with employers; and 21
(h) respecting and valuing the diversity of the work force by helping 22
to prevent and eliminate discrimination; and 23
(i) assisting in giving effect to Australia's international obligations in 24
relation to labour standards. 25
s4 28 s7
Workplace Relations
dictionary 1
Definitions--the
4. The dictionary in schedule 5 defines particular words used in this Act.1 2
to making false or misleading statements 3
References
5. A reference to a person making a statement knowing that it is false or 4
misleading in a material particular includes a reference to the person making 5
the statement being reckless about whether the statement is false or 6
misleading in a material particular. 7
to engaging in conduct 8
References
6. A reference to engaging in conduct includes a reference to being, 9
directly or indirectly, a party to or concerned in the conduct. 10
is an employee 11
Who
7.(1) An "employee" is a person employed in a calling on wages or 12
piecework rates. 13
(2) The following persons are also employees-- 14
(a) a person whose usual occupation is that of an employee in a 15
calling; 16
(b) a person employed in a calling, even though-- 17
(i) the person is working under a contract for labour only, or 18
substantially for labour only; or 19
(ii) the person is a lessee of tools or other implements of 20
production, or of a vehicle used to deliver goods; or 21
1 In some Acts, definitions are contained in a dictionary that appears as the last
schedule and forms part of the Act--Acts Interpretation Act 1954, section 14(4).
Words defined elsewhere in the Act are generally signposted by entries in the
dictionary. However, if a section has a definition applying only to the section, or
a part of the section, it is generally not signposted by an entry in the dictionary
and is generally set out in the last subsection of the section.
Signpost definitions in the dictionary alert the reader to the terms defined in the
Act and tell the reader where the definitions can be found.
s8 29 s8
Workplace Relations
(iii) the person owns, wholly or partly, a vehicle used to transport 1
goods or passengers; 2
if that is the only reason for holding the person not to be an 3
employee; 4
(c) 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; 6
(d) for a proceeding for payment or recovery of amounts--a former 7
employee; 8
(e) an apprentice or trainee. 9
(3) A person who is undertaking an industry placement within the 10
meaning of the Vocational Education and Training (Industry Placement) 11
Act 1992 is not an employee. 12
is an employer 13
Who
8.(1) An "employer" is-- 14
(a) a person employing, or who usually employs, 1 or more 15
employees, for the person or someone else; or 16
(b) for employees employed in a department of government--the 17
chief executive of that department. 18
(2) The following persons are also employers-- 19
(a) a person carrying on a calling in which employees are usually 20
employed, even though for the time being employees are not 21
employed in it; 22
(b) a person who is managing director, manager, secretary or 23
member of the managing body (however called) of a corporation, 24
partnership, firm or association of persons; 25
(c) if 4 or more persons are, or claim to be, partners working in 26
association in a calling or business--the partnership firm 27
constituted, or claimed to be constituted, by the persons; 28
(d) for a proceeding for payment or recovery of amounts--a former 29
employer. 30
s9 30 s9
Workplace Relations
is an industrial matter 1
What
9.(1) An "industrial matter" is a matter that affects or relates to-- 2
(a) work done or to be done; or 3
(b) the privileges, rights or functions of-- 4
(i) employers or employees; or 5
(ii) persons who have been, or propose to be, or who may 6
become, employers or employees; or 7
(c) a matter (whether or not an industrial matter as defined in this 8
section) that the court or commission considers has been, is, or 9
may be a cause or contributory cause of an industrial action or 10
industrial dispute. 11
(2) However, a matter is not an industrial matter if it is the subject of a 12
proceeding for an indictable offence. 13
(3) Without limiting subsection (1) or affecting subsection (2), a matter is 14
an industrial matter if it relates to-- 15
(a) wages, allowances or remuneration of persons employed, or to be 16
employed, during ordinary hours, on overtime, on special work 17
or on public holidays; or 18
(b) whether piecework will be allowed; or 19
(c) whether employees are to be given particular leave on full pay; or 20
(d) whether and on what conditions employees may board and lodge 21
with their employers; or 22
(e) whether monetary allowances will be paid by employers to 23
employees for standing back or waiting time caused-- 24
(i) by the conditions of the employer's calling; or 25
(ii) by the intermittency of industrial operations; or 26
(iii) otherwise; or 27
(f) the length of notice to be given by an employer or employee to the 28
other before terminating employment, and wages to be paid or 29
deducted instead of notice; or 30
(g) occupational superannuation; or 31
s9 31 s9
Workplace Relations
(h) the hours of work, the time to be worked to entitle employees to a 1
particular wage, allowance, remuneration or price, or what time 2
will be taken to be overtime; or 3
(i) claims to restrict work before or after particular hours; or 4
(j) the age, qualification or status of employees, or the mode and 5
conditions of employment or non-employment, including 6
whether a person should be disqualified for employment; or 7
(k) claims to have protective clothing or appliances, hot or cold water, 8
or sanitary or bathing accommodation provided for the use of 9
employees; or 10
(l) fixing standards of normal temperatures or atmospheric purity in 11
workplaces, above or below ground; or 12
(m) providing for shorter hours, higher wages, or other conditions for 13
persons employed under abnormal conditions or in abnormal 14
workplaces, and determining what are abnormal conditions or 15
workplaces; or 16
(n) employment of young employees or of a person or class of 17
person, or the disqualification of a person for employment 18
because of age or impairment; or 19
(o) the number or proportion of aged, impaired or infirm persons or 20
other employees that may be employed by an employer, or the 21
lowest prices or rates payable to them; or 22
(p) a claim to dismiss or to refuse to employ a particular person or 23
class of person, or whether a particular person or class of person, 24
ought to be continued or reinstated in the employment of a 25
particular employer, considering the public interest, despite 26
common law rights of employers or employees; or 27
(q) the right to dismiss, or to refuse to employ or reinstate a particular 28
person, or class of person, in a particular calling; or 29
(r) custom or usage about employment conditions, either generally or 30
in a particular calling or locality; or 31
(s) the interpretation or enforcement of an industrial instrument or a 32
permit, unless this Act otherwise prescribes; or 33
(t) the subject matter of an industrial dispute, and a matter that has 34
s 10 32 s 10
Workplace Relations
caused or, the court or commission considers is likely to cause, 1
disagreement or friction between employers and employees; or 2
(u) what is fair and just (considering the interests of the persons 3
immediately concerned and the community) according to the 4
standard of the average good employer and the average competent 5
and honest employee in all matters relating to the relations of 6
employers and employees, whether or not the relationship of 7
employer and employee exists or existed-- 8
(i) at or before the making of a relevant application to the court 9
or commission; or 10
(ii) at the making or enforcement of a decision of the court or 11
commission; or 12
(v) the regulation of relations between employer and employee, or 13
between employees, and to that end the imposition of conditions 14
on-- 15
(i) the conduct of a calling; and 16
(ii) the provision of benefits to persons engaged in a calling; or 17
(w) a demarcation dispute. 18
CHAPTER 2--AGREEMENTS 19
ART 1--CERTIFIED AGREEMENTS 20
P
Division 1--Preliminary 21
of pt 1 22
Object
10. The object of this part is to facilitate the making, certifying by the 23
commission, and operation, of certain agreements (particularly at the level 24
of a single business or part of a single business). 25
s 11 33 s 12
Workplace Relations
functions 1
Commission's
11.(1) The commission must, as far as practicable, perform its functions 2
under this part in a way that furthers the objects of this Act and, in 3
particular, the object of this part. 4
(2) Section 335(4) 2 does not apply to the performance of the 5
commission's functions under this part. 6
business and employers taken to be 1 employer 7
Single
12.(1) In this part, a "single business" is-- 8
(a) a business, project or undertaking that is carried on by an 9
employer; or 10
(b) the activities carried on by-- 11
(i) the State; or 12
(ii) an entity established for a public purpose under a law of the 13
State or Commonwealth; or 14
(iii) another entity in which the State has a controlling interest. 15
(2) In this part-- 16
(a) if 2 or more employers carry on a business, project or 17
undertaking as a joint venture or common enterprise, the 18
employers are taken to be 1 employer; and 19
(b) if 2 or more corporations that are related to each other for the 20
purposes of the Corporations Law each carry on a single 21
business-- 22
(i) the corporations may be treated as 1 employer; and 23
(ii) the single businesses may be treated as 1 single business. 24
(3) In this part, a part of a single business includes, for example-- 25
(a) a geographically distinct part of the single business; and 26
2 Section 335 (Basis of procedures and decisions of the commission and
magistrates)
s 13 34 s 13
Workplace Relations
(b) a distinct operational or organisational unit within the single 1
business. 2
operation of part 3
Additional
13.(1) In addition to its operation apart from this section to a single 4
business, or part of a single business, of an employer, this part applies, 5
subject to this section, in the same way to any of the following, or any 6
combination of the following-- 7
(a) 1 or more single businesses carried on by 1 or more employers; 8
(b) 1 or more parts of single businesses carried on by 1 or more 9
employers. 10
(2) If an application for certification of an agreement by the commission 11
can only be made under this part because of subsection (1), the agreement is 12
a "multiple-business agreement". 13
(3) Only a full bench may certify a multiple-business agreement under 14
division 3. 15
(4) A full bench, under division 3, must not certify a multiple-business 16
agreement unless satisfied it is in the public interest to certify the agreement, 17
having regard to-- 18
(a) whether the matters dealt with by the agreement could be more 19
appropriately dealt with by an agreement, other than a 20
multiple-business agreement, under this part; and 21
(b) any other matter that the full bench considers relevant. 22
(5) Despite section 30,3 a multiple-business agreement has no effect as 23
far as it is inconsistent with another agreement certified under division 34 24
that is not a multiple-business agreement. 25
3 Section 30 (Effect of a certified agreement in relation to awards and other
agreements)
4 Division 3 (Certifying agreements)
s 14 35 s 15
Workplace Relations
(6) Division 7 (other than sections 59 and 60)5 does not apply to a 1
proposed multiple-business agreement. 2
expiry date 3
Nominal
14. In this part, the "nominal expiry date" of a certified agreement is the 4
date specified in the agreement as its nominal expiry date, or that date as 5
extended or further extended under section 33.6 6
majority 7
Valid
15. For this part, a valid majority of the persons employed at a particular 8
time whose employment is or will be subject to an agreement-- 9
(a) make or genuinely make the agreement; or 10
(b) approve or genuinely approve-- 11
(i) the agreement; or 12
(ii) the extension of the nominal expiry date of the agreement; or 13
(iii) the amendment or termination of the agreement; 14
if-- 15
(c) the employer gives all of the persons employed a reasonable 16
opportunity to decide whether they want to make the agreement, 17
or give the approval; and 18
(d) either-- 19
(i) if the decision is made by a vote--a majority of the persons 20
who cast a valid vote; or 21
(ii) otherwise--a majority of the persons; 22
decide, or genuinely decide, that they want to make the agreement, 23
or give the approval. 24
5 Division 7 (Negotiations for certified agreements etc.), sections 59 (Conciliation
for agreements) and 60 (Employers not to discriminate between unionist and
non-unionist)
6 Section 33 (Extending the nominal expiry date)
s 16 36 s 19
Workplace Relations
day 1
Working
16. In this part, a "working day", for a single business or a part of a 2
single business, is a day on which employees normally perform work in the 3
business or part. 4
2--Making agreements 5
Division
this division covers 6
What
17. This division sets out requirements that must be satisfied for 7
applications to be made to the commission to certify certain agreements 8
between employers and-- 9
(a) employee organisations; or 10
(b) employees. 11
of agreement 12
Nature
18.(1) For an application to be made to the commission under this 13
division, there must be a written agreement about matters pertaining to the 14
relationship between-- 15
(a) an employer; and 16
(b) all persons-- 17
(i) who, while the agreement operates, are employed in a single 18
business, or a part of a single business, of the employer; and 19
(ii) whose employment is subject to the agreement. 20
(2) The agreement must be made in accordance with section 19, 20 21
or 22.7 22
with employee organisations 23
Agreement
19.(1) The employer may make the agreement with 1 or more employee 24
organisations if, when the agreement is made, each organisation-- 25
7 Section 20 (Agreement with employees) or 22 (Greenfields agreement)
s 20 37 s 20
Workplace Relations
(a) has at least 1 member employed in the single business, or a part 1
of a single business, whose employment will be subject to the 2
agreement; and 3
(b) is entitled to represent the industrial interests of the member in 4
relation to work that will be subject to the agreement. 5
(2) The agreement must be approved by a valid majority of the persons 6
employed at the time whose employment will be subject to the agreement. 7
(3) The employer must take reasonable steps to ensure-- 8
(a) at least 14 days before approval is given, all the persons either 9
have, or have ready access to, the proposed written agreement; 10
and 11
(b) before approval is given, the terms of the agreement are explained 12
to all the persons. 13
(4) An agreement must not be made under this section if it may be made 14
under section 22.8 15
with employees 16
Agreement
20.(1) The employer may make the agreement with a valid majority of 17
the relevant employees employed when the agreement is made. 18
(2) The employer must take reasonable steps to ensure every relevant 19
employee has at least 14 days' notice of intention to make the agreement. 20
(3) The agreement must not be made before the 14 days have passed. 21
(4) At or before the time when the notice is given, the employer must 22
take reasonable steps to ensure every relevant employee either has, or has 23
ready access to, the proposed written agreement. 24
(5) The notice must also state that if-- 25
(a) a relevant employee is a member of an employee organisation; 26
and 27
(b) the organisation is entitled to represent the employee's industrial 28
interests in relation to work that will be subject to the agreement; 29
8 Section 22 (Greenfields agreement)
s 21 38 s 21
Workplace Relations
the employee may ask the organisation to represent the employee in meeting 1
and conferring with the employer about the agreement. 2
(6) If an organisation is asked to represent a relevant employee, the 3
employer must give the organisation a reasonable opportunity to meet and 4
confer with the employer about the agreement before it is made. 5
(7) The requirement in subsection (6) stops applying to the employer if 6
after the request is made-- 7
(a) the relevant employee withdraws the request; or 8
(b) the conditions in subsection (5)(a) and (b) cease to be met. 9
(8) Before the agreement is made, the employer must take reasonable 10
steps to ensure the terms of the agreement are explained to all the relevant 11
employees employed at the time. 12
(9) If a proposed agreement is amended for any reason after the notice is 13
given, the steps in subsections (2), (3), (4), (6) and (8) must again be taken 14
in relation to the proposed agreement as amended. 15
(10) However, subsection (9) does not apply if the proposed agreement 16
is to be amended only-- 17
(a) for a formal or clerical reason; or 18
(b) in another way that does not adversely affect a relevant 19
employee's interests. 20
(11) In this section-- 21
"relevant employee" means an employee whose employment will be 22
subject to the agreement. 23
as to requested representation 24
Certificate
21.(1) If the registrar is satisfied-- 25
(a) for an application by an employee organisation--an employee has 26
made a request under section 20(5) for the organisation to 27
represent the employee in meeting and conferring with an 28
employer about a proposed agreement; or 29
(b) for an application by an employer--after making a request under 30
section 20(5), the requirement in section 20(6) for the employer to 31
s 22 39 s 23
Workplace Relations
give a reasonable opportunity to the organisation to meet and 1
confer about the proposed agreement, has, because of 2
section 20(7), ceased to apply to the employer; 3
the registrar may issue a certificate to that effect. 4
(2) The certificate-- 5
(a) must not identify any of the employees concerned; but 6
(b) must identify the organisation, the employer and the proposed 7
agreement. 8
(3) The certificate is, for all purposes of this Act, evidence that-- 9
(a) an employee made the request; or 10
(b) the requirement ceased to apply. 11
agreement 12
Greenfields
22.(1) This section applies if-- 13
(a) the single business is a new business that the employer proposes 14
to establish, or is establishing, when the agreement is to be made; 15
and 16
(b) the agreement is to be made before the employment of any of the 17
persons-- 18
(i) who will be necessary for the normal operation of the 19
business, or a part of a single business; and 20
(ii) whose employment will be subject to the agreement. 21
(2) The employer may make the agreement with 1 or more employee 22
organisations meeting the requirements of subsection (3). 23
(3) When the agreement is made, each organisation must be entitled to 24
represent the industrial interests of 1 or more of the persons, whose 25
employment is likely to be subject to the agreement, in relation to work that 26
will be subject to the agreement. 27
for applying for certification 28
Time
23. An application for the commission to certify the agreement must be 29
s 24 40 s 25
Workplace Relations
made within 21 days after-- 1
(a) for an agreement made under section 199--the day on which the 2
agreement is approved; or 3
(b) for an agreement made under section 2010 or 22--the day on 4
which the agreement is made. 5
3--Certifying agreements 6
Division
employee organisations not to be heard 7
Certain
24. In an application for certification of an agreement, the commission-- 8
(a) must, on application, give leave to hear from an employee 9
organisation that was requested to represent a person under 10
section 2011 in relation to the agreement, if-- 11
(i) the request has not been withdrawn; or 12
(ii) the conditions in section 20(5)(a) and (b) continue to be met; 13
and 14
(b) except as mentioned in paragraph (a), must not hear from an 15
employee organisation, other than an organisation proposed to be 16
bound by the agreement. 17
an agreement 18
Certifying
25.(1) If an application is made to the commission to certify an 19
agreement, the commission must certify the agreement if, and must not 20
certify the agreement unless, satisfied the requirements of this section are 21
met. 22
(2) The agreement must pass the no-disadvantage test. 23
(3) If-- 24
9 Section 19 (Agreement with employee organisations)
10 Section 20 (Agreement with employees)
11 Section 20 (Agreement with employees)
s 25 41 s 25
Workplace Relations
(a) the only reason why the commission must not certify an 1
agreement is that the agreement does not pass the no-disadvantage 2
test; and 3
(b) the commission is satisfied that certifying the agreement is not 4
contrary to the public interest; 5
the agreement is taken to pass the no-disadvantage test. 6
7
Example of subsection (3)(b)--
8
The making of the agreement is part of a reasonable strategy to deal with a
9
short-term crisis in, and to assist in the revival of, the single business or part.
(4) A valid majority of the relevant employees employed at the time must 10
have-- 11
(a) for an agreement made under section 1912--genuinely approved 12
the agreement; or 13
(b) for an agreement made under section 20 13--genuinely made the 14
agreement. 15
(5) The explanation of the terms of the agreement to persons mentioned 16
in section 19(3)(b) or 20(8) must have been done in a way that was 17
appropriate, having regard to the persons' particular circumstances and 18
needs. 19
20
Examples of persons with particular circumstances and needs--
21
1. Women
22
2. Persons from a non-English-speaking background
23
3. Young persons
(6) The agreement must include procedures for preventing and settling 24
disputes, about matters arising under the agreement, between-- 25
(a) the employer; and 26
(b) the relevant employees. 27
(7) If the agreement was made under section 20, the employer must not 28
have coerced, or attempted to coerce, an employee-- 29
12 Section 19 (Agreement with employee organisations)
13 Section 20 (Agreement with employees)
s 26 42 s 26
Workplace Relations
(a) not to make a request mentioned in section 20(5); or 1
(b) to withdraw the request. 2
(8) The agreement must specify a date, not more than 3 years after the 3
date on which the agreement will come into operation, as the nominal expiry 4
date of the agreement. 5
(9) The agreement must also contain, or be accompanied by, the 6
information prescribed under a regulation. 7
(10) In this section-- 8
"relevant employee" means an employee whose employment will be 9
subject to the agreement. 10
commission to refuse to certify an agreement 11
When
26.(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 chapter 4, parts 1 and 2 and chapter 5;14 or 14
(b) an order by the commission under the provisions; or 15
(c) an injunction granted by the commission under the provisions; or 16
(d) the Industrial Organisations Act 1996, part 14.15 17
(2) The commission must refuse to certify an agreement if satisfied-- 18
(a) the employer has, in connection with negotiating the agreement, 19
contravened-- 20
(i) section 60; or 21
(ii) the Industrial Organisations Act 1996, part 14; or 22
(b) the employer has caused an entity to engage, in connection with 23
negotiations for an agreement, in conduct that, had the employer 24
engaged in the conduct, would be a contravention by the employer 25
of-- 26
14 Chapter 4, parts 1 (Minimum wages) and 2 (Equal remuneration for work of
equal value)
Chapter 5 (Dismissals)
15 Industrial Organisations Act 1996, part 14 (Freedom of association)
s 26 43 s 26
Workplace Relations
(i) section 60;16 or 1
(ii) the Industrial Organisations Act 1996, part 14; or 2
(c) an entity has, for the employer-- 3
(i) engaged in conduct mentioned in paragraph (b); or 4
(ii) caused another entity to engage in the conduct. 5
(3) Subsection (2) does not apply if the commission is satisfied the 6
contravention or conduct, and its effects, have been fully remedied. 7
(4) The commission must refuse to certify an agreement if it considers a 8
provision of the agreement is a discriminatory provision. 9
(5) The commission must refuse to certify an agreement if-- 10
(a) the agreement applies only to a part of a single business that is 11
neither of the following-- 12
(i) a geographically distinct part of the single business; 13
(ii) a distinct operational or organisational unit within the single 14
business; and 15
(b) the commission considers the agreement defines the part in a way 16
that results in the employment of employees not being subject to 17
the agreement if it would be reasonable for the employment to be, 18
having regard to-- 19
(i) the nature of the work performed by the employees whose 20
employment is not subject to the agreement; and 21
(ii) the organisational and operational relationships between the 22
part and the rest of the single business; and 23
(c) the commission considers it unfair that the employment of those 24
employees is not subject to the agreement. 25
(6) This section applies despite section 25. 26
16 Section 60 (Employers not to discriminate between unionist and non-unionist)
s 27 44 s 28
Workplace Relations
options open to commission instead of refusing to certify an 1
Other
agreement 2
27.(1) If, under section 2517 or 26, the commission has grounds to refuse 3
to certify an agreement-- 4
(a) the commission may accept an undertaking from 1 or more of the 5
persons who made the agreement in relation to the operation of 6
the agreement and, if satisfied the undertaking meets the 7
commission's concerns, certify the agreement; and 8
(b) before refusing to certify the agreement, the commission must 9
give the persons who made the agreement an opportunity to take 10
action that may be necessary to make the agreement certifiable. 11
(2) If an undertaking is not complied with, the commission, after giving 12
the persons who made the agreement an opportunity to be heard, may-- 13
(a) order the 1 or more persons who gave the undertaking to comply 14
with it; or 15
(b) terminate the agreement. 16
(3) If-- 17
(a) after doing the things required or allowed by subsection (1), the 18
commission is still required to refuse to certify the agreement; and 19
(b) it is so required only because it is not satisfied as mentioned in 20
section 26(1); 21
the commission may conciliate the industrial matter concerned with a view 22
to assisting the persons concerned to make the agreement certifiable. 23
for preventing and settling disputes 24
Procedures
28. Procedures in a certified agreement for preventing and settling 25
disputes between the employer and employees whose employment will be 26
subject to the agreement may, if the commission approves, authorise the 27
commission to settle disputes over the application of the agreement. 28
17 Section 25 (Certifying an agreement)
s 29 45 s 30
Workplace Relations
Division 4--Effect of certified agreements 1
a certified agreement is in operation 2
When
29.(1) A certified agreement starts operating when it is certified. 3
(2) The agreement stops operating if-- 4
(a) its nominal expiry date has passed; and 5
(b) it is replaced by another certified agreement. 6
(3) The agreement stops operating if it is terminated under section 27, 36, 7
37, 38 or 39.18 8
of a certified agreement in relation to awards and other 9
Effect
agreements 10
30.(1) While a certified agreement operates-- 11
(a) it prevails over an award or industrial agreement, to the extent of 12
any inconsistency with the award or agreement; and 13
(b) it has no effect to the extent of any inconsistency with another 14
agreement certified before it, whose nominal expiry date has not 15
passed. 16
(2) An exceptional matters order prevails, to the extent of any 17
inconsistency, over a certified agreement that was certified before the order 18
was made. 19
18 Section 27 (Other options open to commission instead of refusing to certify an
agreement), 36 (Other options open to commission instead of refusing to approve
amendment of an agreement), 37 (Terminating a certified agreement on or
before its nominal expiry date), 38 (Terminating a certified agreement after its
nominal expiry date) or 39 (Terminating an agreement in a way provided under
agreement after nominal expiry date)
s 31 46 s 32
Workplace Relations
Division 5--Persons bound by certified agreements 1
ersons bound 2
P
31.(1) A certified agreement binds-- 3
(a) the employer; and 4
(b) all persons whose employment is, while the agreement operates, 5
subject to the agreement; and 6
(c) if the agreement is made with 1 or more employee organisations 7
under section 19 or 2219--the 1 or more organisations. 8
(2) The commission must determine that a certified agreement binds an 9
employee organisation if-- 10
(a) a valid majority of employees made the agreement with the 11
employer under section 20;20 and 12
(b) before the agreement is certified, the organisation gives the 13
commission and employer notice that it wants to be bound by the 14
agreement; and 15
(c) the organisation satisfies the commission that it has at least 16
1 member-- 17
(i) whose employment will be subject to the agreement; and 18
(ii) whose industrial interests the organisation is entitled to 19
represent for work that will be subject to the agreement; and 20
(iii) who asked the organisation to give the notice. 21
employers bound 22
Successor
32.(1) This section applies if-- 23
(a) an employer is bound by a certified agreement; and 24
(b) at a later time a new employer becomes the successor (whether or 25
19 Section 19 (Agreement with employee organisations) or 22 (Greenfields
agreement)
20 Section 20 (Agreement with employees)
s 33 47 s 33
Workplace Relations
not immediate) of the whole or a part of the business concerned. 1
(2) From the later time-- 2
(a) the new employer is bound by the certified agreement, to the 3
extent it relates to the whole or part of the business; and 4
(b) the previous employer stops being bound by the certified 5
agreement, to the extent it relates to the whole or part of the 6
business; and 7
(c) a reference in this part to the employer includes a reference to the 8
new employer, and ceases to refer to the previous employer, to 9
the extent the context relates to the whole or part of the business. 10
(3) In this section-- 11
"successor" includes assignee and transmittee. 12
Division 6--Extending, amending or terminating certified agreements 13
the nominal expiry date 14
Extending
33.(1) On or before the nominal expiry date of a certified agreement, the 15
following persons may extend the nominal expiry date by application to the 16
commission-- 17
(a) if 1 or more organisations are bound by the agreement--the 18
employer and the 1 or more organisations; 19
(b) otherwise--the employer. 20
(2) The extended date can not be more than 3 years after the date on 21
which the agreement came into operation. 22
(3) The extension has no effect unless the commission approves it. 23
(4) The commission must approve the extension if, and must not 24
approve the extension unless, satisfied a valid majority of the employees 25
whose employment is subject to the agreement at the time genuinely 26
approve the extension. 27
(5) The extension takes effect when the commission's approval takes 28
effect. 29
s 34 48 s 34
Workplace Relations
(6) This section does not apply to an agreement-- 1
(a) to which section 2221 applied; or 2
(b) to which section 25(3)22 applied, in circumstances covered by the 3
example to that subsection. 4
a certified agreement 5
Amending
34.(1) The following persons may amend the agreement by application to 6
the commission-- 7
(a) if 1 or more organisations are bound by the agreement--the 8
employer and the 1 or more organisations; 9
(b) otherwise--the employer. 10
(2) The amendment has no effect unless the commission approves it. 11
(3) The commission must approve the amendment if, and must not 12
approve the amendment unless, satisfied-- 13
(a) a valid majority of the employees whose employment is subject 14
to the agreement at the time genuinely approve the amendment; 15
and 16
(b) the commission would be required to certify the agreement as 17
amended if it were a new agreement whose certification was 18
applied for under this part. 19
(4) In applying subsection (3)(b)-- 20
(a) a requirement about a majority of persons making or approving 21
the agreement is taken to be satisfied; and 22
(b) section 2723 is to be disregarded. 23
(5) The amendment takes effect when the commission's approval takes 24
effect. 25
(6) The commission may, on application by a person bound by a certified 26
21 Section 22 (Greenfields agreement)
22 Section 25 (Certifying an agreement)
23 Section 27 (Other options open to commission instead of refusing to certify an
agreement)
s 35 49 s 35
Workplace Relations
agreement, amend a certified agreement-- 1
(a) to remove ambiguity or uncertainty; or 2
(b) to include, omit or amend a term (however specified) that allows 3
an employer to stand-down an employee. 4
(7) A certified agreement can not be amended except under-- 5
(a) this section (including as it applies under section 35); or 6
(b) section 33; or 7
(c) section 36.24 8
if discrimination between unionists and non-unionists 9
Amendment
35.(1) If-- 10
(a) 1 or more employees whose employment is not subject to the 11
agreement ask the employer to-- 12
(i) amend the agreement so that their employment is subject to 13
the agreement; and 14
(ii) seek the approval of the commission for the amendment 15
under section 34; and 16
(b) their employment would be subject to the agreement if-- 17
(i) they were members of an employee organisation or of a 18
particular employee organisation; or 19
(ii) they were not members of an employee organisation or of a 20
particular employee organisation; and 21
(c) the amendment would not cause the agreement to become a 22
multiple-business agreement; 23
the employer must comply with the request. 24
(2) If, in accordance with the request, the employer seeks the 25
commission's approval to the amendment under section 34(3), the 26
24 Section 36 (Other options open to commission instead of refusing to approve
amendment of an agreement)
s 36 50 s 37
Workplace Relations
commission must disregard section 34(3)(a) in deciding whether to approve 1
the amendment. 2
options open to commission instead of refusing to approve 3
Other
amendment of an agreement 4
36.(1) If the commission has grounds to refuse to approve an 5
amendment of an agreement under section 34,25 it-- 6
(a) may accept an undertaking from 1 or more of the persons who 7
amended the agreement in relation to the operation of the 8
agreement as amended and, if satisfied the undertaking meets the 9
commission's concerns, approve the amendment; and 10
(b) before refusing to approve the amendment, must give the persons 11
who amended the agreement an opportunity to take any action that 12
may be necessary to allow the amendment to be approved. 13
(2) If an undertaking is not complied with, the commission, after giving 14
the persons who amended the agreement an opportunity to be heard, may-- 15
(a) order the 1 or more persons who gave the undertaking to comply 16
with it; or 17
(b) amend the agreement to undo the effect of the approved 18
amendment; or 19
(c) terminate the agreement. 20
a certified agreement on or before its nominal expiry date 21
Terminating
37.(1) On or before the nominal expiry date of a certified agreement the 22
following persons may terminate the agreement by notice-- 23
(a) if 1 or more organisations are bound by the agreement--the 24
employer and the 1 or more organisations; 25
(b) otherwise--the employer. 26
(2) The termination has no effect unless the commission approves it. 27
(3) The commission must approve the termination if, and must not 28
25 Section 34 (Amending a certified agreement)
s 38 51 s 39
Workplace Relations
approve the termination unless, satisfied a valid majority of the employees 1
whose employment is subject to the agreement at the time genuinely 2
approve its termination. 3
(4) The termination takes effect when the commission's approval takes 4
effect. 5
a certified agreement after its nominal expiry date 6
Terminating
38.(1) After the nominal expiry date of a certified agreement-- 7
(a) the employer; or 8
(b) a majority of the employees whose employment is subject to the 9
agreement; or 10
(c) an employee organisation that-- 11
(i) is bound by the agreement; and 12
(ii) has at least 1 member whose employment is subject to the 13
agreement; 14
may give notice to all of the employees, or other employees, whose 15
employment is subject to the agreement and persons, or other persons, who 16
are bound by the agreement, and to the commission, stating that the 17
agreement terminates with effect from a specified day. 18
(2) The specified day must be at least 28 days after-- 19
(a) the day on which the notice is given; or 20
(b) if it is given to different persons on different days--the day on 21
which it is last given. 22
(3) The agreement terminates on the specified day. 23
an agreement in a way provided under agreement after 24
Terminating
nominal expiry date 25
39.(1) If-- 26
(a) a certified agreement provides for it to be terminated if certain 27
conditions are met; and 28
(b) those conditions are met after the agreement's nominal expiry 29
s 40 52 s 40
Workplace Relations
date has passed; 1
any of the persons mentioned in subsection (2) may apply to the 2
commission to have the termination approved. 3
(2) The persons are-- 4
(a) the employer; or 5
(b) an employee whose employment is subject to the agreement; or 6
(c) an employee organisation that is bound by the agreement and that 7
has at least 1 member whose employment is subject to the 8
agreement. 9
(3) If the commission is satisfied that subsection (1)(a) and (b) has been 10
complied with, it must approve the termination. 11
(4) If the commission does so, the agreement terminates when the 12
commission's approval takes effect. 13
7--Negotiations for certified agreements etc. 14
Division
of bargaining period 15
Initiation
40.(1) If-- 16
(a) an employer; or 17
(b) an employee organisation; or 18
(c) an employee acting on his or her own behalf and for other 19
employees; 20
wants to negotiate a certified agreement in relation to employees who are 21
employed in a single business or a part of a single business, the employer, 22
organisation or employee (the "initiating party") may initiate a period (the 23
"bargaining period") for negotiating the proposed agreement. 24
(2) The bargaining period is initiated by the initiating party giving notice 25
to each other negotiating party and to the commission stating that the 26
initiating party intends to try-- 27
(a) to make an agreement with the other negotiating parties; and 28
(b) to have the agreement certified. 29
s 41 53 s 41
Workplace Relations
(3) In this division, a "negotiating party" to a proposed agreement 1
means-- 2
(a) the initiating party; or 3
(b) if the initiating party is an employer who intends to try to make an 4
agreement under section 19 or 2226--the organisation or 5
organisations who are proposed to be bound by the agreement; or 6
(c) if the initiating party is an employer who intends to try to make an 7
agreement under section 20 27--the employees at the time whose 8
employment will be subject to the agreement; or 9
(d) if the initiating party is an employee organisation--the employer 10
who is proposed to be bound by the agreement; or 11
(e) if the initiating party is an employee acting on his or her own 12
behalf and for other employees--the employer who is proposed 13
to be bound by the agreement and the employees whose 14
employment will be subject to the agreement. 15
to accompany notice 16
Particulars
41. The notice must be accompanied by particulars of-- 17
(a) the single business or part of the single business to be covered by 18
the proposed agreement; and 19
(b) the types of employees whose employment will be subject to the 20
agreement and the other persons who will be bound by the 21
agreement; and 22
(c) the matters that the initiating party proposes should be dealt with 23
by the agreement; and 24
(d) the proposed nominal expiry date of the agreement; and 25
(e) any other matters prescribed under a regulation. 26
26 Section 19 (Agreement with employee organisations) or 22 (Greenfields
agreement)
27 Section 20 (Agreement with employees)
s 42 54 s 43
Workplace Relations
bargaining period begins 1
When
42. The bargaining period begins at the end of 7 days after-- 2
(a) the day on which the notice was given; or 3
(b) if the notice was given to different persons on different days--the 4
day on which it was last given. 5
action 6
Protected
43.(1) This section identifies certain action ("protected action") to 7
which section 5128 applies. 8
(2) During the bargaining period, a protected person is entitled to 9
organise or engage in industrial action directly against the employer for the 10
purpose of-- 11
(a) supporting or advancing claims made in relation to the proposed 12
agreement; or 13
(b) responding to a lockout by the employer of employees whose 14
employment will be subject to the agreement. 15
(3) If the protected person does so, the organising of, or engaging in, the 16
industrial action is protected action. 17
(4) During the bargaining period, the employer is entitled to lock out 18
from their employment all or any of the employees whose employment will 19
be subject to the agreement for the purpose of-- 20
(a) supporting or advancing claims made by the employer in relation 21
to the proposed agreement; or 22
(b) responding to industrial action by any of the employees whose 23
employment will be subject to the agreement. 24
(5) If the employer does so, the lockout is protected action. 25
(6) If the employer locks out an employee, the employer may refuse to 26
pay remuneration to the employee for the period of the lockout. 27
(7) The employer can not lock out an employee unless the continuity of 28
the employee's employment, for the purposes prescribed under a regulation, 29
28 Section 51 (Immunity provisions)
s 44 55 s 44
Workplace Relations
is not affected by the lockout. 1
(8) This section has effect subject to the following provisions of this 2
division. 3
(9) In this section-- 4
"protected person" means-- 5
(a) an employee organisation that is a negotiating party; or 6
(b) a member of the employee organisation who is employed by the 7
employer; or 8
(c) an officer or employee of the employee organisation acting in that 9
capacity; or 10
(d) an employee who is a negotiating party. 11
action must not involve secondary boycott 12
Industrial
44.(1) Engaging in industrial action is not protected action if it is-- 13
(a) engaged in in concert with 1 or more persons or organisations 14
who are not protected persons; or 15
(b) organised other than solely by 1 or more protected persons. 16
(2) Organising industrial action is not protected action if it is-- 17
(a) organised in concert with 1 or more persons or organisations who 18
are not protected persons; or 19
(b) intended to be engaged in other than solely by 1 or more protected 20
persons. 21
(3) In this section-- 22
"protected person" means-- 23
(a) an employee organisation that is a negotiating party; or 24
(b) a member of the employee organisation who is employed by the 25
employer; or 26
(c) an officer or employee of the employee organisation acting in that 27
capacity; or 28
(d) an employee who is a negotiating party. 29
s 45 56 s 45
Workplace Relations
action etc. must not be taken until after nominal expiry 1
Industrial
date of certain agreements and awards 2
45.(1) From when-- 3
(a) a certified agreement; or 4
(b) an award under section 55(4);29 5
starts operating until its nominal expiry date has passed, an employee, 6
organisation or officer covered by subsection (2) must not, for the purpose 7
of supporting or advancing claims against the employer in relation to the 8
employment of employees whose employment is subject to the agreement 9
or award, engage in industrial action. 10
(2) The following persons are covered by subsection (1)-- 11
(a) an employee whose employment is subject to the agreement or 12
award; 13
(b) an employee organisation that is bound by the agreement or 14
award; 15
(c) an officer or employee of the employee organisation acting in that 16
capacity. 17
(3) If the employee, organisation or officer contravenes subsection (1), 18
the action is not protected action. 19
(4) From when-- 20
(a) a certified agreement; or 21
(b) an award under section 55(4); 22
comes into operation until its nominal expiry date has passed, the employer 23
must not, for the purpose of supporting or advancing the employer's claims 24
in relation to the employment of employees whose employment is subject 25
to the agreement, lock out an employee from his or her employment. 26
(5) If the employer does so, the lockout is not protected action. 27
29 Section 55 (What happens if commission terminates a bargaining period under
s 54(3) or (7))
s 46 57 s 46
Workplace Relations
(6) Engaging in industrial action in contravention of section 9530 is not 1
protected action. 2
of action to be given 3
Notice
46.(1) Action taken as mentioned in section 43(2)31 by the following 4
persons is not protected action unless the requirements in subsection (2) are 5
met-- 6
(a) an employee organisation; 7
(b) a member of the employee organisation; 8
(c) an officer or employee of the employee organisation acting in that 9
capacity; 10
(d) an employee who is a negotiating party. 11
(2) The requirements are that the employee organisation, or the employee 12
who is a negotiating party, has given the employer-- 13
(a) if the action is in response to, and is taken after the start of, a 14
lockout of employees by the employer in relation to the proposed 15
agreement--notice of the intention to take the action; or 16
(b) otherwise--at least 3 working days notice of the intention to take 17
the action. 18
(3) If 1 or more of the negotiating parties is an employee organisation, 19
any action taken as mentioned in section 43(4) by the employer to lock out 20
employees from their employment is not protected action unless-- 21
(a) the employer has given the other negotiating party or each of the 22
other negotiating parties-- 23
(i) if the lockout is in response to, and takes place after the start 24
of, industrial action organised or engaged in by an 25
organisation that is a negotiating party in relation to the 26
proposed agreement--notice of the intended lockout; or 27
(ii) otherwise--at least 3 working days notice of the intended 28
30 Section 95 (Industrial action by party to QWA)
31 Section 43 (Protected action)
s 47 58 s 47
Workplace Relations
lockout; and 1
(b) as far as it relates to a particular employee-- 2
(i) if paragraph (a)(i) applies--before the lockout begins; or 3
(ii) otherwise--at least 3 working days before the lockout 4
begins; 5
the employer has given notice to the particular employee, or has 6
taken other reasonable steps to notify the particular employee, of 7
the intended lockout. 8
(4) If 1 or more of the negotiating parties is an employee whose 9
employment will be subject to the proposed agreement, any action taken as 10
mentioned in section 43(4) by the employer to lock out employees from 11
their employment is not protected action as far as it relates to a particular 12
employee unless-- 13
(a) if the lockout is in response to, and takes place after the start of, 14
industrial action organised or engaged in by any of the employees 15
who are negotiating parties in relation to the proposed 16
agreement--before the lockout begins; or 17
(b) otherwise--at least 3 working days before the lockout begins; 18
the employer has given notice to the particular employee, or has taken other 19
reasonable steps to notify the particular employee, of the intended lockout. 20
(5) A notice under this section must state the nature of the intended action 21
and the day when it will begin. 22
(6) A notice under this section may be given before the start of the 23
bargaining period. 24
must precede industrial action 25
Negotiation
47.(1) Engaging in industrial action by a person who is a member of an 26
employee organisation that is a negotiating party is not protected action 27
unless the organisation has, before the person begins to engage in the 28
industrial action-- 29
(a) genuinely tried to reach agreement with the employer; and 30
(b) if the commission has made an order about the 31
negotiations--complied with the order as far as it applies to the 32
s 48 59 s 48
Workplace Relations
organisation. 1
(2) Engaging in industrial action by an employee who is a negotiating 2
party is not protected action unless, before the employee begins to engage in 3
the industrial action-- 4
(a) the employee, or another employee acting for the employee, has 5
genuinely tried to reach agreement with the employer; and 6
(b) if the commission has made an order in relation to the 7
negotiations--the employee has complied with the order as far as 8
it applies to the employee. 9
(3) A lockout of employees by an employer is not protected action unless 10
the employer has, before the employer begins the lockout-- 11
(a) if the employees are members of an organisation that is a 12
negotiating party--genuinely tried to reach agreement with the 13
organisation; and 14
(b) if the employees are negotiating parties--genuinely tried to reach 15
agreement with the employees; and 16
(c) if the commission has made an order about the 17
negotiations--complied with the order as far as it applies to the 18
employer. 19
ballot for bargaining period 20
Secret
48.(1) This section applies if the commission considers-- 21
(a) industrial action relating to a bargaining period is being taken or 22
the taking of industrial action is threatened, impending or 23
probable; and 24
(b) finding out, in relation to the matter, the attitudes of the employees 25
whose employment will be subject to the proposed agreement 26
might help-- 27
(i) to stop or prevent the industrial action; or 28
(ii) to settle the matters giving rise to the industrial action. 29
(2) The commission may order that a vote of employees be taken by 30
s 49 60 s 49
Workplace Relations
secret ballot32 (with or without a provision for absent voting), in accordance 1
with the commission's directions, to find out their attitudes about the matter. 2
(3) After an order is made, the organising of, or engaging in, industrial 3
action by the employee organisation or employees is not protected action 4
unless-- 5
(a) the ballot has been taken; and 6
(b) the industrial action has been approved by a majority of the valid 7
votes cast in the ballot. 8
(4) If after an order is made, but before the vote is taken, the commission 9
forms the view that the ballot should not be proceeded with because it has 10
satisfied itself that-- 11
(a) the matters giving rise to the industrial action have been, or are 12
about to be, settled; or 13
(b) the industrial action has stopped or been prevented, or is about to 14
stop or be prevented; 15
the commission must revoke the order. 16
(5) In subsection (3)-- 17
"organisation" includes-- 18
(a) a member of the organisation; and 19
(b) an officer or employee of the organisation acting in that capacity. 20
action must be properly authorised 21
Industrial
49.(1) Engaging in industrial action by members of an employee 22
organisation that is a negotiating party is not protected action unless, before 23
the industrial action begins-- 24
(a) the industrial action is properly authorised by the organisation's 25
management committee or someone authorised by the committee 26
to authorise the industrial action; and 27
(b) if the organisation's rules specify the way industrial action is to be 28
32 See section 301 (Conducting a secret ballot) for the way a secret ballot is
conducted.
s 50 61 s 50
Workplace Relations
authorised--the industrial action is properly authorised under the 1
rules; and 2
(c) notice of the giving of the authorisation is given to the registrar. 3
(2) Industrial action is taken to be properly authorised under an employee 4
organisation's rules even though a technical breach has happened in 5
authorising the industrial action, if the person who committed the breach 6
acted in good faith. 7
(3) Examples of a technical breach in authorising industrial action 8
include-- 9
(a) a contravention of the organisation's rules; and 10
(b) an error or omission in complying with this Act; and 11
(c) participation, by a person not eligible to do so, in the making of a 12
decision by a management committee, or by members, of the 13
organisation. 14
(4) Industrial action is taken to have been properly authorised under an 15
employee organisation's rules, and to have been authorised before the 16
industrial action began, unless-- 17
(a) the commission declares in a proceeding that the industrial action 18
was not properly authorised under the rules; and 19
(b) the proceeding was brought in the commission within 6 months 20
after the notice was given to the registrar under subsection (1)(c). 21
(5) As far as an employee organisation's rules specify the way in which 22
industrial action that section 43 entitles the organisation to organise or 23
engage in is to be authorised, the rules do not contravene the Industrial 24
Organisation Act 1996, section 2233 unless the way specified contravenes 25
that section. 26
happens if application to certify agreement is not made within 27
What
21 days 28
50. Unless an application to the commission to certify an agreement is 29
made within 21 days after the day when the agreement is made, nothing 30
33 Industrial Organisation Act 1996, section 22 (General requirements for rules)
s 51 62 s 52
Workplace Relations
done during the bargaining period by an employee whose employment is 1
subject to the agreement or by a person bound by the agreement is protected 2
action. 3
provisions 4
Immunity
51.(1) No action lies under a law for industrial action that is protected 5
action unless the action has involved 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
(2) Subsection (1) does not prevent an action for defamation being 10
brought in relation to anything that happened during the industrial action. 11
(3) In this section-- 12
"law" means a written or unwritten law, but does not include the State 13
Transport Act 1938. 14
not to dismiss employee etc. for engaging in protected action 15
Employer
52.(1) An employer must not-- 16
(a) dismiss an employee, injure an employee in his or her 17
employment or change an employee's position to the employee's 18
prejudice; or 19
(b) threaten to dismiss an employee, injure an employee in his or her 20
employment or change an employee's position to the employee's 21
prejudice; 22
wholly or partly because the employee is proposing to engage, is engaging, 23
or has engaged, in protected action. 24
(2) Subsection (1) does not apply to any of the following actions taken by 25
the employer-- 26
(a) standing-down the employee; 27
(b) refusing to pay the employee if, under the common law, the 28
employer is permitted to do so because the employee has not 29
s 53 63 s 54
Workplace Relations
performed work as directed; 1
(c) action of the employer that is itself protected action. 2
(3) In a proceeding under section 6334 for an alleged contravention of 3
subsection (1), it is to be presumed, unless the employer proves otherwise, 4
that the alleged conduct of the employer was carried out wholly or partly 5
because the employee was proposing to engage, was engaging, or had 6
engaged, in protected action. 7
bargaining period ends 8
When
53. The bargaining period ends if any of the following events happen-- 9
(a) an agreement under division 235 is made by the employer and any 10
1 or more of the other negotiating parties; 11
(b) the initiating party gives each of the other negotiating parties 12
notice that the initiating party no longer wants to reach an 13
agreement under division 2 with the other parties; 14
(c) the commission terminates the bargaining period. 15
of commission to suspend or terminate bargaining period 16
Power
54.(1) The commission may suspend or terminate the bargaining period 17
if, after giving the negotiating parties an opportunity to be heard, it is 18
satisfied any of the circumstances in subsections (2) to (7) exists or existed. 19
(2) A circumstance for subsection (1) is that a negotiating party that, 20
before or during the bargaining period, has organised or taken, or is 21
organising or taking, industrial action to support or advance claims in 22
relation to the proposed agreement-- 23
(a) did not genuinely try to reach an agreement with the other 24
negotiating parties before organising or taking the industrial 25
action; or 26
(b) is not genuinely trying to reach an agreement with the other 27
negotiating parties; or 28
34 Section 63 (Penalties for contravening penalty provisions)
35 Division 2 (Making agreements)
s 54 64 s 54
Workplace Relations
(c) has not complied with the commission's directions relating to the 1
proposed agreement or to a matter that arose during the 2
negotiations for the proposed agreement; or 3
(d) has not complied with a recommendation of the commission 4
under section 24136 relating to-- 5
(i) the proposed agreement; or 6
(ii) a matter that arose during the negotiations for the proposed 7
agreement. 8
(3) A circumstance for subsection (1) is that industrial action, being taken 9
to support or advance claims in relation to the proposed agreement, is 10
threatening-- 11
(a) to endanger the life, the personal health or safety, or the welfare, 12
of the population or of part of it; or 13
(b) to cause significant damage to the economy or an important part 14
of it. 15
(4) A circumstance for subsection (1) is that industrial action is being 16
organised or taken by-- 17
(a) an organisation that is a negotiating party; or 18
(b) a member of the organisation who is employed by the employer; 19
or 20
(c) an officer or employee of the organisation acting in that capacity; 21
against an employer to support or advance claims in relation to 22
employees-- 23
(d) whose employment will be subject to the agreement; and 24
(e) who are neither members, nor eligible to become members, of the 25
organisation. 26
(5) A circumstance for subsection (1) is that industrial action that is being 27
organised or taken by an organisation that is a negotiating party-- 28
(a) relates, to a significant extent, to a demarcation dispute; or 29
(b) contravenes a commission order that relates, to a significant 30
36 Section 241 (Recommendation by consent)
s 54 65 s 54
Workplace Relations
extent, to a demarcation dispute. 1
(6) If the bargaining period relates to employees employed in a part of a 2
single business, a circumstance for subsection (1) is that the initiating party 3
is not complying with an award, an order, a direction of the commission, or 4
a certified agreement, in relation to another part of the single business. 5
(7) A circumstance for subsection (1) is that-- 6
(a) immediately before the commencement of this section, the wages 7
and conditions of the type of employees whose employment will 8
be subject to the agreement were determined by a paid rates 9
award, or would have been so determined if a certified agreement 10
or EFA had not prevailed over the award; and 11
(b) as far as the wages and conditions of the type of employees 12
whose employment will be subject to the agreement were, before 13
the commencement of this section, customarily determined by an 14
award, they were determined by a paid rates award; and 15
(c) there is no reasonable prospect of the negotiating parties reaching 16
an agreement under division 2 during the bargaining period. 17
(8) The commission-- 18
(a) must not suspend or terminate the bargaining period under 19
subsection (1), in a circumstance in subsection (2), (4), (5), (6) or 20
(7), except on application by a negotiating party; but 21
(b) may suspend or terminate the period under subsection (1), in a 22
circumstance in subsection (3)-- 23
(i) of its own initiative; or 24
(ii) on application by a negotiating party or the Minister. 25
(9) Anything done by a negotiating party or another person in relation to 26
the proposed agreement is not protected action if it is done while the 27
bargaining period is suspended. 28
(10) When terminating the bargaining period, if the commission 29
considers it to be in the public interest, it may declare that, during a specified 30
period beginning at the time of the termination, a specified negotiating party 31
or employee of the employer-- 32
(a) is not allowed to initiate a new bargaining period in relation to 33
s 55 66 s 55
Workplace Relations
specified matters that are dealt with by the proposed agreement; or 1
(b) may initiate the bargaining period only on specified conditions. 2
(11) In this section-- 3
"paid rates award" means an award that-- 4
(a) includes a statement to the effect that it is a paid rates award; or 5
(b) has been regarded by the commission as a paid rates award when 6
applying principles for determining wages and employment 7
conditions. 8
happens if commission terminates a bargaining period under 9
What
s 54(3) or (7) 10
55.(1) This section applies if a bargaining period is terminated for the 11
circumstance in section 54(3) or (7). 12
(2) As soon as practicable, the commission must begin to exercise the 13
conciliation powers under section 56-- 14
(a) to facilitate the making of an agreement under division 2;37 or 15
(b) otherwise to settle any matter or issue that could be covered by the 16
agreement. 17
(3) Subsection (2) applies even if the commission has already attempted 18
conciliation during the bargaining period. 19
(4) If, after conciliation powers under subsection (2) have been exercised, 20
a full bench is satisfied-- 21
(a) the negotiating parties have not settled the matters that were at 22
issue during the bargaining period (whether or not by making an 23
agreement); and 24
(b) it is not likely that further conciliation will result in the matters 25
being settled within a reasonable time; 26
the full bench may exercise the arbitration powers mentioned in section 56 27
to make an award that deals with the matters. 28
37 Division 2 (Making agreements)
s 56 67 s 57
Workplace Relations
(5) Despite any other provision of this Act, the arbitration powers may be 1
exercised only by a full bench. 2
(6) In exercising the arbitration powers, a full bench must consider the 3
following-- 4
(a) the matters that were at issue during the bargaining period; 5
(b) the merits of the case; 6
(c) the interests of the negotiating parties and the public interest; 7
(d) how productivity might be improved in the business or part of the 8
business concerned; 9
(e) the extent to which the conduct of the negotiating parties during 10
the bargaining period was reasonable; 11
(f) any relevant principles formulated by a full bench for this 12
subsection. 13
(7) Subsection (6) does not, by implication, limit the matters to which a 14
full bench may have regard. 15
of commission and full bench when s 55 applies 16
Powers
56.(1) The commission has the conciliation powers for the matters in 17
section 55(2) that it would have under section 24038 if that section applied to 18
conciliation of the matters instead of industrial disputes. 19
(2) A full bench has the arbitration powers for the matters in 20
section 55(4) that it would have under section 240 if that section applied to 21
arbitration of the matters, instead of industrial disputes, by a full bench. 22
under s 55 23
Awards
57.(1) An award under section 55(4)39 must specify a date as its nominal 24
expiry date. 25
(2) Subject to this section, the award operates at all times after it 26
38 Section 240 (Action on industrial dispute)
39 Section 55 (What happens if commission terminates a bargaining period under
s 54(3) or (7))
s 57 68 s 57
Workplace Relations
commences. 1
(3) The award has effect subject to any conditions specified in it. 2
(4) Before the award's nominal expiry date has passed, a full bench must 3
not revoke the award unless satisfied-- 4
(a) the employer and the 1 or more organisations, or a majority of the 5
employees, who are bound by the award have agreed to the 6
revocation (for example, because they propose to make an 7
agreement under division 240); and 8
(b) the revocation would not be against the public interest. 9
(5) After the award's nominal expiry date-- 10
(a) the employer, or an organisation, bound by the award; or 11
(b) a majority of the employees to whom the award applies; 12
may give notice to all of the employees, or other employees, to whom the 13
award applies and persons, or other persons, who are bound by the award 14
and to the commission, stating that the award is revoked with effect from a 15
specified day. 16
(6) The specified day must be at least 28 days after-- 17
(a) the day on which the notice is given; or 18
(b) if it is given to different persons on different days--the day on 19
which it is last given. 20
(7) The award is revoked on the specified day. 21
(8) The award may be amended only to-- 22
(a) remove ambiguity or uncertainty; or 23
(b) include, omit or amend a term (however specified) that authorises 24
an employer to stand-down an employee. 25
(9) Before the award's nominal expiry date has passed, no bargaining 26
period may be initiated under section 4041 for negotiating an agreement in 27
40 Division 2 (Making agreements)
41 Section 40 (Initiation of bargaining period)
s 58 69 s 60
Workplace Relations
relation to the employment of employees whose employment is dealt with 1
in the award. 2
not to arbitrate during bargaining period 3
Commission
58. During a bargaining period, the commission must not exercise its 4
arbitration powers under section 24042 for a matter that is at issue between 5
the negotiating parties. 6
for agreements 7
Conciliation
59.(1) The commission has the conciliation powers for a matter arising 8
under this part that it would have under section 240 if that section applied to 9
conciliation of the matters instead of industrial disputes. 10
(2) If 2 or more employee organisations are involved in the negotiations 11
or proposed negotiations, the commission may order that the organisations 12
be represented, for conciliating the matter, by a single person or group of 13
persons authorised by the organisations to represent them (whether 14
generally or for the particular negotiations). 15
(3) Subsection (2) does not, by implication, limit subsection (1). 16
not to discriminate between unionist and non-unionist 17
Employers
60. In negotiating an agreement under division 2,43 an employer must not 18
discriminate between the employer's employees because-- 19
(a) some of the employees are members of an employee 20
organisation, while others are not members of the organisation; or 21
(b) some of the employees are members of a particular employee 22
organisation, while others are not members of the organisation or 23
are members of a different employee organisation. 24
42 Section 240 (Action on industrial dispute)
43 Division 2 (Making agreements)
s 61 70 s 62
Workplace Relations
8--Prohibition of coercion in relation to agreements 1
Division
of persons to make, amend or terminate certified agreements 2
Coercion
etc. 3
61.(1) A person must not-- 4
(a) take or threaten to take industrial action or other action; or 5
(b) refrain or threaten to refrain from taking action; 6
with intent to coerce someone else to agree, or not to agree, to-- 7
(c) making, amending or terminating, or extending the nominal 8
expiry date of, an agreement under division 2;44 or 9
(d) approving anything mentioned in paragraph (c). 10
(2) Subsection (1) does not apply to action, or industrial action, that is 11
protected action (within the meaning of division 745). 12
(3) An employer must not coerce, or attempt to coerce, an employee of 13
the employer-- 14
(a) not to make a request mentioned in section 20(5)46 in relation to 15
an agreement the employer proposes to make; or 16
(b) to withdraw the request. 17
Division 9--Enforcement and remedies 18
provisions 19
Penalty
62. In this division, each of the following is a penalty provision-- 20
(a) section 35 (Amendment if discrimination between unionists and 21
non-unionists); 22
(b) section 45 (Industrial action etc. must not be taken until after 23
44 Division 2 (Making agreements)
45 Division 7 (Negotiations for certified agreements etc.)
46 Section 20 (Agreement with employees)
s 63 71 s 63
Workplace Relations
nominal expiry date of certain agreements and awards); 1
(c) section 52 (Employer not to dismiss employee etc. for engaging 2
in protected action); 3
(d) section 60 (Employers not to discriminate between unionist and 4
non-unionist); 5
(e) section 61 (Coercion of persons to make, amend or terminate 6
certified agreements etc.). 7
for contravening penalty provisions 8
Penalties
63.(1) A contravention of a penalty provision is not an offence. 9
(2) However, a magistrate may, by order, impose a penalty on a person 10
who contravenes a penalty provision. 11
(3) The penalty can not be more than-- 12
(a) for a corporation--135 penalty units; or 13
(b) otherwise--27 penalty units. 14
(4) An application for an order for a contravention of section 3547 may be 15
made by-- 16
(a) the employees making the request mentioned in section 35; or 17
(b) an employee organisation of which any of the employees making 18
the request is a member; or 19
(c) an inspector; or 20
(d) another person prescribed under a regulation. 21
(5) An application for an order for a contravention of section 4548 may be 22
made by-- 23
(a) an employee whose employment is subject to the certified 24
agreement concerned; or 25
(b) another person who is bound by the agreement; or 26
47 Section 35 (Amendment if discrimination between unionists and non-unionists)
48 Section 45 (Industrial action etc. must not be taken until after nominal expiry
date of certain agreements and awards)
s 63 72 s 63
Workplace Relations
(c) another person prescribed under a regulation. 1
(6) An application for an order for a contravention of section 5249 may be 2
made by-- 3
(a) the employee concerned; or 4
(b) an employee organisation of which the employee is a member; or 5
(c) an inspector; or 6
(d) another person prescribed under a regulation. 7
(7) An application for an order for a contravention of section 6050 may be 8
made by-- 9
(a) an employee who allegedly was disadvantaged because of the 10
discrimination mentioned in section 60; or 11
(b) an employee organisation of which the employee is a member; or 12
(c) an inspector; or 13
(d) another person prescribed under a regulation. 14
(8) An application for an order for a contravention of section 6151 may be 15
made by-- 16
(a) an employee whose employment is subject to the agreement, or 17
will be subject to the proposed agreement concerned; or 18
(b) another person bound by the agreement or who will be bound by 19
the proposed agreement; or 20
(c) the person who allegedly was intended to be coerced; or 21
(d) an employee organisation of which the person is a member; or 22
(e) an inspector; or 23
(f) another person prescribed under a regulation. 24
(9) The magistrate may order that a penalty, or part of a penalty, be paid 25
49 Section 52 (Employer not to dismiss employee etc. for engaging in protected
action)
50 Section 60 (Employers not to discriminate between unionist and non-unionist)
51 Section 61 (Coercion of persons to make, amend or terminate certified
agreements etc.)
s 64 73 s 65
Workplace Relations
to any person who may have made the application (other than an officer or 1
employee of the State or a public service officer). 2
(10) Any part of the penalty that is ordered to be paid to the person must 3
first be paid to the person. 4
(11) The remainder of the penalty must then be paid to the consolidated 5
fund. 6
and compensation if employer contravenes s 52 7
Reinstatement
64.(1) If an employer contravenes section 52,52 the commission may 8
order the employer-- 9
(a) if the contravention was constituted by dismissing an 10
employee--to reinstate the employee to the position the employee 11
occupied immediately before the dismissal or to a position at least 12
as favourable as that position; and 13
(b) to pay the employee dismissed, injured or prejudiced, 14
compensation for loss suffered because of the dismissal, injury or 15
prejudice. 16
(2) The rights of and relating to reinstatement that are conferred on an 17
employee by this section do not limit any other rights of the employee. 18
Division 10--General 19
ballot on valid majority 20
Secret
65.(1) If the commission-- 21
(a) is required under this part to be satisfied that a valid majority of 22
the persons employed at a particular time whose employment is 23
or will be subject to an agreement have genuinely made or 24
terminated the agreement, or given an approval; and 25
(b) is not so satisfied; 26
52 Section 52 (Employer not to dismiss employee etc. for engaging in protected
action)
s 66 74 s 66
Workplace Relations
the commission may order a vote be taken by secret ballot53 (with or 1
without a provision for absent voting), in accordance with the commission's 2
directions, of persons employed at the time of the ballot whose employment 3
is or will be subject to the agreement to decide whether they would make or 4
terminate the agreement, or give the approval. 5
(2) If a majority of the validly cast votes is in favour of making or 6
terminating the agreement, or giving the approval, the commission is taken 7
to be satisfied of the requirement. 8
(3) Before a vote is taken, the commission may revoke an order under 9
subsection (1) if it becomes satisfied that the requirement of 10
subsection (1)(a) has been met. 11
laws 12
Complementary
66.(1) To enable functions to be performed or powers to be exercised by 13
the Australian Commission, the Commonwealth provisions apply as a law 14
of the State with-- 15
(a) the amendments required under a regulation; and 16
(b) any other amendments allowed under a regulation. 17
(2) In this section-- 18
"Commonwealth provisions" means the Commonwealth Act, part VIB 19
and the other provisions of that Act as far as they relate to the part. 20
53 See section 301 (Conducting a secret ballot) for the way a secret ballot is
conducted.
s 67 75 s 68
Workplace Relations
ART 2--QUEENSLAND WORKPLACE 1
P
AGREEMENTS 2
Division 1--Preliminary 3
of pt 2 4
Object
67. The object of this part is to facilitate the making, approving by an 5
enterprise commissioner, and operation, of certain agreements ("QWAs") 6
between a single employer and a single employee. 7
for pt 2 8
Definitions
68. In this part-- 9
"additional approval requirements" means the additional approval 10
requirements in section 84.54 11
"amendment agreement" see section 79. 12
"ancillary document" means any of the following-- 13
(a) an amendment agreement; 14
(b) an extension agreement; 15
(c) a termination agreement; 16
(d) a termination notice. 17
"approval notice" means an approval notice issued by an enterprise 18
commissioner. 19
"bargaining agent" means a person appointed as a bargaining agent under 20
section 78. 21
"certified copy" of a document means a copy that is certified as being a 22
true copy of the document. 23
"employee" see section 69(2). 24
"employer" see section 69(2). 25
54 Section 84 (Additional approval requirements for QWA and ancillary documents)
s 69 76 s 69
Workplace Relations
"existing employee", in relation to a QWA, means an employee who 1
signed the QWA after commencing the employment to which the 2
QWA relates. 3
"extension agreement" means an agreement to extend the nominal expiry 4
date of a QWA. 5
"file" a QWA or ancillary document means file with the registrar or 6
employment advocate. 7
"filing receipt" means a receipt issued by the registrar or employment 8
advocate. 9
"filing requirements" means the filing requirements in section 82. 10
"new employee", in relation to a QWA, means an employee who signed 11
the QWA before, or at the time of, commencing the employment to 12
which the QWA relates. 13
"nominal expiry date" of a QWA, see section 76. 14
"party", for a QWA or ancillary document, means the employer or 15
employee. 16
"period of operation" of a QWA, see section 77. 17
"QWA" see sections 69 and 89. 18
"QWA date" means the date on which the employer and employee sign 19
the QWA or, if they sign on different dates, the later of the dates. 20
"refusal notice" means a refusal notice issued by an enterprise 21
commissioner under division 5.55 22
"relevant or designated award" means the relevant or designated award 23
that is used when applying the no-disadvantage test. 24
"termination agreement" see section 80. 25
"termination notice" see section 80. 26
QWAs and ancillary documents--interpretation 27
Proposed
69.(1) As far as the context permits, a reference in this part to a QWA or 28
55 Division 5 (Approving QWAs and ancillary documents)
s 70 77 s 71
Workplace Relations
ancillary document includes a reference to a proposed QWA or ancillary 1
document. 2
(2) In relation to a proposed QWA or ancillary document, a reference in 3
this part to the employer or employee is a reference to the person who will 4
be the employer or employee when the QWA or ancillary document starts 5
to operate. 6
and powers of enterprise commissioner 7
Functions
70.(1) An enterprise commissioner has the functions set out in this part. 8
(2) In performing the functions, the enterprise commissioner may 9
exercise the powers of a commissioner that are necessary to facilitate the 10
approval, or operation, of a QWA or ancillary document. 11
(3) In performing the functions, the enterprise commissioner may call on 12
the assistance of the employment advocate. 13
(4) The enterprise commissioner must, as far as practicable, perform the 14
functions-- 15
(a) in a way that furthers the objects of this Act and, in particular, the 16
object of this part; and 17
(b) without undue delay; and 18
(c) in an informal way. 19
(5) Section 335(4) 56 does not apply to the performance of the enterprise 20
commissioner's functions under this part. 21
regarding employment advocate's functions 22
Protocol
71.(1) As soon as practicable after the commencement of this part, the 23
president and chief executive must establish a protocol about the 24
employment advocate's functions under this part. 25
(2) In exercising functions under this part, the employment advocate 26
must apply the protocol. 27
56 Section 335 (Basis of procedures and decisions of the commission and
magistrates)
s 72 78 s 74
Workplace Relations
Division 2--General rules about QWAs and ancillary documents 1
and ancillary documents only have effect as provided by this 2
QWAs
part 3
72.(1) A QWA or ancillary document has effect as provided by this part, 4
and not otherwise. 5
(2) In particular-- 6
(a) a QWA for a new employee has no effect before a filing receipt is 7
issued for the QWA; and 8
(b) a QWA for an existing employee has no effect before an approval 9
notice is issued for the QWA. 10
QWAs 11
Collective
73.(1) In this part, 2 or more agreements that have been negotiated 12
collectively may be included in the same document if the same employer is 13
a party to all the agreements. 14
(2) The agreements need not be in the same terms. 15
(3) A QWA for a new employee can not be included in the same 16
document as a QWA for an existing employee. 17
Division 3--Making, amending or terminating a QWA 18
and employee may make a QWA 19
Employer
74.(1) A single employer and a single employee, other than an employer 20
and employee mentioned in subsection (3), may make a QWA that deals 21
with matters relating to the relationship between an employer and employee. 22
(2) A QWA may be made before commencement of the employment. 23
(3) The employer of an employee employed in 1 of the following may 24
not make a QWA with the employee-- 25
(a) a department of government or part of a department; 26
(b) a public service office or part of a public service office under the 27
s 75 79 s 75
Workplace Relations
Public Service Act 1996; 1
(c) an agency, authority, commission, corporation, instrumentality, 2
office, or other entity, established under an Act or under State 3
authorisation for a public or State purpose; 4
(d) a part of an entity mentioned in paragraph (c); 5
(e) a registry or other administrative office of a court of the State of 6
any jurisdiction; 7
(f) the parliamentary service; 8
(g) the Governor's official residence (known as `Government 9
House') and its associated administrative unit; 10
(h) a court of the State of any jurisdiction; 11
(i) the police service to the extent that it does not include staff 12
members mentioned in the Police Service Administration Act 13
1990, section 2.5(1)(a); 14
(j) another entity, or part of another entity, declared under a 15
regulation for this section. 16
to be included in QWA 17
Matters
75.(1) The employer must ensure the QWA includes the provisions 18
about discrimination prescribed under a regulation. 19
(2) If the QWA does not in fact include the prescribed provisions about 20
discrimination, the QWA is taken to include the provisions. 21
(3) The employer must ensure the QWA does not include provisions that 22
prohibit or restrict disclosure of details of the QWA by either party to 23
another person. 24
(4) The employer must ensure the QWA includes a dispute resolution 25
procedure. 26
(5) If the QWA does not include a dispute resolution procedure, the 27
QWA is taken to include the model dispute resolution procedure prescribed 28
under a regulation. 29
(6) If a dispute resolution procedure confers powers on an enterprise 30
commissioner to prevent or settle disputes between the parties to the QWA 31
s 76 80 s 77
Workplace Relations
about the application or interpretation of the QWA, the enterprise 1
commissioner may exercise the powers. 2
(7) To avoid doubt, unless power is conferred on an enterprise 3
commissioner to prevent or settle disputes, the enterprise commissioner 4
must not exercise arbitration powers to prevent or settle a dispute between 5
the parties to the QWA. 6
expiry date of QWA 7
Nominal
76.(1) A QWA may specify a date as its nominal expiry date. 8
(2) The date can not be more than 3 years after the QWA date. 9
(3) If no date is specified, the nominal expiry date is the third anniversary 10
of the QWA date. 11
(4) An employer and employee may make a written agreement (an 12
"extension agreement") that extends the nominal expiry date. 13
(5) The extended date can not be more than 3 years after the QWA date. 14
(6) The extension agreement has no effect unless a filing receipt is issued 15
for the extension agreement at least 21 days before the nominal expiry date 16
that is to be extended. 17
(7) The extension agreement takes effect on the day after an approval 18
notice is issued for the extension agreement. 19
of operation of QWA 20
Period
77.(1) A QWA for a new employee starts operating on the later of the 21
following days-- 22
(a) the day after a filing receipt is issued for the QWA; 23
(b) the day specified in the QWA as the starting day; 24
(c) the day the employment commences. 25
(2) A QWA for a new employee stops operating at the earlier of the 26
following times-- 27
(a) the end of the day when a refusal notice is issued in relation to the 28
QWA; 29
s 78 81 s 79
Workplace Relations
(b) the time when a termination under section 8057 takes effect; 1
(c) the time when another QWA between the employer and 2
employee starts to operate. 3
(3) A QWA for an existing employee starts operating on the later of the 4
following days-- 5
(a) the day after an approval notice is issued for the QWA; 6
(b) the day specified in the QWA as the starting day. 7
(4) A QWA for an existing employee stops operating at the earlier of the 8
following times-- 9
(a) the time when a termination under section 80 takes effect; 10
(b) the time when another QWA between the employer and 11
employee starts to operate. 12
agents 13
Bargaining
78.(1) An employer or employee may appoint a person to be his or her 14
bargaining agent for the making, approval, amendment or termination of a 15
QWA. 16
(2) The appointment must be written. 17
(3) An employer or employee must not refuse to recognise a bargaining 18
agent appointed by the other party if the employer or employee has been 19
given a copy of the bargaining agent's instrument of appointment. 20
(4) An employer or employee must not coerce, or attempt to coerce, the 21
other party-- 22
(a) to appoint, or not to appoint, a particular person as a bargaining 23
agent; or 24
(b) to terminate the appointment of a bargaining agent. 25
mending a QWA 26
A
79.(1) An employer and employee may make a written agreement 27
57 Section 80 (Terminating a QWA)
s 80 82 s 81
Workplace Relations
("amendment agreement") amending a QWA. 1
(2) The amendment agreement takes effect on the later of the following 2
days-- 3
(a) the day after an approval notice is issued for the amendment 4
agreement; 5
(b) the day specified in the amendment agreement as the date of 6
effect. 7
(3) Section 7558 applies to the QWA as amended in the same way as it 8
applied to the original QWA. 9
a QWA 10
Terminating
80.(1) The employer and employee may at any time make a written 11
agreement ("termination agreement") to terminate the QWA. 12
(2) The termination agreement takes effect on the later of the following 13
times-- 14
(a) the end of the day on which an approval notice is issued for the 15
termination agreement; 16
(b) the day specified in the termination agreement as the date of 17
effect. 18
(3) After the nominal expiry date of a QWA, either the employer or 19
employee may file a notice ("termination notice") to terminate the QWA. 20
(4) The termination notice takes effect at the end of the 28th day after the 21
party filing the termination notice gave notice to the other party of the 22
termination notice being filed. 23
Division 4--Filing and approving QWAs and ancillary documents 24
QWAs and ancillary documents 25
Filing
81.(1) A QWA or ancillary document ("document") may be filed with 26
the registrar or employment advocate. 27
58 Section 75 (Matters to be included in QWA)
s 82 83 s 82
Workplace Relations
(2) If the registrar or employment advocate is satisfied that the filing 1
requirements for the document have been met, the registrar or employment 2
advocate must issue a filing receipt to the person who filed it. 3
(3) For a QWA, the registrar or employment advocate may issue a filing 4
receipt only if it is filed within 14 days after the QWA date. 5
(4) If the document is filed with the employment advocate, the 6
employment advocate must immediately give it to the registrar. 7
(5) The registrar must keep a QWA or ancillary document in a way that 8
maintains the confidentiality of its contents. 9
requirements 10
Filing
82.(1) The filing requirements for a QWA are-- 11
(a) the QWA must be signed and dated by each of the parties, and the 12
signatures must be witnessed; and 13
(b) the QWA must be accompanied by a declaration by the employer, 14
declaring-- 15
(i) the QWA complies with section 75;59 and 16
(ii) before the employee signed the QWA, the employer gave 17
the employee a copy of an information statement prepared 18
by the employment advocate. 19
(2) The information statement prepared by the employment advocate for 20
subsection (1) must include information about the following matters, but 21
may include other information-- 22
(a) entitlements under this Act; 23
(b) occupational health and safety law; 24
(c) services provided by the employment advocate; 25
(d) bargaining agents. 26
(3) The filing requirements for an amendment agreement are-- 27
(a) the agreement must be signed and dated by each of the parties, 28
59 Section 75 (Matters to be included in QWA)
s 83 84 s 84
Workplace Relations
and the signatures must be witnessed; and 1
(b) the agreement must be accompanied by a declaration by the 2
employer, declaring the QWA, as amended, complies with 3
section 75. 4
(4) The filing requirement for an extension agreement is the agreement 5
must be signed and dated by each of the parties, and the signatures must be 6
witnessed. 7
(5) The filing requirement for a termination agreement is the agreement 8
must be signed and dated by each of the parties, and the signatures must be 9
witnessed. 10
(6) The filing requirement for a termination notice is the notice must be 11
signed and dated by the party filing the notice, and the signature must be 12
witnessed. 13
(7) The employer must provide any other information required under a 14
regulation. 15
declaration must be accurate 16
Employer's
83. An employer must not, in a declaration filed for this part, make a 17
statement that the employer knows, or ought reasonably to know, is false or 18
misleading. 19
5--Approving QWAs and ancillary documents 20
Division
approval requirements for QWA and ancillary documents 21
Additional
84.(1) The additional approval requirements for a QWA are-- 22
(a) the QWA complies with section 75;60 and 23
(b) the employee received a copy of the QWA at least the required 24
number of days before signing the QWA; and 25
(c) the employer explained the effect of the QWA to the employee as 26
soon as practicable after the employee first received a copy of it; 27
60 Section 75 (Matters to be included in QWA)
s 84 85 s 84
Workplace Relations
and 1
(d) the employee genuinely consented to making the QWA. 2
(2) The additional approval requirements for an amendment agreement 3
are-- 4
(a) the QWA, as amended, complies with section 75; and 5
(b) the employee received a copy of the amendment agreement at 6
least 14 days before signing the amendment agreement; and 7
(c) the employer explained the effect of the amendment agreement to 8
the employee as soon as practicable after the employee first 9
received a copy of it; and 10
(d) the employee genuinely consented to making the amendment 11
agreement. 12
(3) The explanation of the effect of the QWA or amendment agreement 13
mentioned in subsection (1) or (2) must have been done in a way that was 14
appropriate, having regard to the employee's particular circumstances and 15
needs. 16
17
Example of employees with particular circumstances and needs--
18
1. Women
19
2. Persons from a non-English-speaking background
20
3. Young persons
(4) The additional approval requirement for an extension agreement is 21
that the employee genuinely consented to making the extension agreement. 22
(5) The additional approval requirement for a termination agreement is 23
that the employee genuinely consented to making the termination 24
agreement. 25
(6) In subsection (1)-- 26
"required number of days" means-- 27
(a) for a new employee--5 days; or 28
(b) for an existing employee--14 days. 29
s 85 86 s 86
Workplace Relations
pproving QWA 1
A
85.(1) An enterprise commissioner must approve a QWA for which a 2
filing receipt has been issued if the enterprise commissioner is satisfied-- 3
(a) the QWA passes the no-disadvantage test; and 4
(b) the QWA meets the additional approval requirements. 5
(2) If the enterprise commissioner has concerns about whether the QWA 6
passes the no-disadvantage test, but the concerns are resolved by-- 7
(a) a written undertaking given by the employer and accepted by the 8
enterprise commissioner; or 9
(b) other action by the parties; 10
the enterprise commissioner must approve the QWA. 11
(3) If the enterprise commissioner-- 12
(a) is still not satisfied the QWA passes the no-disadvantage test; but 13
(b) is satisfied that approving the QWA is not contrary to the public 14
interest; 15
the enterprise commissioner must approve the QWA. 16
(4) If the enterprise commissioner is not satisfied the QWA meets the 17
additional approval requirements, the enterprise commissioner must refuse 18
to approve the QWA. 19
amendment agreement 20
Approving
86.(1) An enterprise commissioner must approve an amendment 21
agreement for which a filing receipt has been issued if the enterprise 22
commissioner is satisfied-- 23
(a) the QWA, as amended, passes the no-disadvantage test; and 24
(b) the agreement meets the additional approval requirements. 25
(2) If the enterprise commissioner has concerns about whether the 26
QWA, as amended, passes the no-disadvantage test, but the concerns are 27
resolved by-- 28
(a) a written undertaking given by the employer and accepted by the 29
enterprise commissioner; or 30
s 87 87 s 88
Workplace Relations
(b) other action by the parties; 1
the enterprise commissioner must approve the amendment agreement. 2
(3) If the enterprise commissioner-- 3
(a) is still not satisfied the QWA passes the no-disadvantage test; but 4
(b) is satisfied that approving the QWA is not contrary to the public 5
interest; 6
the enterprise commissioner must approve the QWA. 7
(4) If the enterprise commissioner is not satisfied the amendment 8
agreement meets the additional approval requirements, the enterprise 9
commissioner must refuse to approve the amendment agreement. 10
other ancillary documents 11
Approving
87.(1) This section applies to the following ancillary documents-- 12
(a) an extension agreement; 13
(b) a termination agreement; 14
(c) a termination notice. 15
(2) An enterprise commissioner may approve the ancillary document 16
only if satisfied the ancillary document meets the additional approval 17
requirements for the document. 18
commissioner must issue approval or refusal notice 19
Enterprise
88.(1) If an enterprise commissioner approves a QWA or ancillary 20
document, the enterprise commissioner must issue an approval notice to the 21
employer. 22
(2) If the enterprise commissioner refuses to approve a QWA or 23
ancillary document, the enterprise commissioner must issue a refusal notice 24
to the employer. 25
(3) In each approval or refusal notice, the enterprise commissioner must 26
identify the relevant or designated award that applies to the QWA. 27
s 89 88 s 92
Workplace Relations
taken to be included in QWAs 1
Undertakings
89. An undertaking accepted by an enterprise commissioner under this 2
division is taken to be included in the QWA. 3
commissioner to issue copies of approved QWAs and 4
Enterprise
ancillary documents 5
90. After a QWA or ancillary document is approved by an enterprise 6
commissioner, the enterprise commissioner must issue to the employer a 7
copy of the QWA or ancillary document, as approved. 8
Division 6--Effect of a QWA 9
of QWA on awards and agreements 10
Effect
91.(1) A QWA, during its period of operation, operates to the exclusion 11
of an award that would otherwise apply to the employee's employment. 12
(2) A QWA does not operate to the exclusion of an exceptional matters 13
order, but prevails over an exceptional matters order to the extent of any 14
inconsistency. 15
(3) The relationship between a QWA and a certified agreement is as 16
follows-- 17
(a) a certified agreement that starts to operate after the QWA's 18
nominal expiry date prevails over the QWA to the extent of any 19
inconsistency; 20
(b) otherwise--the QWA operates to the exclusion of a certified 21
agreement that would otherwise apply to the employee's 22
employment. 23
binds employer's successor 24
QWA
92.(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 of the 27
whole or part of the business concerned. 28
s 93 89 s 96
Workplace Relations
(2) From the later time-- 1
(a) the new employer replaces the employer as a party to the QWA; 2
and 3
(b) the previous employer stops being a party to the QWA, to the 4
extent it relates to the whole or part of the business; and 5
(c) a reference in this part to the employer is a reference to the new 6
employer, and ceases to refer to the previous employer, to the 7
extent the context relates to the whole or part of the business. 8
(3) In this section-- 9
"successor" includes assignee and transmittee. 10
must not contravene QWA 11
Parties
93. A party to a QWA must not contravene the QWA. 12
for agreements 13
Conciliation
94. An enterprise commissioner has the conciliation powers for a matter 14
arising under this part that a commissioner would have under chapter 6 61 if 15
that chapter applied to conciliation of the matters instead of industrial 16
disputes. 17
action by party to QWA 18
Industrial
95. During the period of operation of a QWA before its nominal expiry 19
date, a party to the QWA must not engage in industrial action in relation to 20
the employment to which the QWA relates. 21
Division 7--Enforcement and remedies 22
for contravening this part 23
Penalties
96.(1) A magistrate may make an order imposing a penalty on a person 24
61 Chapter 6 (Industrial disputes)
s 97 90 s 98
Workplace Relations
who contravenes a penalty provision. 1
(2) The penalty can not be more than-- 2
(a) for a corporation--135 penalty units; or 3
(b) otherwise--27 penalty units. 4
(3) An application for an order relating to a QWA or ancillary document 5
may be made by-- 6
(a) a party to the QWA or ancillary document; or 7
(b) the employment advocate. 8
(4) In this section-- 9
"penalty provision" means section 78(3) or (4), 83, 93, 95, 103(1), 10
104(1), 105(1) or (2) or 106(1) or (2).62 11
for contravention of QWA 12
Damages
97.(1) A party to a QWA who suffers loss or damage because of a 13
contravention of the QWA by the other party may recover the amount of the 14
loss or damage in an Industrial Magistrates Court. 15
(2) The action must be brought within 6 years after the date on which the 16
cause of action arose. 17
to new employee for shortfall in entitlements 18
Compensation
98.(1) If a QWA for a new employee stops operating because of the 19
issue of a refusal notice and the amount worked out under paragraph (a) is 20
less than the amount worked out under paragraph (b), the employee is 21
62 Section 78 (Bargaining agents)
Section 83 (Employer's declaration must be accurate)
Section 93 (Parties must not contravene QWA)
Section 95 (Industrial action by party to QWA)
Section 103 (Employer not to dismiss etc. an employee for taking QWA
industrial action)
Section 104 (Hindering QWA negotiations)
Section 105 (Persons must not apply duress or make false statements in
connection with QWA etc.)
Section 106 (Employer must give copy of documents to employee)
s 99 91 s 100
Workplace Relations
entitled to recover the shortfall from the employer in an Industrial 1
Magistrates Court-- 2
(a) the total value of the entitlements to which the employee became 3
entitled under the QWA for the period while it was in operation; 4
(b) the total value of the entitlements to which the employee would 5
have been entitled for that period under this Act, if the QWA had 6
not been made, in relation to the employment to which the QWA 7
relates. 8
(2) If a QWA that has been approved for a new employee includes an 9
undertaking by the employer under section 8563 and the amount worked out 10
under paragraph (a) is less than the amount worked out under paragraph (b), 11
the employee is entitled to recover the shortfall from the employer in an 12
Industrial Magistrates Court-- 13
(a) the total value of the entitlements to which the employee became 14
entitled under the QWA for the period before it was approved; 15
(b) the total value of the entitlements to which the employee would 16
have been entitled for that period if the QWA as filed, had 17
included the employer's undertaking. 18
njunctions 19
I
99. An enterprise commissioner, on application by a party to a QWA, 20
may grant an injunction requiring a person not to contravene, or to stop 21
contravening, this part. 22
8--Limited immunity for industrial action 23
Division
of expressions 24
Meaning
100.(1) In this division-- 25
"QWA industrial action" means-- 26
(a) a strike by an employee to compel or induce the employer-- 27
63 Section 85 (Approving QWA)
s 101 92 s 102
Workplace Relations
(i) to make a QWA, on particular terms, with the employee; or 1
(ii) to make QWAs, on particular terms, with the employee and 2
other employees; or 3
(b) an employer locking out an employee to compel or induce the 4
employee to make a QWA, on particular terms, with the 5
employer. 6
(2) In this division, a reference to taking action includes a reference to-- 7
(a) omitting to do something; or 8
(b) bringing about a circumstance. 9
immunity conferred 10
Limited
101.(1) No action lies under any law for QWA industrial action unless 11
the action has involved or is likely to involve-- 12
(a) personal injury; or 13
(b) wilful or reckless destruction of, or damage to, property; or 14
(c) the unlawful taking, keeping or use of property. 15
(2) Subsection (1) does not prevent an action for defamation being 16
brought in relation to anything that happened during the industrial action. 17
(3) If an employer locks out an employee, the employer may refuse to 18
pay remuneration to the employee for the period of the lockout. 19
(4) An employer can not lock out an employee unless the continuity of 20
the employee's employment, for the purposes prescribed under a regulation, 21
is not affected by the lockout. 22
(5) In this section-- 23
"law" means a written or unwritten law, but does not include the State 24
Transport Act 1938. 25
conditional on giving notice 26
Immunity
102. The immunity conferred by section 10164 for QWA industrial action 27
64 Section 101 (Limited immunity conferred)
s 103 93 s 103
Workplace Relations
does not apply unless at least 3 working days notice of the intention to take 1
the action was given to the other party. 2
not to dismiss etc. an employee for taking QWA industrial 3
Employer
action 4
103.(1) An employer must not-- 5
(a) dismiss an employee, injure an employee in his or her 6
employment or change an employee's position to the employee's 7
prejudice; or 8
(b) threaten to dismiss an employee, injure an employee in his or her 9
employment or change an employee's position to the employee's 10
prejudice; 11
wholly or partly because the employee is proposing to engage, is engaging 12
or has engaged, in QWA industrial action after giving notice under 13
section 102. 14
(2) Subsection (1) does not apply to any of the following actions taken by 15
the employer-- 16
(a) standing-down the employee; 17
(b) refusing to pay the employee if, under the common law, the 18
employer is permitted to do so because the employee has not 19
performed work as directed; 20
(c) action of the employer that is itself QWA industrial action to 21
which section 10165 applies. 22
(3) In a proceeding against an employer under section 9666 for an alleged 23
contravention of subsection (1), it is to be presumed, unless the employer 24
proves otherwise, that the alleged conduct of the employer was carried out 25
wholly or partly because the employee was proposing to engage, was 26
engaging or had engaged, in QWA industrial action. 27
65 Section 101 (Limited immunity conferred)
66 Section 96 (Penalties for contravening this part)
s 104 94 s 106
Workplace Relations
Division 9--General 1
QWA negotiations 2
Hindering
104.(1) A person who is not a party to negotiations for a QWA must not 3
use threats or intimidation with the intention of hindering the negotiations or 4
the making of the QWA. 5
(2) This section does not apply to conduct by or for an employee 6
organisation for the purpose of negotiating a certified agreement, if the 7
conduct is authorised by another provision of this Act. 8
(3) In this section-- 9
"party to negotiations" includes a bargaining agent. 10
must not apply duress or make false statements in connection 11
Persons
with QWA etc. 12
105.(1) A person must not apply duress to an employer or employee in 13
connection with a QWA or ancillary document. 14
(2) A person must not knowingly make a false or misleading statement 15
to someone else with the intention of persuading the other person to make, 16
or not to make, a QWA or ancillary document. 17
must give copy of documents to employee 18
Employer
106.(1) As soon as practicable after receiving any of the following 19
documents from an enterprise commissioner or the registrar or employment 20
advocate, the employer must give a copy of it to the employee-- 21
(a) a filing receipt; 22
(b) an approval notice or refusal notice; 23
(c) a QWA or ancillary document, as approved. 24
(2) The employer must give the employee any other document prescribed 25
under a regulation, within the period required under the regulation. 26
s 107 95 s 109
Workplace Relations
not permitted 1
Intervention
107. A person other than-- 2
(a) a party to a QWA; or 3
(b) a party's bargaining agent; or 4
(c) the Minister; 5
must not be allowed to make submissions, or be heard, in relation to the 6
filing, approval, amendment or termination of a QWA. 7
to be in private 8
Hearings
108. A hearing by an enterprise commissioner for this part must be held 9
in private. 10
of QWA parties not to be disclosed 11
Identity
109.(1) A person (the "entrusted person") must not disclose protected 12
information that the entrusted person knows, or has reasonable grounds to 13
believe, will identify another person (the "QWA party") as being, or 14
having been, a party to a QWA. 15
Maximum penalty--6 months imprisonment. 16
(2) Subsection (1) does not apply if the disclosure is-- 17
(a) made by the entrusted person in the course of performing official 18
duties as an officer of the court, commission or department; or 19
(b) authorised under a regulation; or 20
(c) required or permitted by another Act; or 21
(d) authorised in writing by the QWA party. 22
(3) For deciding the burden of proof in a proceeding for an offence 23
against subsection (1), the exceptions in subsection (2) are taken to be part 24
of the description of the offence. 25
(4) In this section-- 26
"protected information" means information that was acquired by the 27
entrusted person-- 28
s 110 96 s 113
Workplace Relations
(a) in the course of performing official duties as an officer of the 1
court, commission or department; or 2
(b) from an officer of the court, commission or department who 3
disclosed the information as authorised under a regulation. 4
commissioner not to publish QWA decision or 5
Enterprise
interpretation 6
110. An enterprise commissioner must not publish a decision or 7
interpretation about a QWA or ancillary document, in a way that discloses 8
the identity of either party to the QWA or document. 9
and advice about development in making QWAs 10
Reports
111.(1) The chief executive, on the Minister's request, must prepare and 11
give to the Minister a report about developments in the State in bargaining 12
for the making of QWAs. 13
(2) To enable the chief executive to prepare the report and generally to 14
advise the Minister, the registrar must allow access to approved QWAs and 15
ancillary documents to-- 16
(a) the chief executive; or 17
(b) the chief executive's agent. 18
(3) The report must not identify either of the parties to a QWA, except 19
with the consent of both parties. 20
of a QWA 21
Interpretation
112. An enterprise commissioner may give an interpretation of a QWA 22
on application by-- 23
(a) a party to it; or 24
(b) the employment advocate. 25
26
Evidence
113.(1) The registrar may give a certified copy of an approved QWA or 27
s 114 97 s 115
Workplace Relations
ancillary document to a person who is or was a party to the QWA or 1
ancillary document. 2
(2) The registrar may issue a certificate stating-- 3
(a) specified QWAs or ancillary documents are the only QWAs or 4
ancillary documents that were filed, before a specified date, in 5
relation to a specified employer and employee; or 6
(b) a copy of a specified approved QWA or ancillary document was 7
issued on a specified day; or 8
(c) a filing receipt, approval notice or refusal notice was issued for a 9
specified QWA or ancillary document on a specified day. 10
(3) The certificate may be given only to a person who is or was a party to 11
each of the documents to which the certificate relates. 12
(4) In all courts and a proceeding-- 13
(a) a certified copy of an approved QWA or ancillary document is 14
evidence of the QWA or ancillary document; and 15
(b) a certificate issued by the registrar under subsection (2) is 16
evidence of the matters stated in the certificate. 17
(5) A document that purports to be a certified copy, or certificate, 18
mentioned in subsection (4) is taken to be the copy or certificate, unless the 19
contrary is proved. 20
for corporation 21
Signature
114. A QWA or ancillary document may be signed for a corporation by 22
a properly authorised officer of the corporation and need not be made under 23
the corporation's seal. 24
ART 3--NODISADVANTAGE TEST 25
P
for pt 3 26
Definitions
115. In this part-- 27
s 115 98 s 115
Workplace Relations
"agreement" means-- 1
(a) a certified agreement; or 2
(b) a QWA. 3
"approved apprenticeship" means an apprenticeship approved by an 4
approving authority for section 119.67 5
"approved traineeship" means a traineeship approved by an approving 6
authority for section 118,68 other than-- 7
(a) a traineeship under the Training Wage Award--State; or 8
(b) a Career Start traineeship; or 9
(c) an Australian Traineeship System traineeship; or 10
(d) a National Training Wage traineeship. 11
"approving authority" means the Vocational Education, Training and 12
Employment Commission established under the Vocational 13
Education, Training and Employment Act 1991. 14
"award"-- 15
(a) includes an award under the Commonwealth Act, part VIE; but 16
(b) does not include an exceptional matters order. 17
"designated award", in relation to a person to whom an agreement will 18
apply, means an award that the commission under section 120,69 or an 19
enterprise commissioner under section 121,70 has decided is 20
appropriate for deciding whether a certified agreement or QWA passes 21
the no-disadvantage test. 22
"initial day" means-- 23
(a) for a QWA--the day on which it was approved; or 24
(b) for a certified agreement--the day on which it was certified. 25
"relevant award", in relation to a person to whom an agreement will 26
67 Section 119 (Special case--employee eligible for supported wage system)
68 Section 118 (Special case--employee undertaking approved traineeship)
69 Section 120 (Determination of designated awards for certified agreement)
70 Section 121 (Determination of designated awards for QWA)
s 116 99 s 116
Workplace Relations
apply, means an award-- 1
(a) regulating any employment condition of persons engaged in the 2
same kind of work as that of persons under the agreement; and 3
(b) that, immediately before the initial day of the agreement, binds the 4
person's employer. 5
does an agreement pass the no-disadvantage test 6
When
116.(1) An agreement passes the no-disadvantage test if it does not 7
disadvantage employees in relation to their employment conditions. 8
(2) Subject to sections 117 to 119,71 an agreement disadvantages 9
employees in relation to their employment conditions only if-- 10
(a) for a certified agreement--its certification would result, on 11
balance, in a reduction in the employees' overall employment 12
conditions-- 13
(i) under a relevant award or designated award; and 14
(ii) under any other law of the Commonwealth or a State that a 15
commissioner considers relevant; or 16
(b) for a QWA, when there is a certified agreement with a QWA 17
provision--its approval would result, on balance, in a reduction in 18
the employee's overall employment conditions-- 19
(i) under the relevant or designated award; and 20
(ii) under any other law of the Commonwealth or a State that an 21
enterprise commissioner considers relevant; or 22
(c) for a QWA, when there is a certified agreement without a QWA 23
provision--its approval would result, on balance, in a reduction in 24
the employee's overall employment conditions-- 25
(i) under the certified agreement; and 26
(ii) under any other law of the Commonwealth or a State that an 27
71 Section 117 (Special case--employee eligible for supported wage system)
Section 118 (Special case--employee undertaking approved traineeship)
Section 119 (Special case--employee undertaking approved apprenticeship)
s 117 100 s 118
Workplace Relations
enterprise commissioner considers relevant; or 1
(d) for a QWA, when there is no certified agreement--its approval 2
would result, on balance, in a reduction in the employee's overall 3
employment conditions-- 4
(i) under a relevant award or designated award; and 5
(ii) under any other law of the Commonwealth or a State that an 6
enterprise commissioner considers relevant. 7
(3) In this section-- 8
"certified agreement" means a certified agreement that, immediately 9
before the initial day of the QWA, binds the employer. 10
"QWA provision" of a certified agreement means a provision that 11
expressly allows a subsequent QWA-- 12
(a) to operate to the exclusion of the certified agreement; or 13
(b) to prevail over the certified agreement to the extent of any 14
inconsistency. 15
case--employee eligible for supported wage system 16
Special
117.(1) Subsection (2) applies if an agreement provides for the payment 17
of wages to an employee who is eligible for the supported wage system at a 18
rate not less than the rate set in accordance with that system for the 19
employee. 20
(2) The approval or certification of the agreement is not to be taken to 21
result in a reduction of the employee's wages. 22
case--employee undertaking approved traineeship 23
Special
118.(1) Subsection (2) applies if an agreement provides for the payment 24
of wages to an employee undertaking an approved traineeship at a rate that 25
is not less than the appropriate percentage of the rate (the "benchmark 26
rate") that would be applicable to the employee under the relevant award or 27
designated award if-- 28
(a) that award applied to the employee; and 29
(b) the employee were not undertaking the traineeship. 30
s 119 101 s 119
Workplace Relations
(2) The approval or certification of the agreement is not to be taken to 1
result in a reduction of the employee's wages. 2
(3) For subsection (1), the appropriate percentage of the benchmark rate 3
is the percentage of that rate determined in writing by the approving 4
authority having regard to the reduction in productive time of an employee 5
undertaking the training due to time spent in training. 6
(4) If the agreement adopts, as the qualification for a wage level, a 7
criterion determined by the approving authority ("determined criterion") 8
instead of the criterion applying under the relevant award or designated 9
award ("award criterion"), the award is taken, for this section, to have 10
effect as if the determined criterion were substituted for the award criterion. 11
case--employee undertaking approved apprenticeship 12
Special
119.(1) This section applies if-- 13
(a) an agreement provides for the payment of wages to an employee 14
undertaking an approved apprenticeship in a particular trade, 15
occupation or kind of work; and 16
(b) there is a relevant award, designated award or order regulating the 17
payment of wages to employees undertaking an apprenticeship (a 18
"benchmark apprenticeship") in the same or a similar trade, 19
occupation or kind of work. 20
(2) The approval or certification of the agreement is to be taken to result 21
in a reduction of the employee's wages only if the agreement provides for 22
the payment of wages to employees undertaking the approved 23
apprenticeship at a rate that is less than the rate applicable under the relevant 24
award, designated award or order to employees undertaking the benchmark 25
apprenticeship adjusted (if necessary) under subsection (3). 26
(3) For subsection (2), the rate applicable to an employee undertaking the 27
benchmark apprenticeship is to be adjusted to take into account the 28
proportionate difference, as determined by the approving authority, between 29
the productive time of an employee under the approved apprenticeship and 30
the productive time of an employee under the benchmark apprenticeship. 31
(4) If the agreement adopts, as the qualification for a wage level, a 32
criterion determined by the approving authority ("determined criterion") 33
instead of the criterion applying under the relevant award, designated award 34
s 120 102 s 121
Workplace Relations
or order ("award criterion"), the award is taken, for this section, to have 1
effect as if the determined criterion were substituted for the award criterion. 2
of designated awards for certified agreement 3
Determination
120.(1) This section applies if-- 4
(a) an employer or organisation of employees proposes to make a 5
certified agreement; and 6
(b) there is no relevant award in relation to some or all of the persons 7
to whom the agreement will apply. 8
(2) The employer or organisation may apply to the commission for a 9
determination under subsection (3). 10
(3) On application, the commission must determine that an award 11
(regulating employment conditions of employees engaged in a similar kind 12
of work as the person under the agreement) is appropriate for deciding 13
whether the agreement passes the no-disadvantage test. 14
(4) The commission must inform the employer or organisation in writing 15
of its determination. 16
of designated awards for QWA 17
Determination
121.(1) This section applies if-- 18
(a) an employer proposes to make a QWA with a person; and 19
(b) there is no relevant award for the person. 20
(2) The employer must apply to an enterprise commissioner for a 21
determination under subsection (3). 22
(3) On application, the enterprise commissioner must determine that an 23
award (regulating employment conditions of employees engaged in a 24
similar kind of work as the person under the QWA) is appropriate for 25
deciding whether the QWA passes the no-disadvantage test. 26
(4) The enterprise commissioner must inform the employer in writing of 27
the enterprise commissioner's determination. 28
s 122 103 s 123
Workplace Relations
HAPTER 3--AWARDS 1
C
PART 1--OBJECTS 2
of ch 3 3
Objects
122. The objects of this chapter are to ensure-- 4
(a) wages and employment conditions are protected by a system of 5
enforceable awards established and maintained by the 6
commission; and 7
(b) awards act as a safety net of fair minimum wages and 8
employment conditions; and 9
(c) awards are simplified and suited to the efficient performance of 10
work according to the needs of particular workplaces or 11
enterprises; and 12
(d) the commission's functions and powers in relation to making and 13
amending awards are performed and exercised in a way that 14
encourages the making of agreements between employers and 15
employees at the workplace or enterprise level. 16
ART 2--COMMISSION'S FUNCTIONS 17
P
GENERALLY 18
of commission's functions under this chapter 19
Performance
123.(1) The commission must perform its functions under this chapter in 20
a way that furthers the objects of the Act and, in particular, the objects of 21
this chapter. 22
(2) In performing the functions, the commission must ensure a safety net 23
of fair minimum wages and employment conditions is established, having 24
regard to-- 25
(a) the need to provide fair minimum standards for employees in the 26
s 124 104 s 124
Workplace Relations
context of living standards generally prevailing in the community; 1
and 2
(b) economic factors, including levels of productivity and inflation, 3
and the desirability of attaining a high level of employment; and 4
(c) when adjusting the safety net, the needs of the low paid. 5
(3) In performing the functions, the commission must have regard to-- 6
(a) the need for changes to wage relativities between awards to be 7
based on skill, responsibility and the conditions under which 8
work is performed; and 9
(b) the need to support training arrangements through appropriate 10
wage provisions for apprentices and trainees; and 11
(c) the need to provide a supported wage system for people with 12
disabilities; and 13
(d) the need to apply the principle of equal remuneration for work of 14
equal value without discrimination based on sex; and 15
(e) the need to prevent and eliminate discrimination. 16
(4) Changes necessary to keep wages and employment conditions at a 17
relevant level may be made on condition that relevant parties comply with 18
principles established by the commission. 19
automatic flow-on of certain agreements 20
No
124. The commission can not include terms in an award that are based on 21
a certified agreement, unless it is satisfied that including the terms would 22
not-- 23
(a) be inconsistent with principles established by a full bench that 24
apply for deciding wages and employment conditions; and 25
(b) be otherwise contrary to the public interest. 26
s 125 105 s 126
Workplace Relations
ART 3--FORM AND APPLICATION 1
P
effect and term of award 2
Form,
125.(1) An award-- 3
(a) must be in a form decided by the commission; and 4
(b) takes effect and has the force of law throughout the State and 5
without limit of time, except as otherwise prescribed by 6
subsection (2). 7
(2) An award may state that it is in force-- 8
(a) in a stated locality; or 9
(b) for a stated period; or 10
(c) in relation to 1 or more stated employers; or 11
(d) in relation to 1 or more named establishments or operations of 12
1 or more stated employers. 13
(3) An award stated to be limited in a way mentioned in subsection (2) 14
has effect only to the extent that it provides. 15
ersons bound by award 16
P
126.(1) An award binds-- 17
(a) all parties to the industrial cause in which the award is made who 18
appear or are represented before the commission; and 19
(b) all parties who have been called to appear before the commission 20
as parties to the industrial cause in which the award is made, 21
whether or not they appear or are represented, unless the 22
commission considers they were improperly called as parties; and 23
(c) all organisations concerned with the calling to which the award 24
applies; and 25
(d) all members of organisations bound by the award; and 26
(e) all employers and employees, in a locality where the award 27
applies, who are engaged in the calling to which the award 28
applies; and 29
s 127 106 s 127
Workplace Relations
(f) if the award purports to apply only to a particular employer or 1
employers, or named establishments or operations of a particular 2
employer or employers--all employees of the employer or the 3
employers or of the employer or employers in the named 4
establishments or operations. 5
(2) This section applies subject to-- 6
(a) all exemptions ordered by the commission under section 136;72 7
and 8
(b) section 352 and Industrial Organisations Act 1996, section 192.73 9
PART 4--COMMISSION'S POWERS 10
amending and repealing awards 11
Making,
127.(1) The commission may make, amend or repeal an award. 12
(2) However, in doing so the commission is subject to section 128. 13
(3) The commission may act under subsection (1) of its own initiative or 14
on application by-- 15
(a) the Minister; or 16
(b) an organisation; or 17
(c) an employer; or 18
(d) a person who satisfies the commission that the person is not an 19
officer of, or acting for, an eligible association. 20
(4) The commission may refrain from hearing, further hearing, or 21
deciding an application to amend an award while it-- 22
(a) considers that, in all the circumstances, the parties concerned 23
should try to negotiate a certified agreement or QWA to deal with 24
72 Section 136 (Exemptions)
73 Section 352 (Remedies on show cause) and Industrial Organisations Act 1996,
section 192 (Consequences of cancellation)
s 128 107 s 128
Workplace Relations
the subject matter of the proposed amendment; and 1
(b) is satisfied there is a reasonable prospect of the parties making 2
either of the agreements. 3
award matters 4
Allowable
128.(1) In making or amending an award, the commission may only deal 5
with the following matters ("allowable award matters")-- 6
(a) classifications of employees and skill-based career paths; 7
(b) ordinary time hours of work and the times within which they are 8
performed, rest breaks, notice periods and variations to working 9
hours; 10
(c) wage rates generally (including hourly rates and annual salaries), 11
wage rates for juniors, apprentices or trainees, and wage rates for 12
employees under the supported wage system; 13
(d) piece rates, tallies and bonuses; 14
(e) annual leave and leave loadings; 15
(f) long service leave; 16
(g) personal and carer's leave, including sick leave, family leave, 17
bereavement leave, compassionate leave, cultural leave and other 18
similar forms of leave; 19
(h) parental leave and adoption leave; 20
(i) compensation for public holidays; 21
(j) allowances; 22
(k) loadings for working overtime or for casual or shift work; 23
(l) penalty rates; 24
(m) redundancy pay; 25
(n) notice of termination; 26
(o) stand-down provisions; 27
(p) dispute resolution procedures; 28
(q) jury service; 29
s 128 108 s 128
Workplace Relations
(r) type of employment, including full-time employment, casual 1
employment, regular part-time employment and shift work; 2
(s) occupational superannuation; 3
(t) wages and conditions for outworkers, but only to the extent 4
necessary to ensure that their overall wages and employment 5
conditions are fair and reasonable in comparison with the wages 6
and employment conditions specified in a relevant award or 7
awards for employees who perform the same kind of work at an 8
employer's place of business. 9
(2) The commission may make an award for an allowable award matter 10
that-- 11
(a) revokes or amends a decision; or 12
(b) abrogates or amends labour contracts made before or after the 13
commencement of this Act, subject to the conditions and 14
exemptions the commission considers appropriate; or 15
(c) gives the retrospective effect the commission considers 16
appropriate, or that is consented to by the parties, to the whole or 17
part of an award, but so that, except with the parties' consent, the 18
retrospective effect is not made to operate before the day when the 19
commission first took cognisance of the matter; or 20
(d) directs a copy of any award be exhibited by the employer in a 21
conspicuous and convenient place on the premises of an employer 22
bound by the award. 23
(3) The commission may include in an award provisions that are-- 24
(a) incidental to the matters in subsection (1); and 25
(b) necessary for the effective operation of the award. 26
(4) This section does not prevent the commission from including a 27
model anti-discrimination clause in an award. 28
(5) In this section-- 29
"outworker" means an employee who, for the employer's business, 30
performs work at private residential premises or at other premises that 31
are not the employer's place of business. 32
s 129 109 s 129
Workplace Relations
on commission's powers for awards 1
Limitation
129.(1) The commission's power to make or amend an award, or to 2
prevent or settle by arbitration an industrial dispute, dealing with an 3
allowable award matter is limited to making a minimum rates award. 4
(2) The commission's power to make or amend an award in relation to 5
matters covered by section 128(1)(r) does not include power-- 6
(a) to limit the number or proportion of employees an employer may 7
employ in a particular kind of employment; or 8
(b) to set maximum or minimum hours of work for regular part-time 9
employees. 10
(3) Subsection (2)(b) does not prevent the commission from including in 11
an award provisions that-- 12
(a) set a minimum number of consecutive hours that an employer 13
may require a regular part-time employee to work; or 14
(b) facilitate a regular pattern in the hours worked by regular part-time 15
employees. 16
(4) The commission does not have power to include terms in an award 17
that require or permit, or have the effect of requiring or permitting, conduct 18
that would contravene the Industrial Organisations Act 1996, part 14.74 19
(5) In fixing wage rates payable to employees in a calling, the 20
commission must fix the rates on the basis that a man and a woman 21
employed by the same employer must receive equal remuneration for work 22
of equal value without any discrimination on the ground of sex. 23
(6) The exercise of the commission's jurisdiction for persons under 24
21 years is subject to the Vocational Education, Training and Employment 25
Act 1991, section 78.75 26
(7) Despite any other provision of this Act, wage rates fixed by the 27
commission for persons under 21 years in a calling who are not within the 28
application of the Vocational Education, Training and Employment Act 29
1991, may be fixed on a progressive scale based on the wage rates payable 30
74 Industrial Organisations Act 1996, part 14 (Freedom of association)
75 Vocational Education, Training and Employment Act 1991, section 78
(Restrictions on employing persons under 21 in an apprenticeship calling)
s 130 110 s 130
Workplace Relations
to employees 21 years or over in the same calling. 1
(8) In making an award that fixes the wage rates, the commission must 2
consider the age and experience of the persons under 21 years. 3
matters orders 4
Exceptional
130.(1) Despite section 128(1),76 the commission may make an order 5
about a matter (the "exceptional matter") if the commission is satisfied-- 6
(a) a party has made a genuine attempt to reach agreement on the 7
exceptional matter; and 8
(b) there is no reasonable prospect of agreement being reached on the 9
exceptional matter by conciliation, or further conciliation, by the 10
commission; and 11
(c) it is appropriate to settle the exceptional matter by arbitration; and 12
(d) the issues involved in the exceptional matter are exceptional 13
issues; and 14
(e) a harsh or unjust outcome may result if the order were not to 15
include the exceptional matter. 16
(2) The commission may make an exceptional matters order only if 17
satisfied that making the order-- 18
(a) is in the public interest; and 19
(b) consistent with the objects of this Act. 20
(3) The commission may make an exceptional matters order that would 21
apply to more than a single business only if satisfied the order is an 22
appropriate way of settling the matter in dispute. 23
(4) An exceptional matters order must be made by a full bench, unless 24
the order relates to a single business within the meaning of section 12.77 25
(5) An exceptional matters order must relate only to a single matter. 26
(6) An exceptional matters order may be enforced as if it were an award. 27
76 Section 128 (Allowable award matters)
77 Section 12 (Single business and single employer)
s 131 111 s 132
Workplace Relations
(7) An exceptional matters order stops being in force 2 years after it is 1
made and can not be extended. 2
(8) Section 12978 applies to the commission as if the order were an 3
award. 4
award matters to be dealt with by full bench 5
Allowable
131.(1) A full bench may establish principles about the making or 6
amending of awards for an allowable award matter. 7
(2) After the principles have been established, the commission's power 8
to make or amend an award is exercisable only by a full bench, unless the 9
award's contents-- 10
(a) give effect to decisions of a full bench made after the 11
commencement of this section; or 12
(b) are consistent with principles established by a full bench after the 13
commencement of this section. 14
rulings 15
General
132.(1) A full bench may make general rulings about an allowable award 16
matter to avoid a multiplication of inquiries into the same matter. 17
(2) Before entering on making the ruling, the full bench must give-- 18
(a) reasonable notice, in the way it considers appropriate, of its 19
intention to make the ruling; and 20
(b) an opportunity to all persons interested in the subject of the 21
proposed general ruling to be heard. 22
(3) A ruling-- 23
(a) must specify a date (the "specified date") on and from which it 24
is to have effect; and 25
(b) has effect as a decision of the full bench on and from the specified 26
date. 27
78 Section 129 (Limitation on commission's powers for awards)
s 133 112 s 133
Workplace Relations
(4) A ruling may exclude from the operation of any of its provisions-- 1
(a) a class of employer or employee; or 2
(b) an award or part of an award. 3
(5) As soon as practicable after making a ruling, the registrar must 4
publish notice of the ruling and the specified date in the industrial gazette. 5
(6) The notice, on and from the specified date, replaces a notice of a 6
ruling on the same subject matter previously published. 7
(7) The ruling notified continues in force until the date immediately 8
before the specified date included in the next ruling on the same subject 9
matter. 10
(8) On a ruling (other than under subsection (4)) taking effect while an 11
award is in force, on and from the specified date-- 12
(a) the award is taken to be amended to accord with the ruling; and 13
(b) the amendment has effect as an award. 14
(9) The registrar, on application under the rules of court, or of the 15
registrar's own initiative, may amend an award taken to be amended under 16
subsection (8) as the registrar considers appropriate, to accord with the 17
ruling. 18
(10) The registrar's action is subject to appeal to the full bench. 19
ART 5--OTHER REQUIREMENTS 20
P
of enterprise flexibility provisions in awards 21
Inclusion
133.(1) This section applies when the commission makes or amends an 22
award. 23
(2) If it considers it appropriate, the commission must include in the 24
award a provision establishing a process for negotiating agreements at the 25
workplace or enterprise level about how the award should be amended to 26
make the workplace or enterprise operate more efficiently according to its 27
particular needs. 28
s 134 113 s 134
Workplace Relations
(3) If an application is made to amend an award to give effect to an 1
agreement made under subsection (2), the commission can not amend the 2
award unless it is satisfied the amendment-- 3
(a) would deal only with allowable award matters; and 4
(b) would result in a minimum rates award; and 5
(c) if it included an amendment to wage rates specified in the 6
award--would provide for minimum wage rates consistent with 7
sections 122 and 123.79 8
(4) An employee organisation may be heard on the application if, and 9
only if, it-- 10
(a) is a party to the award; and 11
(b) has a member whose employment would be regulated by the 12
amendment. 13
(5) The commission must not refuse to amend the award merely because 14
an organisation refuses to agree to the amendment, if the commission is 15
satisfied the refusal is unreasonable. 16
requirements about structure and content etc. of awards and 17
Some
orders 18
134.(1) This section applies if the commission makes-- 19
(a) an award; or 20
(b) an order affecting an award. 21
(2) The commission, if it considers it appropriate, must ensure the award 22
or order does not-- 23
(a) include matters of detail or process that are more appropriately 24
dealt with by agreement at the workplace or enterprise level; or 25
(b) prescribe work practices or procedures that restrict or hinder the 26
efficient performance of work; or 27
(c) contain provisions that have the effect of restricting or hindering 28
79 Sections 122 (Objects of ch 3) and 123 (Performance of commission's functions
under this chapter)
s 135 114 s 135
Workplace Relations
productivity, having regard to fairness to employees. 1
(3) The commission must ensure the award or order-- 2
(a) whenever possible, contains facilitative provisions that allow 3
agreement at the workplace or enterprise level, between 4
employers and employees (including individual employees), on 5
how the award provisions are to apply; and 6
(b) whenever possible, contains provisions enabling the employment 7
of regular part-time employees; and 8
(c) is stated in plain English and is easy to understand in structure 9
and content; and 10
(d) does not contain provisions that are obsolete or need updating; 11
and 12
(e) whenever possible, provides support to training arrangements 13
through appropriate apprentice and trainee wages and a supported 14
wage system for people with disabilities; and 15
(f) does not contain discriminatory provisions. 16
resolution procedures 17
Dispute
135.(1) An award must provide for a dispute resolution procedure. 18
(2) The form of the procedure is to be agreed on by the parties to the 19
award. 20
(3) However, if the parties can not agree, the commission must insert an 21
appropriate procedure in the award. 22
(4) Without limiting subsection (1), in a procedure-- 23
(a) matters to be dealt with must include-- 24
(i) all industrial matters; and 25
(ii) other matters that the parties agree on; and 26
(b) a dispute must be dealt with initially as close to its source as 27
possible, with graduated steps provided for further discussions 28
and resolution at higher levels of authority; and 29
(c) reasonable time limits are to be allowed for discussion at each 30
s 136 115 s 136
Workplace Relations
level of authority; and 1
(d) while a procedure is being followed, normal work must continue, 2
unless there is a genuine health or safety issue; and 3
(e) the state or condition existing before the dispute emerged must 4
continue while a procedure is being followed; and 5
(f) a dispute may be referred, by consent of the parties, to an 6
independent person for resolution; and 7
(g) matters that can not be resolved by the parties to the dispute must 8
be referred to the commission or a magistrate as required by 9
section 239.80 10
(5) In this section-- 11
"dispute" includes grievance. 12
PART 6--EXEMPTIONS 13
14
Exemptions
136.(1) The commission may, of its own initiative or on application by 15
an organisation or employer, by the order by which it makes an award, or 16
by its later order, exempt from the application of the award-- 17
(a) an employer or class of employer, or employee or class of 18
employee, in a locality and in the calling to which the award 19
applies; and 20
(b) a person who is engaged, whether as employer or employee, in 21
the locality and calling, while the award remains in force. 22
(2) While an exemption exists, the award does not bind the employer, 23
employee, class, or person, according to the exemption. 24
80 Section 239 (Notice of industrial dispute)
s 137 116 s 139
Workplace Relations
ART 7--GENERAL 1
P
of awards 2
Enforceability
137. Action can not be commenced to enforce an award until 21 days 3
after the date it is published in the industrial gazette. 4
of appeals on awards 5
Effect
138. The commission must immediately amend an award to give effect 6
to a decision, affecting the award, of-- 7
(a) the court on appeal from a decision of the commission or on a 8
case stated by the commission; or 9
(b) a full bench on appeal from a single commissioner. 10
between awards and contracts 11
Inconsistency
139.(1) To the extent of any inconsistency, an award prevails over a 12
contract of service that is-- 13
(a) in force when the award becomes enforceable; or 14
(b) made while the award continues in force. 15
(2) The contract is to be interpreted, and takes effect, as if it were 16
amended to the extent necessary to make it conform to the award. 17
(3) However, no inconsistency arises merely because the contract 18
provides for employment conditions more favourable to the employee than 19
the award. 20
s 140 117 s 144
Workplace Relations
HAPTER 4--GENERAL EMPLOYMENT 1
C
CONDITIONS 2
PART 1--MINIMUM WAGES 3
of pt 1 4
Object
140. The object of this part is to give effect to the Minimum Wages 5
Convention. 6
of expressions 7
Meaning
141. If an expression used in this part is also used in the Minimum 8
Wages Convention, it has the same meaning as in the Convention. 9
setting minimum wages 10
Orders
142. The commission may make an order setting-- 11
(a) the same minimum wage for all employees in a stated group; or 12
(b) different minimum wages for different categories of employees in 13
a stated group. 14
only on application 15
Orders
143. The commission may make an order under this part only on an 16
application by-- 17
(a) an employee to be covered by the order; or 18
(b) an organisation whose rules entitle it to represent the industrial 19
interests of employees to be covered by the order. 20
commission may make order 21
When
144.(1) The commission must, and may only, make an order if 22
satisfied-- 23
s 144 118 s 144
Workplace Relations
(a) coverage by a system of minimum wages is appropriate, given 1
the employment conditions of the group of employees to be 2
covered by the order; and 3
(b) the order will operate for at least some of the employees in the 4
stated group, having regard to employees ineligible under 5
subsection (3). 6
(2) The order must state which of the group's employees are excluded 7
from its operation because they are ineligible. 8
(3) An employee is ineligible only if-- 9
(a) minimum wages for the employee are set by an industrial 10
instrument; or 11
(b) proceedings have been commenced under chapter 2, parts 1 to 381 12
and chapter 382 for the setting or adjustment of minimum wages 13
for the employee. 14
(4) Before deciding which group an order should cover, and whether it is 15
satisfied under subsection (1)(a), the commission must-- 16
(a) give the following organisations an opportunity to express their 17
views-- 18
(i) an organisation whose rules entitle it to represent the 19
industrial interests of any of the employees concerned; 20
(ii) an organisation whose rules entitle it to represent the 21
industrial interests of employers of the employees; 22
(iii) another organisation representing employers of the 23
employees; and 24
(b) take the views into account. 25
(5) Before making an order, the commission must give each employer of 26
employees in the group to be covered by the order an opportunity, as 27
prescribed under a regulation, to be heard about the making of the order. 28
81 Chapter 2 (Agreements), part 1 (Certified Agreements), part 2 (Queensland
workplace agreements), part 3 (No-disadvantage test)
82 Chapter 3 (Awards)
s 145 119 s 147
Workplace Relations
to be considered when setting minimum wages 1
Matters
145. When setting minimum wages under this part, the commission 2
must consider-- 3
(a) the principles it would apply when setting minimum wages under 4
chapter 3;83 and 5
(b) the needs of workers and their families, taking into account the 6
general level of wages, the cost of living, social security benefits 7
and the relative living standards of other social groups; and 8
(c) economic factors, including, for example, the requirements of 9
economic development, levels of productivity and the desirability 10
of reaching and keeping a high level of employment and a low 11
inflation rate. 12
does not limit other rights 13
Part
146. This part does not limit any right a person or organisation may 14
otherwise have to establish minimum wages. 15
16
Orders
147.(1) This section applies to an order of the commission under this 17
part. 18
(2) An order must be written. 19
(3) An order takes effect from the date of the order or a later stated date. 20
(4) An order is enforceable in the same way as an award. 21
(5) The commission may amend or revoke an order only on application 22
by any of the following persons (whether or not named or described in the 23
order)-- 24
(a) an employer, or representative of an employer, covered by the 25
order; 26
(b) an employee, or representative of an employee, covered by the 27
order. 28
83 Chapter 3 (Awards)
s 148 120 s 151
Workplace Relations
industrial instruments or orders 1
Inconsistent
148. An industrial instrument or commission order that is inconsistent 2
with an order under this part does not apply to the extent the inconsistency 3
detrimentally affects the rights of the employees concerned. 4
ART 2--EQUAL REMUNERATION FOR WORK OF 5
P
EQUAL VALUE 6
of part 7
Object
149. The object of this part is to give effect to-- 8
(a) the Anti-Discrimination Conventions; and 9
(b) the Equal Remuneration Recommendation; and 10
(c) the Discrimination (Employment and Occupation) 11
Recommendation. 12
of expressions 13
Meaning
150.(1) In this part-- 14
"equal remuneration for work of equal value" means equal 15
remuneration for men and women workers for work of equal value. 16
(2) If an expression used in this part is also used in the Equal 17
Remuneration Convention, it has the same meaning as in the Convention. 18
requiring equal remuneration 19
Orders
151.(1) The commission may make any order it considers appropriate to 20
ensure employees covered by the order will receive equal remuneration for 21
work of equal value. 22
(2) An order may provide for an increase in remuneration rates, including 23
minimum rates. 24
s 152 121 s 155
Workplace Relations
only on application 1
Orders
152. The commission may make an order under this part only on 2
application by-- 3
(a) an employee to be covered by the order; or 4
(b) an organisation whose rules entitle it to represent the industrial 5
interests of employees to be covered by the order; or 6
(c) the Anti-Discrimination Commissioner. 7
commission must and may only make order 8
When
153. The commission must, and may only, make an order if-- 9
(a) it is satisfied the employees to be covered by the order do not 10
receive equal remuneration for work of equal value; and 11
(b) the order can reasonably be regarded as appropriate and as giving 12
effect to-- 13
(i) 1 or more of the Anti-Discrimination Conventions; or 14
(ii) the Equal Remuneration Recommendation; or 15
(iii) the Discrimination (Employment and Occupation) 16
Recommendation. 17
or progressive introduction of equal remuneration 18
Immediate
154. The order may introduce equal remuneration for work of equal 19
value-- 20
(a) immediately; or 21
(b) progressively, in specified stages. 22
not to reduce remuneration 23
Employer
155.(1) An employer must not reduce an employee's remuneration 24
because an application or order has been made under this part. 25
(2) If an employer purports to do so, the reduction is of no effect. 26
s 156 122 s 157
Workplace Relations
does not limit other rights 1
Part
156. Subject to section 157, this part does not limit any right a person or 2
organisation may otherwise have to secure equal remuneration for work of 3
equal value. 4
under this part 5
Applications
157.(1) An application can not be made under this part for an order to 6
secure equal remuneration for work of equal value for an employee if a 7
proceeding for an alternative remedy-- 8
(a) to secure the remuneration for the employee; or 9
(b) against unequal remuneration for work of equal value for the 10
employee; 11
has begun under another provision of this Act or under another Act. 12
(2) Subsection (1) does not prevent an application under this part if the 13
proceeding for the alternative remedy has-- 14
(a) been discontinued by the party who started the proceeding; or 15
(b) failed for want of jurisdiction. 16
(3) If an application under this part has been made for an order to secure 17
equal remuneration for work of equal value for an employee, a person is not 18
entitled to take a proceeding for an alternative remedy under a provision or 19
Act mentioned in subsection (1)-- 20
(a) to secure the remuneration for the employee; or 21
(b) against unequal remuneration for work of equal value for the 22
employee. 23
(4) Subsection (3) does not prevent a proceeding being taken for an 24
alternative remedy if the proceeding under this part has-- 25
(a) been discontinued by the party who started the proceeding; or 26
(b) failed for want of jurisdiction. 27
(5) This section applies to an application under the corresponding 28
provisions of the repealed Act. 29
s 158 123 s 159
Workplace Relations
PART 3--PARENTAL LEAVE 1
Division 1--Preliminary 2
of pt 3 3
Object
158. The object of this part is to give effect to the Family Responsibilities 4
Convention. 5
principles 6
Basic
159.(1) Under this part, an employee who gives birth to a child, and her 7
spouse, are entitled to unpaid parental leave totalling 52 weeks to care for the 8
child. 9
(2) However, an employee's entitlement to leave under this part is 10
reduced by the employee's other entitlements to parental leave other than 11
under this part. 12
(3) To obtain parental leave under this part, an employee must satisfy 13
stated requirements about-- 14
(a) length of service; and 15
(b) notice periods; and 16
(c) information and documentation. 17
(4) Except for 1 week at the time of the birth, an employee and the 18
employee's spouse must take parental leave at different times. 19
(5) An employee may take other leave (annual leave for example) in 20
conjunction with parental leave, but this will reduce the amount of parental 21
leave the employee may take. 22
(6) Parental leave may be varied in certain circumstances. 23
(7) In general, if a variation is foreseeable, an employee must give notice 24
of it, but if a variation is not foreseeable notice is not required (for example, 25
when the birth is premature). 26
(8) Cancellation of parental leave by the employer is limited to situations 27
when-- 28
s 160 124 s 160
Workplace Relations
(a) the employee will not become, or ceases to be, the child's primary 1
care-giver; or 2
(b) there has been a mistake in calculating the amount of leave to 3
which the employee is entitled. 4
(9) An employee who takes parental leave is, in most circumstances, 5
entitled to return to the position the employee held before the leave was 6
taken. 7
(10) Parental leave does not break an employee's continuity of service. 8
for pt 3 9
Definitions
160. In this part-- 10
"continuous service"-- 11
(a) means service under an unbroken employment contract other than 12
as a casual or seasonal employee; and 13
(b) includes a period of leave or absence authorised by-- 14
(i) the employer; or 15
(ii) an industrial instrument or order; or 16
(iii) an employment contract; or 17
(iv) this part. 18
"employee" includes a part-time employee, but not a casual or seasonal 19
employee. 20
"law" includes an unwritten law. 21
"long paternity leave" means-- 22
(a) part 3 long paternity leave; or 23
(b) other leave that-- 24
(i) an employee is entitled to, or has been applied for or been 25
granted for the birth of his spouse's child, other than under 26
this part (for example, under an industrial instrument or 27
order); and 28
(ii) is analogous to part 3 long paternity leave, or would be 29
s 160 125 s 160
Workplace Relations
analogous except that-- 1
(A) it is paid leave; or 2
(B) different rules govern eligibility for it; or 3
(C) it can be taken for different periods. 4
"maternity leave" means-- 5
(a) part 3 maternity leave; or 6
(b) other leave that-- 7
(i) an employee is entitled to, or has been applied for or been 8
granted for her pregnancy or her child's birth, other than 9
under this part (for example, under an industrial instrument 10
or order); and 11
(ii) is analogous to part 3 maternity leave, or would be 12
analogous except that-- 13
(A) it is paid leave; or 14
(B) it can begin before the estimated date of birth; or 15
(C) different rules govern eligibility for it; or 16
(D) it can be taken for different periods. 17
"medical certificate" means a certificate signed by a doctor. 18
"parental leave" means maternity leave or paternity leave. 19
"part 3 long paternity leave" see section 173. 20
"part 3 maternity leave" see section 161. 21
"part 3 short paternity leave" see section 173. 22
"paternity leave" means short paternity leave or long paternity leave. 23
"short paternity leave" means-- 24
(a) part 3 short paternity leave; or 25
(b) other leave that-- 26
(i) an employee is entitled to, or has been applied for or been 27
granted for the birth of his spouse's child, other than under 28
this part (for example, under an industrial instrument or 29
s 161 126 s 162
Workplace Relations
order); and 1
(ii) is analogous to part 3 short paternity leave, or would be 2
analogous except that-- 3
(A) it is paid leave; or 4
(B) different rules govern eligibility for it; or 5
(C) it can be taken for different periods. 6
2--Maternity leave 7
Division
to maternity leave 8
Entitlement
161. A pregnant employee is entitled to 1 period of unpaid leave ("part 3 9
maternity leave") for the child's birth and to be the child's primary 10
care-giver. 11
of entitlement to maternity leave 12
Conditions
162.(1) An employer must grant part 3 maternity leave to an employee 13
if-- 14
(a) she notifies the employer of the estimated date of birth at least 15
70 days before the date; and 16
(b) she applies for the leave at least 28 days before the first day of the 17
leave; and 18
(c) the application states the first and last days of the leave; and 19
(d) the first day of the leave is the estimated date of birth or a later 20
day; and 21
(e) she gives with the application a medical certificate that states-- 22
(i) she is pregnant and the estimated date of birth; or 23
(ii) she has given birth to a living child and the date of birth; and 24
(f) she gives with the application a statutory declaration stating-- 25
(i) the first and last days of all the following-- 26
(A) short paternity leave for which her spouse intends to 27
s 162 127 s 162
Workplace Relations
apply, or has applied, for the child's birth; 1
(B) long paternity leave for which her spouse intends to 2
apply, or has applied, for the child's birth; 3
(C) annual or long service leave for which her spouse 4
intends to apply or has applied, instead of or in 5
conjunction with, the paternity leave; and 6
(ii) that she will-- 7
(A) be the child's primary care-giver throughout the 8
maternity leave; and 9
(B) not engage in conduct inconsistent with her 10
employment contract while on maternity leave; and 11
(g) it is reasonable to expect that she will complete, or she had 12
completed, at least 1 year of continuous service with the employer 13
on the day before the estimated date of birth. 14
(2) Subsections (1)(a) and (g) do not apply if-- 15
(a) because the child was premature, or for some other compelling 16
reason, it was not reasonably practicable for the employee to 17
comply with subsection (1)(a); and 18
(b) if it was not reasonably practicable for the employee to notify the 19
employer before the actual date of birth of the estimated date of 20
birth--she notified the employer as soon as reasonably 21
practicable; and 22
(c) otherwise--the medical certificate given under subsection (1)(e) 23
also states the date that, as at the 70th day before the actual date of 24
birth, was the estimated date of birth; and 25
(d) it is reasonable to expect the employee will complete, or the 26
employee had completed, 1 year of continuous service with the 27
employer on the day before the estimated date of birth. 28
(3) Subsection (1)(b) does not apply if-- 29
(a) it was not reasonably practicable for the employee to comply with 30
the paragraph because the child was premature, or for some other 31
compelling reason; and 32
(b) the employee gives the application as soon as reasonably 33
s 163 128 s 163
Workplace Relations
practicable before, on or after the first day of the leave; and 1
(c) if the child is born before the employee gives the application--the 2
first day of the leave is the day of the child's birth or a later day. 3
(4) If subsection (3)(c) applies, subsection (1)(d) does not apply. 4
(5) If, because the child was premature, the first day of the leave is earlier 5
than the estimated date of birth, a reference in this part to 1 year of 6
continuous service means a period of continuous service equal to 1 year less 7
the period-- 8
(a) beginning on the first day of the leave; and 9
(b) ending on the estimated date of birth. 10
(6) When an employee applies for maternity leave (the "substitute 11
leave") to be taken instead of maternity leave for which she has already 12
applied (the "original leave")-- 13
(a) if a document, given under subsection (1)(e) or (f) with the 14
application for the original leave, applies to the application for the 15
substitute leave--the document need not be given with the later 16
application; and 17
(b) if the employer approves the substitute leave--the employer-- 18
(i) must cancel the original leave if it has been approved; or 19
(ii) must not give the original leave if it has not been approved. 20
of maternity leave 21
Period
163.(1) The part 3 maternity leave-- 22
(a) if the child has not been born-- 23
(i) must begin on the later of-- 24
(A) the day stated in the application as the first day of the 25
leave; or 26
(B) the estimated date of birth; and 27
(ii) must not extend beyond the first anniversary of the estimated 28
date of birth; and 29
(b) if the child has been born-- 30
s 164 129 s 164
Workplace Relations
(i) must begin on the later of-- 1
(A) the day stated in the application as the first day of the 2
leave; or 3
(B) the child's date of birth; and 4
(ii) must not extend beyond the child's first birthday; and 5
(c) must not overlap with the spouse's leave (other than short 6
paternity leave) stated in the relevant statutory declaration; and 7
(d) must be for a continuous period equal to the shorter of-- 8
(i) the period applied for; or 9
(ii) the period of entitlement. 10
(2) The period of entitlement is 52 weeks less the total of all the 11
following-- 12
(a) unpaid leave (other than maternity leave) or paid sick leave that 13
the employer has already approved for the employee for the 14
pregnancy; 15
(b) annual or long service leave the employee has applied to take 16
instead of, or in conjunction with, maternity leave for the 17
pregnancy; 18
(c) the spouse's leave stated in the relevant statutory declaration. 19
reduced by other maternity leave available to employee 20
Entitlement
164.(1) This section applies if, had this part not been enacted-- 21
(a) an employee could have applied (for her pregnancy or her child's 22
birth) for maternity leave to which paragraphs (a) and (b) of the 23
definition "maternity leave" in section 160 applies, whether or not 24
she has in fact applied; and 25
(b) if she had applied as required by the rules governing the maternity 26
leave--she would have a legally enforceable right to the leave. 27
(2) If the period of alternative leave is at least as long as the unadjusted 28
period of maternity leave, the employer must not approve maternity leave to 29
the employee under a relevant section. 30
s 165 130 s 165
Workplace Relations
(3) Otherwise, the employer must approve to the employee, instead of 1
the unadjusted period of maternity leave, a period of maternity leave that-- 2
(a) equals the difference between the unadjusted period of maternity 3
leave and the period of alternative leave; and 4
(b) begins immediately after the period of alternative leave if the 5
employer grants it; and 6
(c) otherwise complies with section 163. 7
(4) In this section-- 8
"period of alternative leave" means the leave mentioned in 9
subsection (1)(b). 10
"relevant section" means section 16284 or 163. 11
"unadjusted period of maternity leave" means any part 3 maternity leave 12
that a relevant section would, apart from this section, require the 13
employer to grant to the employee for the child's birth. 14
annual or long service leave instead of, or in conjunction with, 15
Taking
maternity leave 16
165. If an employee applies to take annual or long service leave instead 17
of, or in conjunction with, part 3 maternity leave, the employer must 18
approve the annual or long service leave if-- 19
(a) had this part not been enacted, the employer would have been 20
obliged to grant it; or 21
(b) the total of all the following is not more than 52 weeks-- 22
(i) the annual or long service leave; 23
(ii) annual or long service leave that the employer has already 24
granted the employee instead of, or in conjunction with, the 25
maternity leave; 26
(iii) the maternity leave; 27
(iv) unpaid leave (other than maternity leave) or paid sick leave 28
that the employer has already approved for the employee for 29
84 Section 162 (Conditions of entitlement to maternity leave)
s 166 131 s 167
Workplace Relations
the pregnancy; 1
(v) the spouse's leave under section 162(1)(f)85 specified in the 2
relevant statutory declaration. 3
maternity leave 4
Extending
166.(1) An employee may apply to extend the part 3 maternity leave 5
approved for her. 6
(2) The employer must approve the application if-- 7
(a) the application is given to the employer at least 14 days before the 8
last day of the leave; and 9
(b) the application states the first and last day of the extended leave; 10
and 11
(c) unless the things mentioned in section 162(1)(f)(i)86 are still as 12
specified in the relevant statutory declaration--the employee gives 13
with the application a statutory declaration stating the things 14
mentioned; and 15
(d) the period of leave, if extended, would not be more than the 16
period of entitlement under section 163,87 worked out when 17
granting the application. 18
(3) The maternity leave may be extended again only by agreement 19
between the employer and the employee. 20
maternity leave 21
Shortening
167.(1) An employee may apply to shorten the part 3 maternity leave 22
granted to her. 23
(2) The employer may grant the application if it states the last day of the 24
shortened leave. 25
85 Section 162 (Conditions of entitlement to maternity leave)
86 Section 162 (Conditions of entitlement to maternity leave)
87 Section 163 (Period of maternity leave)
s 168 132 s 169
Workplace Relations
on maternity leave of failure to complete 1 year of continuous 1
Effect
service 2
168. The employer may cancel part 3 maternity leave if-- 3
(a) it has been granted on the basis that it is reasonable to expect the 4
employee will complete a period of at least 1 year of continuous 5
service with the employer on a particular day; and 6
(b) the employee does not complete the period on the day.88 7
on maternity leave if pregnancy terminates or child dies 8
Effect
169.(1) This section applies if an employer has approved part 3 maternity 9
leave to an employee and-- 10
(a) the pregnancy terminates other than by the birth of a living child; 11
or 12
(b) she gives birth to a living child, but the child later dies. 13
(2) If an event mentioned in subsection (1)(a) or (b) happens before the 14
leave begins, the employer may cancel the leave before it begins. 15
(3) If the leave has begun, the employee may notify the employer that she 16
wishes to return to work. 17
(4) If the employee does so, the employer must notify her of the day 18
when she must return to work. 19
(5) The day must be within 4 weeks after the employer received the 20
notice. 21
(6) Also, despite subsections (3) to (5), if the leave has begun, the 22
employer may notify the employee of the day when she must return to 23
work. 24
(7) The day must be at least 4 weeks after the employer gives the notice. 25
(8) If the employee returns to work, the employer must cancel the rest of 26
the leave. 27
88 If the period is not completed because the child is premature, see section 162(5).
s 170 133 s 171
Workplace Relations
on maternity leave of ceasing to be the primary care-giver 1
Effect
170.(1) This section applies if-- 2
(a) during a substantial period beginning on or after the beginning of 3
an employee's part 3 maternity leave, the employee is not the 4
child's primary care-giver; and 5
(b) considering the length of the period and any other relevant 6
circumstances, it is reasonable to expect the employee will not 7
again become the child's primary care-giver within a reasonable 8
period. 9
(2) The employer may notify the employee of the day when she must 10
return to work. 11
(3) The day must be at least 4 weeks after the employer gives the notice. 12
(4) If the employee returns to work, the employer must cancel the rest of 13
the leave. 14
to work after maternity leave 15
Return
171.(1) This section applies when an employee returns to work after 16
part 3 maternity leave. 17
(2) The employer must employ her in the position she held immediately 18
before-- 19
(a) if she was transferred to safe duties under section 17289--the 20
transfer; or 21
(b) if she began working part-time because of the pregnancy--she 22
began working part-time; or 23
(c) otherwise--she began maternity leave. 24
(3) If-- 25
(a) the position no longer exists; but 26
(b) she is qualified for, and can perform the duties of, other positions 27
in the employer's employment; 28
89 Section 172 (Transfer to safe duties because of pregnancy)
s 172 134 s 174
Workplace Relations
the employer must employ her in whichever of the other positions is nearest 1
in status and remuneration to the position. 2
to safe duties because of pregnancy 3
Transfer
172. If a doctor considers-- 4
(a) an illness or risk arising out of an employee's pregnancy; or 5
(b) hazards connected with an employee's work considering the 6
employee's pregnancy; 7
make it inadvisable for the employee to continue existing duties, the 8
employer may-- 9
(c) transfer the employee to other duties that-- 10
(i) the employee can efficiently perform; and 11
(ii) are nearest in status and remuneration to the existing duties; 12
or 13
(d) direct the employee to take leave for the period that the doctor 14
considers necessary. 15
Division 3--Paternity leave 16
to paternity leave 17
Entitlement
173. For the birth of his spouse's child, an employee is entitled to-- 18
(a) up to 1 week of unpaid paternity leave ("part 3 short paternity 19
leave") beginning on the child's date of birth; and 20
(b) unpaid paternity leave ("part 3 long paternity leave") to be the 21
child's primary care-giver. 22
of entitlement to short paternity leave 23
Conditions
174.(1) An employer must grant part 3 short paternity leave to an 24
employee if-- 25
(a) at least 70 days before the estimated date of birth, he gives to the 26
s 174 135 s 174
Workplace Relations
employer-- 1
(i) a notice stating his intention to apply for the leave and how 2
long (up to 1 week) the leave is to last; and 3
(ii) a medical certificate that names his spouse and states she is 4
pregnant and the estimated date of birth; and 5
(b) he applies for the leave as soon as reasonably practicable on or 6
after the first day of the leave; and 7
(c) the application states the first and last days of the leave; and 8
(d) the leave is for not more than 1 week; and 9
(e) unless the first day of the leave is the estimated date of birth-- 10
(i) he gives with the application a medical certificate that names 11
his spouse and states the actual date of birth; and 12
(ii) the first day of the leave is the actual date of birth; and 13
(f) it is reasonable to expect that he will complete, or he had 14
completed, at least 1 year of continuous service with the employer 15
on the day before the estimated date of birth. 16
(2) Subsection (1)(a) and (f) does not apply if-- 17
(a) because the child was premature, or for some other compelling 18
reason, it was not reasonably practicable for the employee to 19
comply with subsection (1)(a); and 20
(b) if it was not reasonably practicable for the employee to give the 21
employer (before the actual date of birth) the notice and certificate 22
mentioned in subsection (1)(a)--he gave them as soon as 23
reasonably practicable; and 24
(c) otherwise--the medical certificate given under subsection (1)(e)(i) 25
also states the date that, as at the 70th day before the actual date of 26
birth, was the estimated date of birth; and 27
(d) it is reasonable to expect the employee will complete, or the 28
employee had completed, 1 year of continuous service with the 29
employer on the day before the estimated date of birth. 30
s 175 136 s 175
Workplace Relations
of entitlement to long paternity leave 1
Conditions
175.(1) An employer must grant part 3 long paternity leave to an 2
employee if-- 3
(a) he applies for the leave at least 70 days before the first day of the 4
of leave; and 5
(b) the application states the first and last days of the leave; and 6
(c) he gives with the application a medical certificate that names his 7
spouse and states-- 8
(i) she is pregnant and the estimated date of birth; or 9
(ii) she has given birth to a living child and the date of birth; and 10
(d) he gives with the application a statutory declaration stating-- 11
(i) the first and last days of all the following-- 12
(A) unpaid leave (other than maternity leave) or paid sick 13
leave for which his spouse intends to apply, or has 14
applied, for the pregnancy; 15
(B) maternity leave for which his spouse intends to apply, 16
or has applied, for the child's birth; 17
(C) annual or long service leave, for which his spouse 18
intends to apply, or has applied, instead of, or in 19
conjunction with, maternity leave; and 20
(ii) that he will-- 21
(A) be the child's primary care-giver throughout the 22
paternity leave; and 23
(B) not engage in conduct inconsistent with his 24
employment contract while on paternity leave; and 25
(e) it is reasonable to expect that he will complete, or he had 26
completed, at least 1 year of continuous service with the employer 27
on the day before the first day of the leave. 28
(2) Subsection (1)(a) does not apply if-- 29
(a) it was not reasonably practicable for the employee to comply with 30
the subsection because the child was premature, or for some other 31
compelling reason; and 32
s 176 137 s 176
Workplace Relations
(b) the employee gives the application as soon as reasonably 1
practicable before, on or after the first day of the leave. 2
of long paternity leave 3
Period
176.(1) The part 3 long paternity leave-- 4
(a) if the child has not been born-- 5
(i) must begin on the later of-- 6
(A) the day stated in the application as the first day of the 7
leave; or 8
(B) the estimated date of birth; and 9
(ii) must not extend beyond the first anniversary of the estimated 10
date of birth; and 11
(b) if the child has been born-- 12
(i) must begin on the later of-- 13
(A) the day stated in the application as the first day of the 14
leave; or 15
(B) the child's date of birth; and 16
(ii) must not extend beyond the child's first birthday; and 17
(c) must not overlap with the spouse's leave specified in the relevant 18
statutory declaration; and 19
(d) must be for a continuous period equal to the shorter of-- 20
(i) the period applied for; or 21
(ii) the period of entitlement. 22
(2) The period of entitlement is 52 weeks less the total of all the 23
following-- 24
(a) the short paternity leave the employee has applied to take; 25
(b) annual or long service leave the employee has applied to take 26
instead of, or in conjunction with, long paternity leave for the 27
child's birth; 28
(c) the spouse's leave stated in the relevant statutory declaration. 29
s 177 138 s 177
Workplace Relations
reduced by other paternity leave available to employee 1
Entitlement
177.(1) This section applies if, had this part not been enacted-- 2
(a) an employee could have applied (for the birth of his spouse's 3
child) for short paternity leave or long paternity leave to which 4
paragraphs (a) and (b) of the definition "short paternity leave" or 5
"long paternity leave" in section 160 apply, whether or not he has 6
in fact applied; and 7
(b) if he had applied as required by the rules governing the paternity 8
leave--he would have a legally enforceable right to the leave. 9
(2) If the period of alternative leave is at least as long as the unadjusted 10
period of paternity leave, the employer must not grant leave to the employee 11
under a relevant section. 12
(3) Otherwise, the employer must approve to the employee, instead of 13
the unadjusted period of paternity leave, a period of short paternity leave, or 14
long paternity leave, that-- 15
(a) equals the difference between the unadjusted period of paternity 16
leave and the period of alternative leave; and 17
(b) begins immediately after the period of alternative leave if the 18
employer grants it; and 19
(c) otherwise complies with a relevant section. 20
(4) In this section-- 21
"period of alternative leave" means the leave mentioned in 22
subsection (1)(b). 23
"relevant section" means section 174 or 175.90 24
"unadjusted period of paternity leave" means any part 3 short paternity 25
leave or part 3 long paternity leave that a relevant section would, apart 26
from this section, require the employer to approve to the employee for 27
the child's birth. 28
90 Section 174 (Conditions of entitlement to short paternity leave) or
175 (Conditions of entitlement to long paternity leave)
s 178 139 s 179
Workplace Relations
annual or long service leave instead of, or in conjunction with, 1
Taking
paternity leave 2
178. If an employee applies to take annual or long service leave, instead 3
of, or in conjunction with, part 3 short paternity leave or part 3 long 4
paternity leave, the employer must grant the annual or long service leave 5
if-- 6
(a) had this part not been enacted, the employer would have been 7
obliged to grant it; or 8
(b) the total of all the following is not more than 52 weeks-- 9
(i) the annual or long service leave; 10
(ii) annual or long service leave that the employer has already 11
granted the employee instead of, or in conjunction with, the 12
paternity leave; 13
(iii) the paternity leave; 14
(iv) the spouse's leave stated under section 175(1)(d)91 in the 15
relevant statutory declaration. 16
long paternity leave 17
Extending
179.(1) An employee may apply to extend the part 4 long paternity leave 18
granted for him. 19
(2) The employer must approve the application if-- 20
(a) the application is given to the employer at least 14 days before the 21
last day of the leave; and 22
(b) the application states the first and last day of the extended leave; 23
and 24
(c) unless the things mentioned in section 175(1)(d)(i)92 are still as 25
stated in the relevant statutory declaration--the employee gives 26
with the application a statutory declaration stating the things 27
mentioned; and 28
91 Section 175 (Conditions of entitlement to long paternity leave)
92 Section 175 (Conditions of entitlement to long paternity leave)
s 180 140 s 182
Workplace Relations
(d) the period of leave, if extended, would not be more than the 1
period of entitlement under section 176(2),93 worked out when 2
granting the application. 3
(3) The paternity leave may be extended again only by agreement 4
between the employer and the employee. 5
paternity leave 6
Shortening
180.(1) An employee may apply to shorten the part 3 paternity leave 7
granted to him. 8
(2) The employer may grant the application if it states the last day of the 9
shortened leave. 10
on long paternity leave of failure to complete 1 year of 11
Effect
continuous service 12
181. The employer may cancel part 3 long paternity leave if-- 13
(a) it has been granted on the basis that it is reasonable to expect the 14
employee will complete a period of at least 1 year of continuous 15
service with the employer on a particular day; and 16
(b) the employee does not complete the period on the day.94 17
on long paternity leave if pregnancy terminates or child dies 18
Effect
182.(1) This section applies if an employer has granted part 3 long 19
paternity leave to an employee and-- 20
(a) his spouse's pregnancy terminates other than by the birth of a 21
living child; or 22
(b) his spouse gives birth to a living child, but the child later dies. 23
(2) If an event mentioned in subsection (1)(a) or (b) happens before the 24
leave begins, the employer may cancel the leave before it begins. 25
93 Section 176 (Period of long paternity leave)
94 If the period is not completed because the child is premature, see section 162(5).
s 183 141 s 184
Workplace Relations
(3) If the leave has begun, the employee may notify the employer that he 1
wishes to return to work. 2
(4) If the employee does so, the employer must notify him of the day 3
when he must return to work. 4
(5) The day must be within 4 weeks after the employer received the 5
notice. 6
(6) Also, despite subsections (3) to (5), if the leave has begun, the 7
employer may notify the employee of the day when he must return to work. 8
(7) The day must be at least 4 weeks after the employer gives the notice. 9
(8) If the employee returns to work, the employer must cancel the rest of 10
the leave. 11
on paternity leave of ceasing to be the primary care-giver 12
Effect
183.(1) This section applies if-- 13
(a) during a substantial period beginning on or after the beginning of 14
an employee's part 3 long paternity leave, the employee is not the 15
child's primary care-giver; and 16
(b) considering the length of the period and any other relevant 17
circumstances, it is reasonable to expect the employee will not 18
again become the child's primary care-giver within a reasonable 19
period. 20
(2) The employer may notify the employee of the day he must return to 21
work. 22
(3) The day must be at least 4 weeks after the employer gives the notice. 23
(4) If the employee returns to work, the employer must cancel the rest of 24
the leave. 25
to work after paternity leave 26
Return
184.(1) This section applies when an employee returns to work after 27
part 3 long paternity leave. 28
(2) The employer must employ him in the position he held immediately 29
before he began paternity leave. 30
s 185 142 s 185
Workplace Relations
(3) If-- 1
(a) the position no longer exists; but 2
(b) he is qualified for, and can perform the duties of, other positions 3
in the employer's employment; 4
the employer must employ him in whichever of the other positions is 5
nearest in status and remuneration to the position. 6
Division 4--General 7
duty if excessive leave approved or if maternity leave and 8
Employee's
paternity leave overlap 9
185.(1) This section applies if-- 10
(a) the total of all the following is more than 52 weeks-- 11
(i) maternity leave granted by an employer to an employee for a 12
pregnancy; 13
(ii) annual or long service leave granted by the employer to the 14
employee instead of, or in conjunction with, the maternity 15
leave; 16
(iii) unpaid leave (other than maternity leave) or paid sick leave 17
granted by the employer to the employee for the pregnancy; 18
(iv) paternity leave granted by an employer to the employee's 19
spouse; 20
(v) annual or long service leave granted by the employer to the 21
employee's spouse instead of, or in conjunction with, the 22
paternity leave; or 23
(b) leave granted for the employee overlaps with leave granted for the 24
employee's spouse. 25
(2) The employee must give her employer a notice-- 26
(a) if subsection (1)(a) applies--stating that the total is more than 27
52 weeks and stating the amount of the excess; and 28
(b) if subsection (1)(b) applies--stating the period of overlap; and 29
s 186 143 s 186
Workplace Relations
(c) suggesting how the employer may vary or cancel leave granted to 1
her (other than leave she has already taken) to reduce or remove 2
the excess or overlap; and 3
(d) unless the variations and cancellations suggested will remove the 4
excess or overlap--setting out the suggestions her spouse has 5
made or will make under subsection (3)(c). 6
(3) The employee's spouse must give his employer a notice-- 7
(a) if subsection (1)(a) applies--stating that the total is more than 8
52 weeks and stating the amount of the excess; and 9
(b) if subsection (1)(b) applies--stating the period of overlap; and 10
(c) suggesting how the employer may vary or cancel leave granted to 11
him (other than leave he has already taken) to reduce or remove 12
the excess or overlap; and 13
(d) unless the variations or cancellations suggested will remove the 14
excess or overlap--setting out the suggestions his spouse has 15
made or will make under subsection (2)(c). 16
(4) The variations and cancellations suggested must be of a kind that, if 17
they are all made, the excess or overlap will be removed. 18
(5) An employer who receives a notice under subsection (2) or (3) may 19
vary or cancel leave as suggested in the notice, or as agreed with the 20
employee or her spouse. 21
to warn replacement employee that employment is only 22
Employer
temporary 23
186. An employer may employ a person-- 24
(a) to replace an employee while the employee is on parental leave; or 25
(b) to replace an employee who, while another employee is on 26
parental leave, must perform the duties of the position held by the 27
other employee; 28
only if the employer has informed the person-- 29
(c) that the person's employment is temporary; and 30
(d) about the rights of the employee who is on parental leave. 31
s 187 144 s 190
Workplace Relations
leave and continuity of service 1
Parental
187. A period of parental leave does not break an employee's continuity 2
of service, but does not count as service other than-- 3
(a) to determine the employee's entitlement to a later period of 4
parental leave; or 5
(b) as expressly provided in this Act, or in an industrial instrument or 6
order; or 7
(c) as prescribed under a regulation. 8
of part on other laws 9
Effect
188.(1) To avoid doubt, this part has effect despite-- 10
(a) another law of the State; or 11
(b) an industrial instrument or order. 12
(2) However, this part is not intended to exclude or limit the operation of 13
the law, industrial instrument or order as far as it can operate concurrently 14
with this part. 15
for adoption leave 16
Regulations
189. A regulation may provide for employers to give employees unpaid 17
adoption leave. 18
PART 4--LONG SERVICE LEAVE 19
for pt 4 20
Definitions
190. In this part-- 21
"continuous service" of an employee means-- 22
(a) in section 194 95--the period of continuous service the employee 23
95 Section 194 (Long service leave in sugary industry and meat works)
s 191 145 s 191
Workplace Relations
is taken to have had with an employer under section 194(3); and 1
(b) elsewhere--the employee's continuous service with the same 2
employer (whether wholly in the State, or partly in and partly 3
outside the State). 4
"industrial authority" means-- 5
(a) for a certified agreement--the commission; or 6
(b) for a QWA--an enterprise commissioner. 7
"owner" of a meat works includes a person who carries on the business of 8
the works. 9
"period between seasons" includes the period between-- 10
(a) the end of 1 season and the start of the next season; and 11
(b) for a particular employee--the day the employee stops 12
employment in 1 season and the day the employee starts 13
employment in the next season. 14
"season" means a period (whether falling completely in 1 calendar year or 15
partly in 1 calendar year and partly in the next calendar year) when-- 16
(a) for the sugar industry-- 17
(i) sugar cane is delivered to, and crushed at, a sugar mill; or 18
(ii) sugar cane is harvested, or farm work is performed, in the 19
sugar industry; and 20
(b) for a meat works--stock are delivered to, and slaughtered at, the 21
works. 22
"seasonal employment" means employment related to a season. 23
of long service leave entitlement 24
Source
191. The entitlement of employees to long service leave on full pay is-- 25
(a) for employees who have the entitlement under another Act--as 26
prescribed under the other Act; or 27
s 192 146 s 193
Workplace Relations
(b) for an entitlement under section 19596--as declared under a 1
regulation made under section 195; or 2
(c) for an entitlement under section 19697--as prescribed under 3
section 196; or 4
(d) for employees who have an entitlement, under an industrial 5
instrument, that is not as favourable as the entitlement under this 6
part--as prescribed under this part. 7
of long service leave conditions 8
Approval
192.(1) On application, the commission must insert in an award 9
provisions entitling employees to long service leave on full pay as 10
prescribed by this part. 11
(2) An industrial authority may approve, as a certified agreement or 12
QWA, an agreement under which employees are entitled to long service 13
leave benefits that the industrial authority considers are at least as favourable 14
to employees as the entitlement under this part. 15
(3) The industrial authority must approve the agreement if satisfied-- 16
(a) an employer who is a party to the agreement has agreed to the 17
provisions conferring long service leave on the employees; and 18
(b) the community in general will not be prejudiced by conferring the 19
leave. 20
to long service leave 21
Entitlement
193.(1) An employee who is entitled to long service leave under a law, 22
industrial instrument, or other agreement or arrangement, is entitled to leave 23
that is at least as favourable as the entitlement under this part. 24
(2) The entitlement of employees to long service leave under this part 25
is-- 26
(a) for an employee with 15 years continuous service--13 weeks; 27
and 28
96 Section 195 (Long service leave for other seasonal employees)
97 Section 196 (Long service leave for employees not governed awards etc.)
s 194 147 s 194
Workplace Relations
(b) for an employee, with at least 10 but less than 15 years 1
continuous service, whose service is terminated--a period that 2
bears to 13 weeks the proportion that the employee's period of the 3
continuous service (stated in years, and a fraction of a year if 4
necessary) bears to 15 years; and 5
(c) for an employee who, after completing the first, or a subsequent, 6
15 years continuous service, continues the service-- 7
(i) if the employee completes a further 15 years continuous 8
service--a further 13 weeks; or 9
(ii) if the employee's service is terminated after completing at 10
least a further 5 but less than 15 years continuous service--a 11
further period that bears to 13 weeks the proportion that the 12
employee's further period of the continuous service (stated 13
in years, and a fraction of a year if necessary) bears to 14
15 years. 15
(3) Long service leave is exclusive of a public holiday during the period 16
of the leave. 17
(4) This section applies subject to adjustments made for-- 18
(a) a seasonal employee under section 194 or 195;98 and 19
(b) a casual employee under section 200.99 20
(5) In this section-- 21
"terminated" means terminated by-- 22
(a) the employee's death; or 23
(b) the employee; or 24
(c) the employer, for a cause other than serious misconduct. 25
service leave in sugar industry and meat works 26
Long
194.(1) This section applies to an employee who is entitled to long 27
98 Section 194 (Long service leave in sugary industry and meat works) or
195 (Long service leave for other seasonal employees)
99 Section 200 (Service of casual employees)
s 194 148 s 194
Workplace Relations
service leave on full pay because the commission has conferred, under 1
section 192,100 an entitlement on employees employed-- 2
(a) in seasonal employment in the sugar industry; or 3
(b) in or about meat works in seasonal employment by the meat 4
works owner. 5
(2) This section prescribes the employee's entitlement to long service 6
leave by determining-- 7
(a) under subsection (3)-- 8
(i) how the employee's period of continuous service with an 9
employer must be worked out for the purpose of working 10
out the employee's unadjusted entitlement; and 11
(ii) how the employee's period of actual service with an 12
employer must be worked out; and 13
(b) under subsection (4)--the employee's seasonal entitlement for 14
each period of long service leave provided under section 193. 15
(3) The following rules apply for subsection (2)(a)-- 16
(a) service before the commencement of this section must be treated 17
in the same way as service after the commencement; 18
(b) if the employee is engaged in harvesting sugar cane or farm work 19
in the sugar industry--service with the employer before 23 June 20
1990 must not be taken into account; 21
(c) the continuity of the employee's service with an employer is not 22
broken by a period when the employee is not employed by the 23
employer between seasons if-- 24
(i) in 1 season, the employee's service with the employer 25
continued until the end of the season or until an earlier day 26
when the employee's employment was terminated by the 27
employer; and 28
(ii) in the next season, the employee's service with the same 29
employer started on the season's opening or on a later day in 30
the season when the employer required the employee to start 31
100 Section 192 (Approval of long service leave conditions)
s 194 149 s 194
Workplace Relations
employment; 1
(d) a period between seasons, when the employee is not employed by 2
the employer-- 3
(i) must be taken into account in calculating the employee's 4
period of continuous service with an employer; and 5
(ii) must not to be taken into account in working out the length 6
of the employee's actual service; 7
(e) times in a period between seasons when the employee is 8
employed by the employer must be taken into account for 9
determining actual service; 10
(f) long service leave to which an employee is entitled-- 11
(i) may be taken by the employee during the period between 12
seasons; and 13
(ii) if taken during the period between seasons--is taken to have 14
started on the last cessation of the employee's employment 15
by the employer. 16
(4) For subsection (2)(b), the seasonal entitlement of an employee for 17
each period of long service leave provided for under section 193 is the 18
period obtained by using the following formula-- 19
unadjusted entitlement X actual service 20
continuous service. 21
(5) In this section-- 22
"actual service" of an employee means the period of actual service the 23
employee is taken to have had with an employer under subsection (3). 24
"meat works" means a place where livestock are slaughtered or meat is 25
boned. 26
"seasonal entitlement" of an employee means the period of long service to 27
which an employee is entitled by using the formula in subsection (4). 28
"unadjusted entitlement" means the period of long service leave to which 29
an employee would be entitled under section 193 if-- 30
(a) subsection (3) was applied; but 31
(b) the adjustment under subsection (4) was not made. 32
s 195 150 s 196
Workplace Relations
service leave for other seasonal employees 1
Long
195.(1) A regulation may provide for long service leave for other 2
employees whose employment with the same employer-- 3
(a) is seasonal or of another periodic nature; and 4
(b) is not defined as casual by the relevant industrial instrument. 5
(2) The regulation may specify employees by reference to callings, 6
duties, employers, workplaces or in another way sufficient to identify them. 7
service leave for employees not governed by awards etc. 8
Long
196.(1) This section applies to an employee who is not bound by-- 9
(a) an industrial instrument; or 10
(b) a Commonwealth award that provides for long service leave; or 11
(c) another Act, or a law of the Commonwealth, that provides for 12
long service leave. 13
(2) The employee is entitled to long service leave on full pay in 14
accordance with sections 193 to 206 and this section. 15
(3) A reference in sections 193 to 206, to an industrial instrument, is to 16
be read as including a reference to a Commonwealth award. 17
(4) The commission may determine all matters about the time when, the 18
way in which and the conditions on which long service leave may be taken. 19
(5) Without limiting subsection (4), the commission's jurisdiction 20
extends to the declaration of general rulings by a full bench. 21
(6) A person must comply with the general ruling. 22
Maximum penalty--16 penalty units. 23
(7) For this section, if the employee is employed in seasonal employment 24
in or about meat works by an owner in seasonal employment as defined by 25
section 194101-- 26
(a) the continuity of the employee's service with an employer is not 27
broken by a period when the employee is not employed by the 28
101 Section 194 (Long service leave in sugary industry and meat works)
s 197 151 s 197
Workplace Relations
employer between seasons if-- 1
(i) in 1 season, the employee's service with the employer 2
continued until the end of the season or until an earlier date 3
when the employee's employment was terminated by the 4
employer; and 5
(ii) in the next season, the employee's service with the same 6
employer commenced on the season's opening or on a later 7
date in the season when the employer required the employee 8
to commence employment; and 9
(b) in determining the length of continuous service with the 10
employer-- 11
(i) a period between seasons, when the employee is not 12
employed by an employer, must not be taken into account; 13
and 14
(ii) times in the period when the employee is employed by the 15
employer must be taken into account; and 16
(c) long service leave to which an employee is entitled-- 17
(i) may be taken by the employee during the period between 18
seasons; and 19
(ii) if taken during the period between seasons--is taken to have 20
started on the last cessation of the employee's employment 21
by the employer. 22
(8) In this section-- 23
"Commonwealth award" means an industrial instrument, determination 24
or order made, registered, approved or certified under the 25
Commonwealth Act. 26
of service generally 27
Continuity
197.(1) In working out an employee's entitlement to long service leave 28
under this part-- 29
(a) service with an employer who becomes a member of a 30
partnership and service with the partnership is service with the 31
same employer; and 32
s 197 152 s 197
Workplace Relations
(b) service with a partnership and-- 1
(i) service with 1 or more of the former partners on dissolution 2
of the partnership; and 3
(ii) service with the partnership as reconstituted, on dissolution 4
of the partnership; 5
is service with the same employer; and 6
(c) continuity of an employee's service with an employer is not 7
broken by-- 8
(i) absence (including through illness or injury) from work on 9
leave approved by the employer; or 10
(ii) the employee's employment being terminated by the 11
employer or employee because of illness or injury, if the 12
employee-- 13
(A) is re-employed by the employer; and 14
(B) has not been employed in a calling (whether on the 15
employee's own account or as an employee) between 16
the termination and the re-employment; or 17
(iii) the employee's employment being terminated by the 18
employer or employee for not more than 3 months, if the 19
employee is re-employed by the employer; or 20
(iv) an interruption or termination of the employee's service with 21
the employer, if the interruption or termination has-- 22
(A) been effected by the employer with an intention of 23
avoiding an obligation imposed on the employer by this 24
part or an industrial instrument; or 25
(B) arisen directly or indirectly from an industrial dispute, 26
and the employee is re-employed by the employer; or 27
(C) been effected by the employer because of slackness in 28
trade or business, and the employee is re-employed by 29
the employer; or 30
(v) the employer's calling is transferred from the employer to 31
another employer; or 32
s 198 153 s 198
Workplace Relations
(vi) the employee's employment being terminated by the 1
employer or employee, on the date when the employer's 2
calling is transferred from the employer to another employer, 3
or within 1 month immediately before that date, if the 4
employee is re-employed by the other employer within 5
3 months after the termination; and 6
(d) periods of continuous service of an employee with each of the 7
employers from or to whom the calling in which the employer is 8
engaged is transferred must be taken into account in determining 9
the length of the employee's continuous service with the 10
employer to whom the employee's service is transferred. 11
(2) In this section-- 12
"terminate" includes stand-down. 13
length of continuous service 14
Determining
198.(1) If an employee's entitlement to long service leave relates to 15
employment before the relevant day-- 16
(a) the determination of the employee's continuous service before the 17
relevant day; and 18
(b) the calculation of the employee's entitlement to long service leave 19
in relation to continuous service before the relevant day; 20
must be made under the repealed Industrial Conciliation and Arbitration 21
Act 1961, sections 17, 18, 19 or 20, as the case requires. 22
(2) In determining the length of an employee's continuous service, a 23
period of the employee's absence from work that does not break the 24
continuity of the employee's service under the following sections is not to 25
be taken into account-- 26
(a) section 197(1)(c)(ii); 27
(b) section 197(1)(c)(iv)(A) or (B). 28
(3) In determining the length of an employee's continuous service, if the 29
employee's service is, or has been before the relevant day-- 30
(a) temporarily lent or let on hire by an employer to another 31
employer--the service with the other employer is taken to be 32
s 199 154 s 199
Workplace Relations
service with the employer; or 1
(b) transferred by an employer to another employer--the service with 2
each of the employers (except for a period when the employee 3
took long service leave) is taken to be service with the other 4
employer. 5
(4) In determining the length of an employee's continuous service with a 6
corporation, or of another corporation that is a subsidiary of the corporation, 7
the service with each of the corporations (except for a period when the 8
employee took long service leave) is to be taken into account. 9
(5) In this section-- 10
"relevant day" means 23 June 1990. 11
"subsidiary" means a corporation that would be taken to be a subsidiary 12
under the Corporations law, whether or not the Corporations law 13
applies in a particular case. 14
in Defence Force 15
Service
199.(1) This section applies in working out a person's entitlement to long 16
service leave under this part. 17
(2) Service by the person as a member of the Defence Force is taken to 18
be continuous service with the employer who employed the person 19
immediately before the person began service with the Force. 20
(3) In this section-- 21
"Defence Force" means the Australian Defence Force. 22
"permanent forces" has the meaning given by the Defence Act 1903 23
(Cwlth).102 24
"service", as a member of the Defence Force, means service in the Force 25
other than in the permanent forces. 26
102 See section 4(1) of that Act.
s 200 155 s 200
Workplace Relations
of casual employees 1
Service
200.(1) In working out an employee's entitlement to long service leave 2
under this part, service of an employee who is employed more than once by 3
the same employer over a period is continuous service with the employer 4
even if the employment is broken. 5
(2) However, the continuous service ends if the employment is broken 6
by more than a 3 month period between the end of 1 employment contract 7
and the start of the next employment contract. 8
(3) Subsection (1) applies even though-- 9
(a) any of the employment is not full-time employment; or 10
(b) the employee is employed by the employer under 2 or more 11
employment contracts; or 12
(c) the employee would, apart from this section, be taken to be 13
engaged in casual employment; or 14
(d) the employee has engaged in other employment during the period. 15
(4) In working out the employee's continuous service-- 16
(a) service by the employee before 23 June 1990 must not be taken 17
into account; and 18
(b) if the employee only obtained the entitlement because of the 19
enactment of section 17 of the Industrial Relations Reform Act 20
1994--the employee's service between 23 June 1990 and the 21
commencement of section 17 must not be taken into account; and 22
(c) a period when the employee was not employed by the employer 23
must be taken into account. 24
(5) Subsection (4)(a) does not affect an employee's entitlement to long 25
service leave under-- 26
(a) an award made before 23 June 1990; or 27
(b) the Industrial Conciliation and Arbitration Act 1961. 28
s 201 156 s 201
Workplace Relations
(6) This section does not limit an entitlement to long service leave 1
worked out other than under this section.103 2
long service leave 3
Taking
201.(1) Subject to section 193,104 an industrial authority may insert in an 4
industrial instrument the provisions the industrial authority considers 5
appropriate-- 6
(a) for the time when, the way in which and the conditions on which 7
long service leave may be taken; or 8
(b) to the effect that leave in the nature of long service leave taken, 9
before the provisions are inserted, by an employee bound by the 10
instrument must be deducted from the long service leave that the 11
employee becomes entitled to under the provisions. 12
(2) The provisions operate and must be given effect as if prescribed 13
under this part. 14
(3) Subject to a provision of the industrial instrument, long service leave 15
may be taken at a time agreed between-- 16
(a) an organisation of which the employees are members; and 17
(b) the employer. 18
(4) If-- 19
(a) the relevant industrial instrument does not provide for the time 20
when, or the way in which, long service leave may be taken; and 21
(b) an employee, or an organisation of which the employee is a 22
member, fails to agree with the employer on the matters; 23
the employer may give the employee at least 3 months notice of the date on 24
103 See section 197, which provides other rules for calculating an employee's
entitlement to long service leave.
104 Section 193 (Entitlement to long service leave)
s 202 157 s 203
Workplace Relations
which the employee must take at least 4 weeks long service leave. 1
(5) The employee must comply with the notice. 2
long service leave--casual employees 3
Taking
202.(1) An employer may agree with an employee who is entitled to long 4
service leave under section 200 105 that the entitlement may be taken in the 5
form of its full-time equivalent. 6
7
Example--
8
If an employee--
9
(a) is entitled to be paid for 260 hours long service leave; and
10
(b) works under an award that provides for a full-time working week of
11
40 ordinary hours;
12
the employee and the employer may agree that the employee take 61/2 weeks leave
13
(260 ÷ 40 = 61/2).
(2) This section applies subject to a provision in an industrial instrument 14
about the employee's long service leave. 15
for long service leave 16
Payment
203.(1) Long service leave must be paid for as ordinary time that, for the 17
purpose of making the payment, is taken to be worked continuously by the 18
employee during the leave period. 19
(2) If, immediately before commencing long service leave, an employee 20
is being paid for ordinary time at a higher rate than the ordinary rate, the 21
employee's leave must be paid for at the higher rate. 22
(3) However, if during the employee's leave, the ordinary rate is-- 23
(a) increased above the higher rate--the employee must be paid at the 24
increased rate for the part of the leave period that the increased rate 25
applies to; or 26
(b) decreased--the employee may be paid at the decreased rate for the 27
part of the leave period that the decreased rate applies to. 28
105 Section 200 (Service of casual employees)
s 204 158 s 204
Workplace Relations
(4) If satisfied an employer has, before an employee starts long service 1
leave, decreased the rate at which the employee is being paid for ordinary 2
time (the "usual rate") (being a higher rate than the ordinary rate) with 3
intent to avoid the employer's obligation under subsection (2), the 4
commission may order the employee's leave be paid for at the usual rate. 5
(5) If an order is made, subsection (2) applies to the employee as if the 6
employee were being paid the usual rate immediately before the employee 7
started the leave. 8
(6) In this section-- 9
"ordinary rate" means the rate payable for ordinary time under a relevant 10
industrial instrument. 11
for long service leave--casual employees 12
Payment
204.(1) The amount payable to a casual employee for long service leave 13
is worked out using the formula-- 14
number of hours x hourly rate. 15
(2) For the formula under subsection (6), the number of hours is worked 16
out using the formula-- 17
actual service x 13 18
52 15. 19
20
Example of subsection (2)--
21
An employee who worked 15 600 ordinary hours over a 15 year period and is being
22
paid an hourly rate of $10 would be entitled to be paid--
23
(15 600 x 13) x $10
24
( 52 15)
25
= 260 x $10
26
= $2 600.
(3) If a dispute arises between an employee who is paid at piecework 27
rates and the employer about the rate the employee should be paid for long 28
service leave, the commission may determine the payment. 29
(4) An employer and employee may agree on the times when and the 30
way in which the employee will be paid for long service leave. 31
(5) The commission may determine a matter relating to the payment that 32
s 205 159 s 205
Workplace Relations
the employer and employee can not agree on. 1
(6) An amount payable for long service leave becomes payable at a time 2
agreed between the employer and the employee or, if they can not agree, 3
determined by the commission. 4
(7) In this section-- 5
"actual service" means the total ordinary hours actually worked by an 6
employee during the period of continuous service to which the long 7
service leave entitlement relates. 8
"casual employee" means an employee mentioned in section 200(1).106 9
"hourly rate" means the hourly rate for ordinary time payable to the 10
employee on the day-- 11
(a) if the employee takes the long service leave--the employee starts 12
the leave; or 13
(b) otherwise--immediately before the entitlement becomes payable. 14
"number of hours" means the number of hours for which payment must 15
be made for long service leave. 16
instead of long service leave 17
Payment
205.(1) An employer must not make, and an employee must not accept, 18
payment instead of long service leave except on termination of an 19
employee's employment. 20
Maximum penalty--40 penalty units. 21
(2) Subsection (3) applies if an employee entitled to long service leave 22
dies-- 23
(a) before taking the leave; or 24
(b) after starting, but before finishing, the leave. 25
(3) Unless the amount has been already paid to the employee who has 26
died, the employer must pay the employee's legal personal representative 27
the amount payable for long service leave for-- 28
106 Section 200 (Service of casual employees)
s 206 160 s 206
Workplace Relations
(a) the employee's entitlement to long service leave; or 1
(b) the part of the entitlement for which payment has not been made. 2
(4) If an amount payable under subsection (3) is not paid, the employee's 3
legal personal representative or an inspector may, without limiting another 4
way of recovery, recover the amount under section 423(1) and (3)107 as 5
unpaid wages. 6
on re-employment of employee during long service leave 7
Inquiry
206.(1) This section applies if-- 8
(a) an employee's service with an employer is terminated by the 9
employer or the employee; and 10
(b) the employer pays the employee for all or any long service leave 11
to which the employee is entitled; and 12
(c) the employer re-employs the employee within a period, 13
commencing on the termination date, equal to the period of long 14
service leave for which payment was made. 15
(2) On application by an inspector or an organisation of which the 16
employee is a member, a magistrate may inquire into the matter.. 17
(3) If satisfied the employer and employee arranged the termination, 18
payment and re-employment to avoid the employee taking all or any long 19
service leave, the magistrate may make the order the magistrate considers 20
appropriate. 21
(4) In making the order, the magistrate must consider the object of this 22
part that long service leave is to taken by an employee in accordance with 23
the employee's entitlement. 24
(5) A person must not enter into an arrangement mentioned in 25
subsection (3). 26
Maximum penalty--16 penalty units. 27
107 Section 423 (Recovery of wages etc.)
s 207 161 s 209
Workplace Relations
of certain exemptions 1
Recognition
207.(1) The provisions of this part that provide for long service leave for 2
employees do not apply to an employer if-- 3
(a) the commission has exempted the employer, under the Industrial 4
Conciliation and Arbitration Act 1961, from the application of 5
long service leave provisions in that Act or an award; and 6
(b) the exemption is in force. 7
(2) On application, the commission may revoke an exemption. 8
may be "employer" and "employee" 9
Person
208. If in performing duties in a calling a person is an employee, the 10
person is entitled to long service leave as prescribed under this part despite 11
the person being, by definition for this Act, an employer because of-- 12
(a) the person's engagement in the calling; or 13
(b) the position the person holds in the calling. 14
in apprenticeship or traineeship 15
Service
209.(1) This section applies if an employer continues to employ an 16
apprentice or trainee (the "employee") on the completion of the 17
apprenticeship or traineeship. 18
(2) The period of apprenticeship or traineeship must be taken into account 19
in determining the length of the employee's continuous service with the 20
employer. 21
(3) An employer who re-employs the employee within 3 months after 22
completion of the employee's apprenticeship or traineeship is taken to have 23
continued to employ the employee on completion. 24
s 210 162 s 212
Workplace Relations
ART 5--OTHER LEAVE 1
P
leave accrued during apprenticeship or traineeship 2
Annual
210.(1) This section applies if an employer continues to employ an 3
apprentice or trainee (the "employee") on completion of the apprenticeship 4
or traineeship. 5
(2) Any annual leave not taken during the apprenticeship or traineeship 6
accrues. 7
(3) However, unless the commission otherwise determines, in working 8
out the amount of accrued annual leave-- 9
(a) a limitation of the amount imposed under the Vocational 10
Education, Training and Employment Act 1991 must be taken 11
into account; and 12
(b) a limitation of the amount imposed by the relevant industrial 13
instrument must not be taken into account. 14
(4) This section does not affect an employee's entitlement to annual 15
leave. 16
leave accrued during apprenticeship or traineeship 17
Sick
211.(1) This section applies if an employer continues to employ an 18
apprentice or trainee (the "employee") on the completion of the 19
apprenticeship or traineeship. 20
(2) Sick leave accrued by the employee before the completion must be 21
taken into account to work out the employee's entitlement to be paid for 22
time absent from work through illness during the continued employment. 23
(3) An employer who re-employs the employee within 3 months after 24
completion of the employee's apprenticeship or traineeship is taken to have 25
continued to employ the employee on the completion. 26
of employment for sick leave 27
Continuity
212.(1) In working out an employee's entitlement to sick leave-- 28
(a) if the calling in which the employee is employed is transferred 29
s 212 163 s 212
Workplace Relations
from the employer to another employer-- 1
(i) the transfer does not break the employee's continuity of 2
employment; and 3
(ii) the periods of the employee's employment with each of the 4
employers must be taken into account to work out the length 5
of the employee's continuous employment; and 6
(b) the employee's employment by an employer who becomes a 7
member of a partnership and employment of the employee with 8
the partnership is employment with the same employer; and 9
(c) employment by a partnership and-- 10
(i) employment by 1 or more of the former partners, on 11
dissolution of the partnership; or 12
(ii) employment by the partnership as reconstituted, on 13
dissolution of the partnership; 14
is employment with the same employer; and 15
(d) the continuity of employment of the employee in a calling 16
transferred from the employer to another employer is not broken 17
if-- 18
(i) the employee is dismissed by-- 19
(A) within 1 month before the date when the calling is 20
transferred--the employer; or 21
(B) on the date when the calling is transferred--either 22
employer; and 23
(ii) within 3 months after the dismissal, the employee is 24
re-employed by the other employer; and 25
(e) employment with a corporation or its subsidiary that would 26
constitute unbroken continuous employment with an employer if 27
the corporations were the same employer is taken to be 28
continuous employment with the same employer. 29
(2) In this section-- 30
"dismiss" includes stand down. 31
"subsidiary" means a corporation that would be taken to be a subsidiary 32
s 213 164 s 214
Workplace Relations
under the Corporations Law, whether or not the Corporations Law 1
applies in a particular case. 2
HAPTER 5--DISMISSALS 3
C
PART 1--OBJECTS AND INTERPRETATION 4
of ch 5 5
Objects
213. The objects of this chapter are-- 6
(a) to establish procedures for deciding whether a dismissal is 7
unlawful; and 8
(b) to provide for appropriate remedies and sanctions if a dismissal is 9
found to be unlawful; and 10
(c) by establishing the procedures, remedies and sanctions, to help 11
give effect to-- 12
(i) the Termination of Employment Convention; and 13
(ii) the Discrimination (Employment and Occupation) 14
Convention; and 15
(iii) the Family Responsibilities Convention; and 16
(d) by the procedures and remedies, to ensure both the employer and 17
employee concerned in an application about a dismissal are given 18
a `fair go all round'; and 19
(e) to provide for protection of injured employees. 20
of expressions 21
Meaning
214. If an expression used in this chapter is also used in the Termination 22
of Employment Convention, it has the same meaning as in the Convention. 23
s 215 165 s 216
Workplace Relations
laws 1
Complementary
215.(1) For the dismissal of a federal award employee, the 2
Commonwealth provisions apply as a law of this State, in place of this 3
chapter, to enable functions to be performed or powers to be exercised by-- 4
(a) the Australian commission; or 5
(b) the Federal Court of Australia, in connection with orders of the 6
Australian commission made in the exercise of the 7
Commonwealth provisions. 8
(2) In this section-- 9
"Commonwealth provisions" means the Commonwealth Act, part VIA, 10
division 3, subdivision B. 11
"federal award employee" means a federal award employee within the 12
meaning of the Commonwealth Act, section 170CD. 13
of employees from part 14
Exclusion
216.(1) This chapter does not apply to an apprentice or trainee-- 15
(a) whose service is terminated under the Vocational Education, 16
Training and Employment Act 1991, section 71;108 or 17
(b) whose training agreement is cancelled under the Vocational 18
Education, Training and Employment Act 1991, sections 96 19
or 97.109 20
(2) Part 2 110 applies to casual employees other than those excluded under 21
a regulation. 22
(3) Part 3111 does not apply to-- 23
(a) a casual employee; or 24
(b) an employee engaged by the hour or day; or 25
108 Section 71 (Trainee probation)
109 Section 96 (Discipline) or 97 (Cancellation of training agreement on request)
110 Part 2 (Unlawful dismissals)
111 Part 3 (Requirements for dismissal)
s 217 166 s 217
Workplace Relations
(c) an employee engaged for a specific period or task. 1
(4) Sections 227, 228 and 229112 do not apply to an employee with less 2
than 1 year of continuous service. 3
(5) A regulation may exclude particular employees from the operation of 4
particular provisions of this chapter. 5
ART 2--UNLAWFUL DISMISSALS 6
P
dismissal is unlawful 7
When
217. A dismissal is unlawful if-- 8
(a) it is harsh, unjust or unreasonable; or 9
(b) it is for any of the following reasons (an "invalid reason")-- 10
(i) temporary absence from work because of illness or injury 11
(other than an injury within the meaning of part 5113); 12
(ii) seeking office as, or acting or having acted in the capacity of, 13
an employees' representative; 14
(iii) membership of an employee organisation or participation in 15
the organisation's activities outside working hours or, with 16
the employer's consent, during working hours; 17
(iv) non-membership of an employee organisation; 18
(v) filing a complaint, or taking part in a proceeding, against an 19
employer involving alleged violation of laws or recourse to 20
competent administrative authorities; 21
(vi) the making by anyone, or a belief that anyone has made or 22
may make-- 23
112 Sections 227 (Orders giving effect to articles 12 and 13 of Convention),
228 (Orders if employer does not consult about proposed dismissals) and
229 (Employer must notify Commonwealth employment service of proposed
dismissals)
113 Part 5 (Protection of injured employees)
s 218 167 s 219
Workplace Relations
(A) a public interest disclosure under the Whistleblowers 1
Protection Act 1994; or 2
(B) a complaint under the Health Rights Commission Act 3
1991; 4
(vii) refusing to negotiate for, make, sign, extend, amend or 5
terminate a QWA; 6
(viii)family responsibilities; 7
(ix) absence from work during parental leave; 8
(x) a reason mentioned in section 421(2);114 9
(xi) discrimination that would contravene the 10
Anti-Discrimination Act 1991. 11
to remedy unlawful dismissal 12
Application
218.(1) If a dismissed employee alleges the dismissal was unlawful, an 13
application may be made to the commission for the dismissal to be dealt 14
with under this part. 15
(2) An application may be made by-- 16
(a) an employee; or 17
(b) with the employee's consent--an organisation whose rules entitle 18
it to represent the employee's industrial interests. 19
(3) An application must be made within-- 20
(a) 21 days after the dismissal takes effect; or 21
(b) a further period the commission allows on an application made 22
during or after the 21 days. 23
before application heard 24
Conciliation
219.(1) Before the commission hears an application under section 218, 25
the commission must hold a conference to attempt to settle the matter by 26
conciliation. 27
114 Section 421 (Contract not to stipulate mode of spending wages)
s 220 168 s 220
Workplace Relations
(2) The commission may summons the applicant or employer to attend 1
the conference at a stated time and place. 2
(3) If the commission is satisfied all reasonable attempts to settle the 3
matter by conciliation are, or are likely to be, unsuccessful, it-- 4
(a) must inform the parties to the conciliation of-- 5
(i) that fact; and 6
(ii) the possible consequences of further proceeding on the 7
application; and 8
(b) may recommend the application be discontinued, whether or not it 9
also recommends another way of resolving the matter. 10
(4) The application lapses if the applicant has not, within 6 months after 11
the applicant has been informed by the commission under subsection (3)-- 12
(a) taken any action in relation to the application; or 13
(b) discontinued the application. 14
(5) Before an order is made under section 222,115 the parties may-- 15
(a) seek further conciliation of the matter; or 16
(b) settle the matter. 17
(6) The chief commissioner may delegate the functions of the 18
commission under this section to the registrar or an assistant registrar. 19
to consider in deciding if dismissal is harsh, unjust or 20
What
unreasonable 21
220. In deciding whether a dismissal was harsh, unjust or unreasonable, 22
the commission must consider-- 23
(a) whether the employee was notified of the reason for dismissal; 24
and 25
(b) whether the dismissal related to-- 26
(i) the operational requirements of the employer's undertaking, 27
establishment or service; or 28
115 Section 222 (Remedies and sanctions for unlawful dismissal)
s 221 169 s 222
Workplace Relations
(ii) the employee's conduct, capacity or performance; and 1
(c) if the dismissal relates to the employee's conduct, capacity or 2
performance-- 3
(i) whether the employee had been warned about the conduct, 4
capacity or performance; or 5
(ii) whether the employee was given an opportunity to respond 6
to the allegation about the conduct, capacity or performance; 7
and 8
(d) any other matters the commission considers relevant. 9
nus of proof 10
O
221. The onus is on-- 11
(a) for an application that alleges the dismissal was unlawful because 12
it was harsh, unjust or unreasonable--the employee to prove the 13
dismissal was harsh, unjust or unreasonable; or 14
(b) for an application that alleges the dismissal was unlawful because 15
it was for an invalid reason--the employer to prove the dismissal 16
was not for an invalid reason. 17
and sanctions for unlawful dismissal 18
Remedies
222.(1) If the commission is satisfied an employer unlawfully dismissed 19
an employee, it may order-- 20
(a) the employee be reinstated, on conditions at least as favourable as 21
the conditions on which the employee was employed immediately 22
before dismissal, by the employer-- 23
(i) reappointing the employee to the position in which the 24
employee was employed immediately before dismissal; or 25
(ii) appointing the employee to another position; or 26
(b) if the commission considers reinstatement would be 27
inappropriate--the employer pay the employee an amount of 28
compensation decided by the commission. 29
(2) If the commission orders the employee be reinstated, it may also-- 30
s 222 170 s 222
Workplace Relations
(a) make an order it considers necessary to maintain the continuity of 1
the employee's employment; and 2
(b) order the employer to pay the employee the remuneration lost, or 3
likely to have been lost, by the employee because of the dismissal, 4
after taking into account any employment benefits or wages 5
received by the employee since the dismissal; and 6
(c) order the employee to repay any amount paid to the employee by 7
or for the employer on the dismissal. 8
(3) When deciding the amount of compensation payable under 9
subsection (1)(b), the commission-- 10
(a) must not award an amount that is more than the remuneration the 11
employer would have been liable to pay the employee for the 12
6 months immediately after the dismissal, paid at the rate the 13
employee received immediately before the dismissal; and 14
(b) may take into account any amount paid to the employee by or for 15
the employer on the dismissal. 16
(4) The commission must not make an order under subsection (1) or (2) 17
unless, considering all the circumstances of the matter, it is satisfied the 18
remedy ordered is appropriate. 19
(5) If satisfied an employer has dismissed an employee for an invalid 20
reason, the commission may (in addition to an order under subsections (1) 21
and (2)) order the employer to pay the employee an amount of not more 22
than the monetary value of 135 penalty units. 23
(6) Neither section 219116 nor this section limits the commission's power 24
to make an interim or interlocutory order. 25
(7) To avoid doubt, an order under subsection (1)(b), (2)(b) or (c), or (5) 26
may allow payment to be made in specified instalments. 27
(8) In this section-- 28
"circumstances", for an application alleging the dismissal was harsh, 29
unjust or unreasonable, includes-- 30
(a) if raised by the employer--the viability of the employer's 31
116 Section 219 (Conciliation before application heard)
s 223 171 s 225
Workplace Relations
undertaking, establishment or service if the order were made; and 1
(b) the length of the employee's employment with the employer. 2
orders if employer fails to reinstate 3
Further
223.(1) If an employer wilfully fails to comply with an order to reinstate 4
an employee, the commission may-- 5
(a) further order the employer to pay the employee-- 6
(i) an amount of not more than the monetary value of 7
50 penalty units; and 8
(ii) an amount as remuneration for lost wages; and 9
(b) make further orders until the employer complies with the order 10
under section 222. 11
(2) This section does not affect another provision of this Act allowing a 12
proceeding to be taken against the employer. 13
of order on leave 14
Effect
224. If the commission makes an order under section 222(2)(a),117 the 15
interruption to the employee's continuity of employment or service caused 16
by the dismissal must be disregarded when calculating the employee's 17
entitlement to annual, sick or long service leave. 18
osts 19
C
225.(1) The commission may order a party to an application under 20
section 218118 to pay costs incurred by another party if satisfied the party-- 21
(a) made the application frivolously, vexatiously or without 22
reasonable cause; or 23
(b) caused costs to be incurred by the other party because of an 24
unreasonable act or omission connected with the conduct of the 25
117 Section 222 (Remedies and sanctions for unlawful dismissal)
118 Section 218 (Application to remedy unlawful dismissal)
s 226 172 s 226
Workplace Relations
application. 1
(2) An application for an order for costs must be made within 21 days 2
after-- 3
(a) the commission decides the application; or 4
(b) the application is discontinued or lapses. 5
(3) In this section-- 6
"costs" includes legal and professional costs and disbursements and 7
witness expenses, whether or not the commission has certified under 8
section 350.119 9
PART 3--REQUIREMENTS FOR DISMISSAL 10
of dismissal or compensation 11
Notice
226.(1) An employer may dismiss an employee only if the employee-- 12
(a) has been-- 13
(i) given the period of notice required by subsection (2); or 14
(ii) paid compensation; or 15
(b) engages in misconduct of a type that would make it unreasonable 16
to require the employer to continue the employment during the 17
notice period. 18
(2) 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
119 Section 350 (Costs)
s 226 173 s 226
Workplace Relations
(b) increased by 1 week if the employee-- 1
(i) is over 45 years old; and 2
(ii) has completed at least 2 years of continuous service with the 3
employer. 4
(3) A regulation may prescribe matters that must be disregarded when 5
working out continuous service under subsection (2). 6
(4) The compensation must at least equal the total of the amounts the 7
employer would have been liable to pay the employee if the employee's 8
employment had continued until the end of the required notice period. 9
(5) The total must be worked out on the basis of-- 10
(a) the ordinary hours worked by the employee; and 11
(b) the amounts payable to the employee for the hours, including (for 12
example) allowances, loadings and penalties; and 13
(c) any other amounts payable under the employee's employment 14
contract. 15
(6) If an employer dismisses an employee, to whom subsection (1)(a) 16
applies, without giving the required notice or paying the required 17
compensation-- 18
(a) on an application under section 218120 --the commission may 19
order the employer to pay the employee the compensation that the 20
employer was required to pay under subsection (4); or 21
(b) otherwise--a magistrate may order the employer to pay the 22
employee the compensation that the employer was required to pay 23
under subsection (4). 24
(7) An application for an order under subsection (6)(b) may be made 25
by-- 26
(a) an employee who has been dismissed; or 27
(b) with the employee's consent--an organisation whose rules entitle 28
it to represent the employee's industrial interests; or 29
(c) an inspector. 30
120 Section 218 (Application to remedy unlawful dismissal)
s 227 174 s 227
Workplace Relations
(8) The application must be made within 6 years after the day on which 1
the employee is dismissed. 2
(9) A regulation may exclude from the operation of this section 3
dismissals happening in specified circumstances that relate to the transfer of 4
the employer's business. 5
giving effect to articles 12 and 13 of Convention 6
Orders
227.(1) The commission may make an order giving effect to the 7
requirements about the dismissal of employees under-- 8
(a) article 12 of the Termination of Employment Convention, as far 9
as it is relates to a severance allowance or other separation 10
benefits; or 11
(b) article 13 of the Termination of Employment Convention. 12
(2) When making an order giving effect to article 13, the commission 13
must limit the order's application to cases where an employer decides to 14
dismiss at least a specified number of employees (of at least 15). 15
(3) An employer must not dismiss an employee in contravention of an 16
order under subsection (1). 17
(4) If an employer dismisses an employee in contravention of the order, 18
the commission may-- 19
(a) make any of the orders it may make under section 222(1) 20
or (2);121 or 21
(b) order the employer to pay the employee an amount of not more 22
than the monetary value of 135 penalty units. 23
(5) The commission may make an order under this section only if it has 24
received an application from-- 25
(a) an employee; or 26
(b) an organisation whose rules entitle it to represent the employee's 27
industrial interests. 28
(6) An application for an order under subsection (4) must be made 29
121 Section 222 (Remedies and sanctions for unlawful dismissal)
s 228 175 s 228
Workplace Relations
within-- 1
(a) 21 days after the dismissal takes effect; or 2
(b) a further period the commission allows on an application made 3
during or after the 21 days. 4
if employer does not consult about proposed dismissals 5
Orders
228.(1) An employer who decides to dismiss 15 or more employees for 6
an economic, technological or structural reason must, as soon as practicable 7
after making the decision, and before dismissing any of the employees-- 8
(a) notify each employee organisation, of which any of the 9
employees is a member, of-- 10
(i) the dismissals; and 11
(ii) the reasons for the dismissals; and 12
(iii) the number and categories of employees; and 13
(iv) the time when, or the period over which, the employer 14
intends to carry out the dismissals; and 15
(b) give each organisation an opportunity to consult with the 16
employer on ways to-- 17
(i) avoid or minimise the dismissals; and 18
(ii) minimise the adverse effects of the dismissals (for example, 19
by finding alternative employment). 20
(2) The commission may make the orders it considers appropriate to put 21
employees dismissed in contravention of subsection (1), and their 22
organisations, in the same position (as nearly as can be done) as if the 23
employer had-- 24
(a) if subsection (1)(a) was contravened--informed the organisation; 25
and 26
(b) if subsection (1)(b) was contravened--given the organisation an 27
opportunity to consult. 28
(3) Subsections (1) and (2) do not apply to an organisation if the 29
employer could not reasonably be expected to have known (at the time of 30
the decision) that the organisation's rules entitled it to represent the industrial 31
s 229 176 s 229
Workplace Relations
interests of the dismissed employees. 1
(4) The commission may make an order only if it has received an 2
application from an employee or organisation that is to be affected by the 3
order. 4
(5) An application must be made within-- 5
(a) 21 days after the dismissal takes effect; or 6
(b) a further period the commission allows on an application made 7
during or after the 21 days. 8
must notify Commonwealth employment service of 9
Employer
proposed dismissals 10
229.(1) This section applies if an employer decides to dismiss 15 or 11
more employees for reasons of an economic, technological, structural or 12
similar nature. 13
(2) The employer may dismiss the employees only if the employer, as 14
soon as practicable after making the decision, notifies the Commonwealth 15
employment service of-- 16
(a) the dismissals; and 17
(b) the reasons for the dismissals; and 18
(c) the number and categories of employees; and 19
(d) the time when, or the period over which, the employer intends to 20
carry out the dismissals. 21
(3) If satisfied an employer has dismissed, or proposes to dismiss, an 22
employee contrary to subsection (2), the commission may make either or 23
both of the following orders-- 24
(a) an order imposing on the employer a penalty of not more than 25
16 penalty units; 26
(b) an order declaring the dismissal ineffective until the employer has 27
complied with subsection (2). 28
(4) An application for an order may be made by-- 29
(a) a dismissed employee; or 30
s 230 177 s 230
Workplace Relations
(b) an organisation whose rules entitle it to represent the employee's 1
industrial interests; or 2
(c) an inspector. 3
(5) An application must be made within-- 4
(a) 21 days after the dismissal takes effect; or 5
(b) a further period the commission allows on an application made 6
during or after the 21 days. 7
(6) The commission may order that a penalty, or part of a penalty, be 8
paid to any person who may have made the application (other than an 9
officer or employee of the State or a public service officer). 10
(7) Any part of the penalty that is ordered to be paid to the person must 11
first be paid to the person. 12
(8) The remainder of the penalty must then be paid to the consolidated 13
fund. 14
(9) A contravention of subsection (2) is not an offence. 15
(10) In this section-- 16
"Commonwealth employment service" means the Commonwealth 17
department or agency whose primary responsibility is helping 18
unemployed people to find work. 19
ART 4--OTHER DISMISSALS 20
P
dismissed in December, re-employed in January 21
Employee
230.(1) This section applies to an employee (other than a casual 22
employee within the meaning of the relevant industrial instrument) who-- 23
(a) is dismissed by an employer during December; and 24
(b) is re-employed by the employer before the end of the next 25
January; and 26
(c) was employed by the employer for a continuous period of at least 27
s 231 178 s 232
Workplace Relations
2 weeks immediately before being dismissed. 1
(2) The employer must pay the employee at the ordinary rate payable to 2
the employee immediately before the dismissal for the Christmas Day, 3
Boxing Day, and New Year's Day public holidays between the dismissal 4
and the re-employment. 5
(3) In this section-- 6
"dismiss" includes stand-down. 7
stand-down of employee 8
Permissible
231.(1) An employer may stand-down an employee without pay on a 9
day, or for part of a day, when the employee can not be usefully employed 10
because of something that happened-- 11
(a) for which the employer is not responsible; or 12
(b) over which the employer has no control. 13
(2) This section applies despite another provision of this Act or an 14
industrial instrument. 15
(3) This section does not apply to an apprentice or trainee. 16
ART 5--PROTECTION OF INJURED EMPLOYEES 17
P
for pt 5 18
Definitions
232. In this part-- 19
"dismiss" an injured employee includes a case where-- 20
(a) an unreasonable employment condition designed to make the 21
employee leave the employment is imposed on the employee; and 22
(b) the employee leaves the employment. 23
"injured employee" means an employee who receives an injury. 24
"injury" means an injury within the meaning of the Workers' 25
s 233 179 s 234
Workplace Relations
Compensation Act 1990 or WorkCover Act 1996 for which workers' 1
compensation is payable under that Act. 2
to be paid for the day employee injured 3
Wages
233.(1) An injured employee is entitled to be paid full wages for the day 4
when the injury happens. 5
(2) Subsection (1) applies despite an industrial instrument or 6
employment contract. 7
of injured employees 8
Reinstatement
234.(1) This section applies if an injured employee is dismissed because 9
of unfitness for employment in a position because of the injury. 10
(2) The employee may apply to the employer, within 21 days after the 11
dismissal, for reinstatement to the employee's former position. 12
(3) The employee must give the employer a doctor's certificate that 13
certifies the employee is fit for employment in the former position. 14
(4) If the employer fails to immediately reinstate the employee, the 15
following persons may apply to the commission for a reinstatement order-- 16
(a) the employee; 17
(b) an employee organisation of which the employee is a member, 18
with the employee's consent. 19
(5) If the commission is satisfied the employee is fit for employment in 20
the former position, the commission may order the employer to reinstate the 21
employee. 22
(6) The order may specify terms of reinstatement, including, for 23
example, the day the reinstatement is to take effect. 24
(7) The commission may order reinstatement even if the employee 25
applied to the employer to be reinstated more than 21 days after the 26
dismissal, if the commission considers it would be appropriate in the 27
circumstances. 28
(8) In this section-- 29
"former position" of an injured employee means, at the employee's 30
s 235 180 s 237
Workplace Relations
option-- 1
(a) the position from which the injured employee was dismissed; or 2
(b) if the employee was transferred to a less advantageous position 3
before dismissal--the position held by the employee when the 4
employee became unfit for employment. 5
an offence in certain cases 6
Dismissal
235.(1) An employer must not dismiss an injured employee, within 7
3 months after the employee becomes unfit, 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
of employee's rights 13
Preservation
236.(1) This part does not affect another right of a dismissed employee 14
under an Act or law. 15
(2) This part can not be affected by a contract or agreement. 16
ART 6--GENERAL 17
P
does not limit other rights 18
Chapter
237. This chapter does not limit a right a person or organisation may 19
otherwise have to-- 20
(a) appeal against a dismissal; or 21
(b) have an industrial instrument or order about a dismissal made. 22
s 238 181 s 239
Workplace Relations
instruments and orders 1
Inconsistent
238. An industrial instrument or order that is inconsistent with an order 2
under this chapter does not apply to the extent the inconsistency 3
detrimentally affects the rights of employees concerned. 4
CHAPTER 6--INDUSTRIAL DISPUTES 5
ART 1--NOTICE OF INDUSTRIAL DISPUTE 6
P
of industrial dispute 7
Notice
239.(1) Subsection (2) applies if an industrial dispute-- 8
(a) exists between-- 9
(i) an employer organisation or employer; and 10
(ii) an employee organisation or employee; and 11
(b) remains unresolved after the parties have genuinely attempted to 12
settle the dispute. 13
(2) Each party to the dispute must immediately give notice of the dispute 14
to-- 15
(c) if the dispute exists within the city of Brisbane--the registrar; or 16
(d) elsewhere--the registrar or nearest magistrate. 17
(3) The notice-- 18
(a) may be given by letter, telex, fax, electronic mail, or other means 19
of written communication; and 20
(b) must state-- 21
(i) the names of the parties to the dispute; and 22
(ii) the place where the dispute exists; and 23
(iii) the subject matter of the dispute. 24
s 240 182 s 240
Workplace Relations
(4) If the Minister is aware an industrial dispute exists, the Minister may 1
notify a commissioner or the registrar of the dispute. 2
ART 2--ACTION FOR SETTLING INDUSTRIAL 3
P
DISPUTES 4
on industrial dispute 5
Action
240.(1) This section applies if-- 6
(a) notice of a dispute has been given by a party under 7
section 239(2);122 or 8
(b) notice of a dispute has been given by the Minister under 9
section 239(4) and a commissioner considers it is in the public 10
interest to take action under this section; or 11
(c) whether or not a notice has been given under section 239--a 12
commissioner considers it is in the public interest to take action 13
under this section. 14
(2) A commissioner may take the steps the commissioner considers 15
appropriate for the prevention or prompt settlement of the dispute, by-- 16
(a) conciliation in the first instance; and 17
(b) if the commissioner considers conciliation has failed and the 18
parties are unlikely to resolve the dispute--arbitration. 19
(3) Without limiting subsection (2), the commissioner may-- 20
(a) make orders, or give directions, of an interlocutory nature; or 21
(b) remit the dispute, or part of it, to a magistrate for-- 22
(i) hearing and decision; or 23
(ii) the exercise of the magistrate's powers under this Act for the 24
prevention or prompt settlement of the dispute; or 25
122 Section 239 (Notice of industrial dispute)
s 240 183 s 240
Workplace Relations
(c) exercise the commission's powers under section 291 123 (whether 1
or not application under that section has been made) to order an 2
interim injunction; or 3
(d) make another order or exercise another power the commissioner 4
considers appropriate for the prevention or prompt settlement of 5
the dispute. 6
(4) A magistrate who receives a notice under section 239(2)-- 7
(a) must immediately notify the registrar of the particulars stated in 8
the notice and, if the magistrate considers it appropriate, call a 9
compulsory conference under section 243;124 and 10
(b) if the parties agree--must immediately hear and decide the 11
dispute or exercise the magistrate's powers for the prevention or 12
prompt settlement of the dispute; and 13
(c) may or, if directed by the commission to do so, must remit the 14
dispute to the commission at any stage of a proceeding for the 15
dispute; and 16
(d) must keep the registrar informed of the progress and outcome of 17
a proceeding for the dispute. 18
(5) A magistrate to whom a matter is remitted by a commissioner-- 19
(a) must immediately hear and decide the dispute or exercise the 20
magistrate's powers for the prevention or prompt settlement of 21
the dispute; and 22
(b) may, or, if directed by the commissioner to do so, must remit the 23
dispute to the commissioner at any stage of a proceeding for the 24
dispute; and 25
(c) must keep the commissioner informed of the progress and 26
outcome of a proceeding for the dispute. 27
(6) For a proceeding for the dispute-- 28
(a) the commissioner or magistrate may name a party to the dispute 29
as having carriage of the proceeding; and 30
123 Section 291 (Power to grant injunctions)
124 Section 243 (Compulsory conference)
s 241 184 s 242
Workplace Relations
(b) the party named has the carriage of the proceeding accordingly. 1
(7) This section does not affect the operation of an industrial instrument 2
that-- 3
(a) imposes a duty on a party to the instrument in relation to 4
industrial disputes; or 5
(b) confers a power or imposes a duty on a magistrate. 6
by consent 7
Recommendation
241.(1) This section applies if-- 8
(a) the commission is exercising powers of conciliation for a 9
particular dispute; and 10
(b) all the parties ask the commission to conduct a hearing and make 11
recommendations about particular aspects of the dispute on which 12
they are unable to reach agreement (which may be all aspects of 13
the dispute); and 14
(c) the commission is satisfied that all parties-- 15
(i) have made a genuine attempt to agree about those aspects of 16
the dispute; and 17
(ii) have agreed to comply with the commission's 18
recommendation. 19
(2) The commission must conduct a hearing and make recommendations 20
about those aspects of the dispute. 21
(3) This section does not prevent the commission from making 22
recommendations in other circumstances. 23
by commissioner or magistrate 24
Mediation
242. A commissioner or magistrate may act as mediator in an industrial 25
cause, whether or not it is within the jurisdiction of the commission or a 26
magistrate-- 27
(a) on the request of the parties directly involved in the cause; or 28
(b) if it appears mediation is desirable in the public interest. 29
s 243 185 s 244
Workplace Relations
conference 1
Compulsory
243.(1) This section applies if a commissioner or magistrate taking action 2
under section 240125 considers that holding a conference is desirable to 3
prevent or settle the industrial dispute. 4
(2) The commissioner or magistrate may summons a person to attend a 5
conference at a stated time and place. 6
(3) A person may be summoned even though not directly involved in the 7
dispute, if the commissioner or magistrate considers the person's presence 8
would be conducive to the prevention or prompt settlement of the dispute. 9
(4) A person summoned must-- 10
(a) attend the conference at the stated time and place; and 11
(b) continue to attend as directed by the presiding commissioner or 12
magistrate. 13
Maximum penalty--40 penalty units. 14
(5) The person is entitled to be paid by the State an amount certified by 15
the commissioner or magistrate as reasonable compensation for the 16
person's expenses and loss of time. 17
(6) At the discretion of the commissioner or magistrate, a conference 18
may be held-- 19
(a) in public or private; or 20
(b) partly in public and partly in private. 21
PART 3--BALLOTS 22
ballot on strike action 23
Secret
244.(1) This section applies if-- 24
(a) a strike happens; or 25
125 Section 240 (Action on industrial dispute)
s 245 186 s 245
Workplace Relations
(b) the commission, or a person applying to the commission, 1
considers a strike is likely to happen. 2
(2) The commission may act under subsection (4)-- 3
(a) of its own initiative; or 4
(b) on application by an employer or employer organisation; or 5
(c) on application by or on behalf of 5% of the employees engaged in 6
or on the calling, enterprise, establishment or project concerned, 7
or by 250 of the employees, whichever is less, but being, in any 8
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 or a magistrate to conduct a 14
secret ballot126 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 or magistrate must publish the result of the secret ballot 20
in a newspaper circulating in the locality concerned. 21
of ballot adverse to strike 22
Effect
245.(1) Subsection (2) applies if-- 23
(a) when a secret ballot was conducted under section 244(4)127-- 24
(i) a strike exists; or 25
(ii) a strike appeared likely to happen, and happens for the same 26
126 See section 301 (Conducting a secret ballot) for the way a secret ballot is
conducted.
127 Section 244 (Secret ballot on strike action)
s 246 187 s 246
Workplace Relations
issue within 1 month after the ballot result is published under 1
section 244(5); and 2
(b) the ballot shows that a majority of employees or members who 3
voted in the ballot is not in favour of the strike. 4
(2) The registrar or magistrate who conducted the ballot must advertise a 5
date (the "end date"), not more than 7 days after the date of publication, on 6
or before which the employees or members who are on strike must 7
discontinue the strike. 8
(3) The advertisement-- 9
(a) must be in a newspaper circulating in the locality concerned; and 10
(b) may be included in the advertisement published under 11
section 244(5). 12
(4) The employees or members must discontinue the strike on or before 13
the end date. 14
(5) An employee or member who does not is taken to have terminated, 15
from the end date, the employment in which the employee or member was 16
engaged when the strike commenced, unless the employee or member has a 17
reasonable excuse. 18
(6) Disagreement by a person with the result of the ballot is not a 19
reasonable excuse. 20
ART 4--INDUSTRIAL ACTION 21
P
in industrial action 22
Nonparticipation
246.(1) An employee organisation or someone else (whether or not an 23
officer, employee or member of the organisation) must not-- 24
(a) incite, advise or encourage a person to act to the prejudice of an 25
employee who did not take part in a strike; or 26
(b) impose or threaten to impose a penalty, forfeiture or disability on 27
an employee, or member of an employee organisation, because 28
the employee or member did not take part in a strike. 29
s 247 188 s 248
Workplace Relations
Maximum penalty--40 penalty units. 1
(2) An employer organisation or someone else (whether or not an officer, 2
employee or member of the organisation) must not-- 3
(a) incite, advise or encourage a person to act to the prejudice of an 4
employer who did not take part in a lockout; or 5
(b) impose or threaten to impose a penalty, forfeiture or disability on 6
an employer, or member of an employer organisation, because 7
the employer or member did not take part in a lockout. 8
Maximum penalty--40 penalty units. 9
(3) If, in a proceeding for an offence under subsection (1)(b) or (2)(b), it 10
is proved that an imposition or threat was made on or to a person who did 11
not take part in a strike or lockout, it is to be presumed that the reason for 12
the imposition or threat is the failure to take part, unless the contrary is 13
proved. 14
against agent's unauthorised actions 15
Indemnity
247. An organisation or association of persons is not liable for anything 16
said or done by its agent, during or in connection with industrial action, if-- 17
(a) the agent acted without the knowledge of the governing body of 18
the organisation or association; and 19
(b) the governing body could not, by the exercise of reasonable 20
diligence, have prevented the action. 21
for strikes 22
Payments
248.(1) An employer must not pay an employee for a period when the 23
employee engages in a strike. 24
(2) An employee must not accept a payment from an employer who, by 25
making the payment, contravenes subsection (1).128 26
(3) An employee must not-- 27
128 See section 249 for the orders the commission may make for a contravention of
this section.
s 248 189 s 248
Workplace Relations
(a) make a claim for an employer to pay the employee for a period 1
when the employee engages in a strike; or 2
(b) organise or engage in, or threaten to organise or engage in, a strike 3
against an employer with intent to coerce the employer to make 4
the payment. 5
(4) An employee organisation, or an officer, member or employee of the 6
organisation, must not-- 7
(a) make a claim for an employer to pay an employee for a period 8
when the employee engages in a strike; or 9
(b) organise or engage in, or threaten to organise or engage in, a strike 10
against an employer with intent to coerce the employer to make 11
the payment. 12
(5) For subsection (4), action is taken to have been done by an 13
organisation if it is done by-- 14
(a) the organisation's management committee; or 15
(b) an officer, employee or agent of the organisation acting in that 16
capacity; or 17
(c) a member or group of members of the organisation acting under 18
the organisation's rules; or 19
(d) a member of the organisation, who performs the function of 20
dealing with an employer on behalf of the member and other 21
members of the organisation, acting in that capacity. 22
(6) Subsection (5)(c) and (d) does not apply if any of the following 23
persons has taken reasonable steps to prevent the action-- 24
(a) the organisation's management committee; 25
(b) a person authorised by the committee; 26
(c) an officer of the organisation. 27
(7) A contravention of subsection (3) or (4) is not an offence.129 28
129 See section 249 for the orders the commission may make for a contravention of
this section.
s 249 190 s 250
Workplace Relations
the commission may make 1
Orders
249.(1) An application may be made to the commission for orders under 2
this section for a contravention of section 248.130 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 248(3) or (4)--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 248 a 13
penalty of not more than 135 penalty units; 14
(b) an order requiring a person who contravenes section 248(3) or (4) 15
to pay an employer compensation of the amount the commission 16
considers appropriate; 17
(c) an injunction (including an interim injunction), and any other 18
order, the commission considers necessary to stop the 19
contravention or remedy its effects; 20
(d) another consequential order. 21
(5) The commission must not make an order requiring compensation to 22
be paid to an employer who contravenes section 248(1) for the 23
contravention. 24
not to deal with claims for payments for strikes 25
Commission
250.(1) The commission can not deal with a claim for the making of a 26
payment to employees for a period when the employees engage in a strike. 27
(2) Subsection (1) applies to a claim for a period before or after-- 28
130 Section 248 (Payments for strikes)
s 251 191 s 253
Workplace Relations
(a) the making of the claim; or 1
(b) the commencement of this section. 2
to refuse to work if imminent health or safety risk 3
Right
251. Nothing in this Act prevents an employee from refusing to perform 4
work if-- 5
(a) the refusal is based on a reasonable concern by the employee 6
about an imminent risk to his or her health or safety; and 7
(b) the employee does not unreasonably contravene a direction of his 8
or her employer to perform other available work (whether at the 9
same or another workplace) that is safe and appropriate for the 10
employee to perform. 11
HAPTER 7--INDUSTRIAL TRIBUNALS AND 12
C
REGISTRAR 13
ART 1--INDUSTRIAL COURT 14
P
Division 1--Industrial Court continued 15
16
Continuance
252. The Industrial Court (the "court"), as formerly established as a 17
superior court of record in Queensland, is continued in existence. 18
2--President 19
Division
of president 20
Appointment
253.(1) The Governor in Council may, by industrial gazette notice, 21
appoint a Supreme Court judge as president of the court. 22
s 254 192 s 255
Workplace Relations
(2) The president is appointed for the term specified in the notice. 1
(3) The president has, in addition to the president's judicial functions, 2
overall administrative control of the commission and the registrar's office. 3
president holds office 4
When
254.(1) The president holds office until-- 5
(a) the president's term of appointment ends; or 6
(b) the president turns 70; or 7
(c) the president stops being a Supreme Court judge. 8
(2) However, if the president stops holding office while hearing a matter, 9
the Governor in Council may, without reappointing the person as president, 10
continue the person in office for the time necessary to enable the hearing to 11
be completed. 12
(3) The person continued in office may exercise the jurisdiction and 13
powers of the court necessary or convenient for the hearing to be completed. 14
president 15
Acting
255.(1) This section applies if the president temporarily can not perform 16
the functions of office. 17
(2) The Governor in Council may, by industrial gazette notice, appoint a 18
person who is qualified to be appointed as a Supreme Court judge to act as 19
president. 20
(3) The person, if not a Supreme Court judge, is entitled to the 21
remuneration payable to a Supreme Court judge while acting as president. 22
(4) A person who has acted as president may attend sittings of the court 23
for the purpose of giving a decision in, or otherwise completing, a 24
proceeding that was heard by the person while the person was acting as 25
president. 26
(5) A decision given under subsection (4) is taken to be the president's 27
decision in the proceeding. 28
s 256 193 s 258
Workplace Relations
3--Jurisdiction and powers of the court 1
Division
of court 2
Constitution
256.(1) The court is constituted by the president sitting alone. 3
(2) A Full Industrial Court ("full court") is constituted by the president 4
and 2 or more commissioners sitting together. 5
jurisdiction 6
President's
257. Unless otherwise required by this or another Act, the president 7
sitting alone has all the jurisdiction and powers of the court. 8
jurisdiction 9
Court's
258.(1) The court has jurisdiction-- 10
(a) to perform all functions and exercise all powers prescribed for the 11
court by this or another Act; and 12
(b) to hear and decide the following matters-- 13
(i) cases stated to it by the commission; 14
(ii) appeals from decisions of the commission; 15
(iii) appeals from an industrial magistrate's decision in a 16
proceeding for-- 17
(A) an offence against this Act; or 18
(B) recovery of damages, or other amounts, under this Act 19
or under an industrial instrument or a permit; 20
(iv) proceedings for cancelling or suspending registration of an 21
organisation; 22
(v) appeals from decisions of, and references by, the registrar on 23
matters of law or procedure; 24
(vi) a proceeding for an offence against this Act, other than an 25
offence for which jurisdiction is expressly conferred on a 26
magistrate; 27
s 259 194 s 259
Workplace Relations
(vii) a proceeding for an offence under section 243, 440, 443 1
or 456;131 and 2
(c) to punish contempts of the court; and 3
(d) to exercise the jurisdiction and powers of the Supreme Court to 4
ensure, by prerogative order or other appropriate process, that the 5
commission and magistrates-- 6
(i) exercise their jurisdictions according to law; and 7
(ii) do not exceed their jurisdictions. 8
(2) A matter mentioned in subsection (1)(b)(iv), (vi) or (vii) must be 9
heard and decided by a full court. 10
(3) In a proceeding, the court may-- 11
(a) make the decisions it considers appropriate, irrespective of 12
specific relief claimed or applied for by a party; and 13
(b) give directions about the hearing of a matter within the court's 14
jurisdiction. 15
(4) The exercise of the court's jurisdiction for persons under 21 years is 16
subject to the Vocational Education, Training and Employment Act 1991. 17
(5) A provision of this or another Act does not limit, by implication, the 18
court's jurisdiction. 19
jurisdiction is exclusive 20
Court's
259.(1) The court's decision-- 21
(a) is final and conclusive; and 22
(b) can not be impeached for informality or want of form; and 23
(c) can not be appealed against, reviewed, quashed or invalidated in 24
another court. 25
(2) The court's jurisdiction is exclusive of another court's jurisdiction and 26
an injunction or prerogative order can not be issued, granted or made in 27
131 Section 243 (Compulsory conference), 440 (Contempt by witness),
443 (Obstructing officers) or 456 (Confidential material tendered in evidence)
s 260 195 s 262
Workplace Relations
relation to a proceeding in the court within its jurisdiction. 1
(3) Subsection (1) is subject to section 359.132 2
nature of court's interpretation 3
Binding
260. The court's interpretation of a provision of this Act, an industrial 4
instrument or a permit is final and conclusive and binds-- 5
(a) the commission; and 6
(b) magistrates; and 7
(c) organisations and persons who are subject to this Act, or bound 8
by the industrial instrument or permit. 9
may refuse to proceed 10
Court
261.(1) This section applies if a proceeding before the court relates to an 11
industrial instrument that exists or is sought in the proceeding. 12
(2) The court may refuse to hear and decide the proceeding if any of the 13
employees who are, or would be, bound by the instrument are-- 14
(a) involved in an industrial dispute; or 15
(b) contravening-- 16
(i) this Act, a decision, or a recommendation under 17
section 241;133 or 18
(ii) the Industrial Organisations Act 1996. 19
(3) Subsection (2) applies whether or not the employees are employees 20
whose employment may be affected by the decision of the proceeding. 21
of full industrial court 22
Decision
262.(1) In a proceeding in the full court, the court's decision is the 23
decision of the majority of its members. 24
132 Section 359 (Appeal from court to Court of Appeal)
133 Section 241 (Recommendation by consent)
s 263 196 s 264
Workplace Relations
(2) However, the president's opinion is taken to be the decision of the full 1
court if-- 2
(a) the question to be decided is about-- 3
(i) the court's jurisdiction; or 4
(ii) the interpretation of a provision of this or another Act, or of a 5
law, industrial instrument or permit; or 6
(b) its members are evenly divided on the question to be decided. 7
Division 4--President's annual report 8
annual report 9
President's
263.(1) As soon as practicable after the end of each financial year, the 10
president must prepare and give to the Minister a report for the year on-- 11
(a) the operation of this Act; and 12
(b) in particular, the working of the court, commission and registrar's 13
office. 14
(2) The Minister must table a copy of the report in the Legislative 15
Assembly within 14 sitting days after the Minister receives it. 16
5--President's advisory council 17
Division
of advisory council 18
Establishment
264.(1) The president's advisory council (the "advisory council") is to 19
be established. 20
(2) The advisory council is to be made up of a maximum of 9 members. 21
(3) The advisory council consists of-- 22
(a) the president; and