INDUSTRIAL RELATIONS BILL 1999 Explanatory Notes
INDUSTRIAL RELATIONS BILL 1999
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Industrial Relations
INDUSTRIAL RELATIONS BILL 1999
EXPLANATORY NOTES
GENERAL OUTLINE
Objective of the legislation
The principal objective of this Bill is to provide a framework for industrial
relations that supports economic prosperity and social justice by:
· providing for rights and responsibilities that ensure economic
advancement and social justice for all employees and employers; and
· providing for an effective and efficient economy, with strong economic
growth, high employment, employment security, improved living
standards, low inflation and national and international competitiveness;
and
· preventing and eliminating discrimination in employment, and ensuring
equal remuneration for men and women; and
· helping balance work and family life; and
· promoting the effective and efficient operation of enterprises and
industries; and
· ensuring wages and employment conditions provide fair standards in
relation to living standards prevailing in the community; and
· promoting participation in industrial relations by employees and
employers; and
· encouraging responsible representation of employees and employers by
democratically run organisations and associations; and
· promoting and facilitating the regulation of employment by awards and
agreements; and
· meeting the needs of emerging labour markets and work patterns; and
· promoting and facilitating jobs growth, skills acquisition and vocational
training through apprenticeships, traineeships and labour market
programs; and
· providing for effective, responsive and accessible support for
negotiations and resolution of industrial disputes; and
· assisting in giving effect to Australia's international obligations in
relation to labour standards
Reasons for the Bill
The Bill implements the objectives of the Government's pre-election
"Industrial Relations New Directions Statement":
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· to establish an effective industrial relations system that gives
Queenslanders a fair and reasonable standard of living, an equitable
share of the State's output, access to jobs and training, secure and
satisfying employment, equal opportunity and freedom from
discrimination in employment; and
· develop an industrial relations system which takes account of both social
and economic goals in order to ensure a proper balance between the
achievement of fair outcomes for workers and improving the productive
performance of Queensland workplaces and industries.
To meet these objectives the Government established a review of
Queensland's industrial relations system and immediately moved
amendments to the Workplace Relations Act 1997.
On 27 July 1998, the Government approved the terms of reference for a
comprehensive review of the industrial relations legislation and the
membership of an Industrial Relations Taskforce. The Taskforce
comprised representatives of unions and employer associations,
independent experts and a representative of the Department of Employment,
Training and Industrial Relations.
The Taskforce was chaired by Professor Margaret Gardner, Pro
Vice-Chancellor (Business, Equity), Griffith University.
The members of the Taskforce were:
· Ingrid Asbury, National Industry Group Manager, Australian Industry
Group;
· John Battams, General Secretary, Queensland Teachers Union;
· Don Brown, Secretary, Australian Liquor, Hospitality & Miscellaneous
Workers Union;
· Robin Franklin, Group Manager, Human Resources, Thiess Contractors
Pty Ltd;
· Judith Himstedt, Manager, Workplace Relations Division, Queensland
Chamber of Commerce and Industry;
· Peter Henneken, Acting Deputy Director-General, Department of
Employment, Training and Industrial Relations;
· Chris Ketter, Branch Secretary, Shop, Distributive & Allied Employees
Association (from October 1998);
· Joseph Ludwig, Senior Industrial Advocate, Australian Workers Union
(to 2 September 1998); and
· an independent expert, Professor Ron McCallum, Blake Dawson
Waldron, Professor in Industrial Law at the University of Sydney.
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The Government set the following terms of reference for the review of
Queensland's industrial relations legislation.
The new legislation will result in the development of an industrial relations
system that:
· improves the strength of the economy, provides for job growth and
enhances job security;
· meets the needs of emerging labour markets and work patterns;
· is fair and equitable;
· provides an effective balance between collective and individual rights;
· is flexible, responsive and accessible; and
· is based on cooperation, consultation and participation.
It was proposed that the following elements form the basis of the legislative
review:
· strengthening and enhancing job security and addressing the issue of
non-standard forms of work and related employment conditions;
· creating a responsive and accessible industrial relations system;
· fair and equitable arrangements for wages and conditions that meet the
needs of industry, employers and employees including the public sector;
· the need for a viable, relevant and up-to-date award system that protects
the wages and conditions of workers;
· the interface between State and federal industrial relations systems;
· the role, structure and function of the Industrial Relations Court,
Commission and Registry and related tribunals; and
· strengthening collective arrangements, including the operation and
regulation of industrial organisations.
On 28 August 1998 the Workplace Relations Amendment Act 1998 was
passed by Parliament. The Act overturned certain harsh and unfair aspects
of the Workplace Relations Act 1997. This included stopping awards from
being stripped back to 20 allowable matters. In regard to Queensland
workplace agreements (QWAs), the Act removed secrecy provisions,
included a protection for disadvantaged groups (such as young workers and
women) and required the commission to consider the public interest before
approval of a QWA.
The Report of the Industrial Relations Taskforce recommended the
development of a new Industrial Relations Act to replace the Workplace
Relations Act 1997 and the Industrial Organisations Act 1997.
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In total the Taskforce made 166 recommendations, of which 139 (84%)
were unanimous, 27 were by majority. Of the 166 recommendations the
Bill has adopted 150 in total or with addition or modification and 16 have
been rejected.
Achieving the objective
The Bill repeals the Workplace Relations Act 1997 and the Industrial
Organisations Act 1997 and provides for a new industrial relations system
based on recommendations of the Industrial Relations Taskforce and key
policy issues determined by Government.
The Bill:
· strengthens the role of the commission in the making and varying of
awards and in mediating and conciliating where negotiations over
enterprise bargains have broken down;
· introduces a position of full-time president of the Industrial
Commission and court, and simplifies the appeals provisions, but
generally retains the current structure of the commission and court;
· provides for legal representation before the commission to occur by
leave of the commission;
· requires awards to be reviewed regularly and to set fair and reasonable
wages and conditions of employment rather than be limited to a
minimum safety net of conditions;
· provides greater choice in the types of agreements that can be made
between employers and employees including agreements that can be
made for a single business or enterprise, for projects, for multiple
employers and for new business sites;
· introduces a 21 day peace obligation period during which parties are
expected to bargain without resorting to protected industrial action;
· retains agreements between an individual employer and employee
(Queensland workplace agreements);
· removes the small business exemption from the unlawful dismissal
laws for employers of fifteen or less staff during the first year of
employment;
· provides a three month probationary period for all employees;
· streamlines unfair dismissal provisions and requires the commission to
deal with applications expeditiously;
· provides a minimum statutory entitlement for annual leave, sick leave,
long service leave, parental leave, carers leave (i.e. where employees can
use sick or annual leave for caring purposes), bereavement leave and
public holidays for all employees;
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· increases the minimum entitlement for sick leave from one week per
year to eight days per year;
· sets the maximum number of hours of work at 8 hours per day, unless
otherwise agreed in an award or agreement;
· makes it easier for the commission to establish a minimum wage for
non-award employees;
· requires that, as soon as practicable, a review of Queensland awards is
undertaken to remove discriminatory provisions;
· adds outworkers to the definition of employee, and gives the Industrial
Commission the power to conduct an inquiry to determine whether a
category of independent contractors should be deemed as employees;
· broadens the criteria for a review of an unfair contract;
· simplifies election provisions for industrial organisations for democratic
elections;
· removes the requirement that organisations pay for elections and
provides that elections conducted by the electoral commission be funded
by that body;
· simplifies the accounting provisions for industrial organisations and
removes provisions relating to political objects funds;
· requires unions to give notice to an employer on entering a workplace;
· requires the commission to consult with peak councils and other
industrial organisations on coverage of industrial organisations, where it
believes this to be necessary;
· transfers the determination of wages and conditions of employment of
apprentices and trainees to the industrial relations legislation from the
vocational education and training legislation;
· provides that the positions of Enterprise Commissioner and
Employment Advocate be abolished;
· provides that the Industrial Registry become a public service office
under the Public Service Act 1996; and
· provides that statutory precedence of public service directives over
awards be largely relinquished.
Alternatives to the Bill
The Report of the Industrial Relations Taskforce recommended the
development of a new Industrial Relations Act to replace the Workplace
Relations Act 1997 and the Industrial Organisations Act 1997.
The Bill repeals the Workplace Relations Act 1997 and the Industrial
Organisations Act 1997 and provides for a new industrial relations system
based on recommendations of the Industrial Relations Taskforce and key
policy issues determined by Government.
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Government has a commitment to creating an industrial relations system
that ensures a proper balance between improving the economic
competitiveness of Queensland workplaces and industries and the
achievement of fair outcomes for workers. In order to maintain this
commitment, the Taskforce and Government considered a wide range of
differing views and divergent options when settling upon the principal
objectives of the Bill. The Government considers that the Bill reflects the
best approach to maintaining and securing the Bill's objectives.
Administrative cost to Government
Funds are available to maintain and provide for the offices, institutions and
functions maintained or established by this Bill.
Consistency with fundamental legislative principles
The following provisions of the Bill may be perceived as inconsistent with
fundamental legislative principles:
Clause 72 (4) (Dismissals Part 1--Exclusions)
This clause provides a regulation-making power to exclude particular
employees from the operation of certain provisions of the chapter dealing
with dismissals. This clause preserves a regulation-making power from
section 216(5) of the Workplace Relations Act 1997.
Clause 83(7) (Requirements for dismissal)
This clause provides a regulation-making power to exclude from the
operation of the clause dismissals happening in circumstances specified in a
regulation that relate to the transfer of the employer's business. This clause
preserves a regulation-making power from section 226(12) of the
Workplace Relations Act 1997.
Clause 84(2) (Minimum period of notice)
This clause provides a regulation-making power to prescribe matters that
must be disregarded when calculating continuous service under clause
84(1). This clause preserves a regulation-making power from section
226(5) of the Workplace Relations Act 1997.
Clause 564 (Auditors have qualified privilege)
This clause confers immunity from civil and criminal proceedings relating
to defamation on an organisation's auditor similar to the position of
company auditors (see section 863 of the Corporations Law).
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Consultation
To assist the review of Queensland's industrial relations legislation, the
Taskforce undertook a wide-ranging process of consultation. This
consultation had four elements:
· distribution of an Issues Paper;
· a series of regional consultation meetings;
· a call for written submissions; and
· issues workshops.
The Taskforce Issues Paper was tabled in the Parliament in September 1998
and subsequently some 2500 copies of the Issues Paper were distributed
directly to employer associations, unions, companies, government agencies,
parliamentarians, other organisations and interested individuals. The Issues
Paper was also placed on the Internet to allow general public access.
The Issues Paper provided information and posed questions for those
wishing to make a written submission. In response, 208 submissions were
received by the closing date of 14 October 1998.
In addition, regional consultations were held at the Gold Coast, Townsville,
Cairns, Rockhampton, Mt Isa, Brisbane, Nambour and Roma between 22
and 29 September. These were attended by some 340 people. Three issues
workshops were also conducted with stakeholders on the bargaining
process, the structure of the Commission and the Court, and the public
service.
The Taskforce report provides a summary of the views of the written
submissions to the Taskforce, as well as the views expressed by individuals
and organisations expressed during regional consultations.
The Taskforce's final report was released in December 1998 and further
public comments were invited by 12 February 1999. Forty-two
submissions were received.
NOTES ON CLAUSES
The following notes indicate where clauses have been wholly retained,
without alteration, from previous sections of the Workplace Relations Act
1997 or the Industrial Organisations Act 1997.
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CHAPTER 1--PRELIMINARY
Short title
Clause 1 sets out the short title of the Bill.
Commencement
Clause 2 provides that clause 744 (amendment of section 136 (Existing
regulations)) of the Public Service Act 1996) commences, or is taken to
have commenced, on 1 July 1999. The remaining provisions of this Bill
commence on a day to be fixed by proclamation.
Principal object of this Act
Clause 3 defines the Bill's objects.
Definitions
Clause 4 provides that the dictionary in schedule 5 defines particular words
in the Bill.
Who is an employee
Clause 5 defines an "employee" for the purposes of the Bill. However, the
clause also provides that a person who is undertaking an industry placement
within the meaning of the Vocational Education and Training (Industry
Placement) Act 1992 is not an employee.
Who is an employer
Clause 6 defines an "employer" for the purposes of the Bill. This clause
also provides for a definition of "group training scheme" and "labour hire
agency" for the purposes of the Bill.
What is an industrial matter
Clause 7 defines an "industrial matter". It sets out all matters that are an
"industrial matter" for the purposes of this Bill. Without limiting the clause
a matter is also an industrial matter if it relates to a matter mentioned in
schedule 1.
Provisions about appointments and procedures of committees
Clause 8 describes the provisions contained in schedule 2 of the Bill.
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CHAPTER 2--GENERAL EMPLOYMENT CONDITIONS
PART 1--GENERAL
Division 1--Working time
Working time
Clause 9 applies to an employee under an industrial instrument. The clause
does not apply if an industrial instrument provides otherwise.
The periods for which an employee is required to work must not exceed:
· 6 days in any 7 consecutive days; or
· 40 hours in any 6 consecutive days; or
· 8 hours in any day.
An employee must be paid overtime at the rate of at least:
· for a calling in which more than 1 shift is worked in a day--double
time; and
· for another calling--time and a half.
If an employee is paid at a higher rate than the minimum rate prescribed in
the industrial instrument, the overtime rate must be worked out on the
higher rate.
If practicable, an employee is entitled to a rest pause of at least 10 minutes in
each 4 hours of working time on a day.
The rest pause:
· is part of the employee's working time; and
· if continuity of work is necessary, must be taken when it does not
interfere with continuity.
A definition of "overtime" is provided for the clause.
Division 2--Sick leave
Entitlement
Clause 10 provides entitlement and conditions for sick leave for employees
other than casual employees and pieceworkers. This clause does not confer
entitlement on a person that the person did not have before the
commencement of this clause.
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Division 3--Annual leave
Entitlement
Clause 11 establishes a minimum period of annual leave for all employees,
other than casual employees and piecework employees, and defines "shift
worker" to be applied under this part.
Taking annual leave
Clause 12 establishes arrangements for the time at which annual leave may
be taken.
Payment for annual leave
Clause 13 establishes arrangements for the payment of annual leave. Unless
an employee and employer otherwise agree, the employer must pay the
employee for annual leave in advance.
Payment for annual leave on termination of employment
Clause 14 establishes arrangements for the payment of unused annual leave
on termination of employment. The clause applies whether the employee or
the employer terminates an employee's employment.
Division 4--Public holidays
Public holidays
Clause 15 provides an employee, other than a casual employee or
pieceworker, with entitlements for leave on full pay for a public holiday
unless otherwise provided for under this part.
The clause defines "double time and a half", "ordinary working day",
"ordinary working hours" and "show holiday" for this part.
The clause provides for the rate of payment for an employee who works on
a public holiday, if the employee's employment is governed by an industrial
instrument.
The commission may give an employee entitlement to extra annual leave
instead of extra pay for work on a public holiday.
An employer and an employee are to agree upon a day to be treated as a
public holiday in a district that does not have an annual agricultural,
horticultural or industrial show.
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PART 2--FAMILY LEAVE
Division 1--Parental leave
Who this division does not apply to
Clause 16 establishes to whom this division does not apply and that this
division applies to:
· long term casual employees only so far as it relates to maternity leave;
and
· long term casual employees even if some of the periods of employment
were before the commencement of this clause.
Definitions for pt 2
Clause 17 defines terms to be applied in this part.
Entitlement
Clause 18 provides the amount of parental leave to which the employee is
entitled and defines "continuous service" for this part.
The clause also provides for the amount of leave to which the employee's
spouse, a former spouse or a de facto spouse is entitled upon the birth of a
child. The term "spouse" is defined to include a spouse of the same sex as
the employee.
Notices and documents--maternity leave
Clause 19 establishes the amount of notice and the documents that a
pregnant employee who wishes to take maternity leave must give to the
employer.
Notices and documents--parental leave other than maternity or
adoption leave
Clause 20 provides the amount of notice and the documents that an
employee who wishes to take parental leave other than maternity leave or
adoption leave must give to the employer.
Notices and documents--adoption leave
Clause 21 provides the amount of notice and the documents that an
employee who wishes to take adoption leave must give to the employer and
defines "adoption agency" for this part.
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Reasons not to give notice or documents
Clause 22 provides that the employee does not fail to comply with clauses
19, 20 or 21 if the failure was caused by an exception provided for in this
clause (see subclauses (a), (b) and (c)).
The clause provides the amount of notice that the employee must give upon
the occurrence of the events mentioned in subclauses (a), (b) and (c).
Notice of change to situation
Clause 23 provides that an employee must notify their employer of any
change in the information provided in clauses 19, 20 or 21 within 2 weeks
after the change.
Continuity of service
Clause 24 provides that parental leave does not break an employee's
continuity of service.
Spouses not to take parental leave at same time
Clause 25 provides that an employee cannot take parental leave (except
short parental leave or short adoption leave) at the same time as their
spouse.
Where an employee contravenes this clause, then the period of leave the
employee is entitled to is reduced by the period of leave the employee's
spouse has taken.
Cancelling parental leave
Clause 26 provides the conditions under which parental leave is
automatically cancelled. This clause does not affect an employee's
entitlement to special maternity leave or sick leave under clause 37.
Parental leave with other leave
Clause 27 provides, subject to clause 18, that employees may take long
service leave and annual leave together with or instead of parental leave,
provided that the total amount of leave taken does not exceed the
employee's entitlement.
The clause also defines "other paid leave" for this part.
An employee is not entitled to take paid sick leave or other paid leave while
on unpaid parental leave unless the employer agrees.
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Interruption of parental leave by return to work
Clause 28 provides that, subject to clause 18, an employer and employee
may agree to break a period of parental leave, by the employee returning to
work whether on a full time, part-time or casual basis.
Extending period of parental leave
Clause 29 provides, subject to clause 18, the conditions under which an
employee can extend their period of parental leave.
Shortening period of parental leave
Clause 30 provides the conditions under which the employee may
shorten parental leave.
Effect on parental leave of ceasing to be primary care-giver
Clause 31 provides conditions for the cancelling of parental leave if:
· during a substantial period beginning on or after the beginning of an
employee's long parental leave, the employee is not the child's primary
care-giver; and
· considering the length of the period and any other relevant
circumstances, it is reasonable to expect the employee will not again
become the child's primary care-giver within a reasonable period.
Return to work after parental leave etc.
Clause 32 establishes how an employee is entitled to return to work at
the completion of a period of parental leave. The clause includes a
female employee returning to work after a period of special maternity
leave or sick leave under clause 37.
An employer must make a position to which an employee is entitled
available to the employee. If a long-term casual employee's hours were
reduced because of the pregnancy before starting maternity leave, the
employer must restore the employee's hours to hours equivalent to
those worked immediately before the hours were reduced.
Employer's obligations
Clause 33 requires the employer to give prescribed information to the
employee at the time when the employer first becomes aware that the
employee or the employee's spouse is pregnant, or that the employee is
adopting a child.
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Dismissal because of pregnancy or parental leave
Clause 34 prohibits an employer from dismissing an employee because:
· the employee or employee's spouse is pregnant or has applied to adopt a
child; or
· the employee or employee's spouse has given birth to a child or adopted
a child;
· the employee has applied for, or is absent on, parental leave.
The clause does not affect the employer's right to dismiss an employee for
other reasons nor does it affect the rights of a dismissed employee.
Replacement employees
Clause 35 requires an employer to give certain information to a replacement
employee and defines "replacement employee" for this part.
Transfer to a safe job
Clause 36 (1) applies where the present work of a female employee is,
because of her pregnancy or breastfeeding, a risk to the health or safety of
the employee or of her unborn or newborn child.
The clause provides for how the assessment of risk is to be made.
The employer must temporarily adjust the employee's working conditions
or hours of work to avoid exposure to the risk. The clause also establishes
what is to happen if it is not feasible or reasonable to adjust the employee's
work.
Special maternity leave and sick leave
Clause 37 provides leave for an employee, before the employee starts
maternity leave, if the employee's pregnancy terminates before the expected
date of birth other than by the birth of a living child, or if the employee
suffers illness related to her pregnancy.
Special adoption leave
Clause 38 provides for up to 2 days unpaid leave, to attend compulsory
interviews or examinations for an employee wishing to adopt a child.
Division 2--Carer's leave
Entitlement
Clause 39 provides that an employee may use up to 5 days of sick leave
entitlement to provide care and support for members of their immediate
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family or members of their household when they are ill. An employee
cannot take carer's leave if another person has taken leave to care for the
same person.
An employee may take unpaid carer's leave, with their employer's consent.
Division 3--Bereavement leave
Entitlement
Clause 40 provides that employees (other than casual employees or
pieceworkers) may take paid leave on the death of a member of their
immediate family or household in Australia.
An employee may take unpaid bereavement leave with the employer's
consent.
Division 4 -- Part overrides less favourable conditions
This part overrides less favourable conditions
Clause 41 provides that this part has effect despite another Act or industrial
instrument or order, to the extent that these provide an employee with a
benefit that is less favourable to the employee.
PART 3--LONG SERVICE LEAVE
Division 1--Definitions for pt 3
Definitions for pt 3
Clause 42 defines terms used in this part.
Division 2--Employees generally
Entitlement
Clause 43 applies to employees, other than seasonal employees, and
provides the period of long service leave to which an employee is entitled
for their period of service.
The clause establishes that an employee is entitled to proportionate payment
for long service leave if certain prescribed conditions are met.
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Long service leave is exclusive of a public holiday that falls during the
period of the leave.
An employee who has entitlements to long service leave other than from
this Bill, is entitled to leave that is at least as favourable as leave under this
Bill.
The clause defines the term "proportionate payment" for this part.
Working out continuity of service for service before 23 June 1990
Clause 44 applies to employees who had service before 23 June 1990 and
were not casual employees. Specific sections of the repealed Industrial
Conciliation and Arbitration Act 1961 apply to these employees to
determine their continuous service and calculate their long service leave
entitlements in relation to service before 23 June 1990.
Taking long service leave
Clause 45 provides that the commission may insert provisions in an
industrial instrument concerning the time at which long service leave is to be
taken.
An employer and employee may agree when long service leave is to be
taken. The employer may decide when long service leave is to be taken,
subject to certain conditions, if the employer and employee cannot agree on
the time.
Payment for long service leave
Clause 46 provides for payment of long service leave at the rate at which the
employee was being paid immediately before taking long service leave. The
clause defines "usual rate" for this part.
Division 3--Casual employees
Continuity of service--additional considerations for casual employees
Clause 47 provides how continuity of service for casual employees is to be
calculated.
The clause does not limit any other entitlement to long service leave that an
employee may have. For example, if a casual employee gained an
entitlement to long service leave under the Industrial Conciliation and
Arbitration Act 1961, this entitlement would be retained under this Act.
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Taking long service leave--alternative provision for casual employees
Clause 48 provides that an employer and casual employee may agree to the
taking of long service leave in the form of its full-time equivalent, subject to
any provision contained in an industrial instrument.
Payment for long service leave
Clause 49 provides the manner and the method of calculation of payment of
long service leave for casual employees.
A definition of "actual service", "casual employee" and "hourly rate" are
provided for the clause.
Division 4--Seasonal employees
Entitlement--employees in sugar industry and meat works
Clause 50 provides the method of calculating the long service leave
entitlement of seasonal employees in the sugar and meat industries.
The clause excludes service before 23 June 1990 in calculating the length of
the employee's continuous service. A definition of "section 43 entitlement"
and "actual service" is provided for the clause.
Taking long service leave--employees in sugar industry and meat
works
Clause 51 provides that a seasonal employee in the sugar or meat industry
may take long service leave between seasons.
Other seasonal employees
Clause 52 provides that the commission may decide long service leave
conditions for other seasonal employees.
Division 5--Miscellaneous
Payment instead of long service leave on termination
Clause 53 provides that it is an offence:
· for an employer to make payment in lieu of long service leave, except
on the occasion of termination of employment; and
· for an employee's employment to be terminated and the employee to be
paid their long service leave entitlement and the employee then to be
re-employed within a period less than the period of long service leave
entitlement.
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The maximum penalty in each instance is 40 penalty units.
Payment instead of long service leave on death
Clause 54 provides for payment of long service leave upon the death of the
employee.
Continuity not broken by service in Reserve Forces
Clause 55 provides for the continuity of service, for long service leave
purposes, of members of the Reserve Forces and defines "Reserve Forces"
for this part.
Recognition of certain exemptions
Clause 56 provides that this part does not apply to an employer if any
exemptions from long service leave awarded by the commission under the
Industrial Conciliation and Arbitration Act 1961 are still in force.
The commission may on application revoke such an exemption.
Person may be "employer" and "employee"
Clause 57 preserves section 208 of the Workplace Relations Act 1997 and
provides that a person who is an employee is entitled to long service leave
notwithstanding that the person may satisfy the definition of "employer"
under clause 6.
PART 4--REVIEW
Review of general employment conditions
Clause 58 provides that the Minister, an organisation or a State peak council
may apply to the full bench for a review of the conditions provided in this
chapter.
The full bench may by general ruling (see clause 287, General rulings)
substitute a condition with another that is no less favourable.
The full bench must, before 30 June 2000, conduct a review of long service
leave entitlements.
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PART 5--EQUAL REMUNERATION FOR WORK OF EQUAL
OR COMPARABLE VALUE
Definition for pt 5
Clause 59 defines "equal remuneration for work of equal or comparable
value" for this part.
Orders requiring equal remuneration
Clause 60 provides that the commission may make orders to ensure that
employees covered by the order will receive equal remuneration for work of
equal value or comparable value.
An order may provide for an increase in remuneration rates, including
minimum rates.
Orders only on application
Clause 61 provides that the commission may make an order under this part
only on application by certain specified parties. The clause allows the
Minister and a State peak council to make an application.
When commission must and may only make order
Clause 62 requires that the commission must and may only make an order
when it is satisfied that the employees to be covered by the order do not
receive equal remuneration for work of equal or comparable value.
Immediate or progressive introduction of equal remuneration
Clause 63 provides that the order may introduce equal remuneration
immediately or progressively.
Employer not to reduce remuneration
Clause 64 provides that an employer is not to reduce the remuneration of an
employee because an application or order has been made under this part. If
an employer purports to do so, the reduction is of no effect.
Part does not limit other rights
Clause 65 provides that this part does not limit (subject to clause 66) any
other right that a person or organisation has to secure equal remuneration for
work of equal or comparable value.
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Applications under this part
Clause 66 provides that an application may not be made under this part
where alternative action has begun under another provision of this Bill or
under another Act, unless that action has been discontinued or has failed for
want of jurisdiction.
An application cannot be made under another provision of this Bill or
of another Act for an order for equal remuneration where action has
begun under this part, unless that action has been discontinued or has
failed for want of jurisdiction.
PART 6--Continuity OF SERVICE and employment
Definition for pt 6
Clause 67 provides a definition for the term "service" that is to be used in
this part.
How part applies
Clause 68 provides that this part applies when working out an employee's
rights and entitlements under this chapter or chapter 3.
An employee cannot claim the benefit of a right or entitlement for the same
period of service.
Continuity of service--transfer of calling
Clause 69 defines the term "transferred employee" and "dismissed" for this
part.
The transfer of a business does not break the transferred employee's
continuity of service. The service of an employee with the former employer
is taken to be service with the new employer.
Continuity of service--apprentices or trainees
Clause 70 provides that the period of service of an employee as an
apprentice or trainee does not break the employee's continuity of service
with the employer at the completion of the apprenticeship or traineeship, or
re-employment of the employee within three months of the completion.
The period of service of an employee with an employer before the
commencement of an apprenticeship or traineeship does not break the
employee's continuity of service.
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Continuity of service--generally
Clause 71 establishes the circumstances where an employee's continuity of
service is considered not have been broken. The clause defines "subsidiary"
and "terminate" for this clause.
CHAPTER 3--DISMISSALS
PART 1--Exclusions
Who this chapter does not apply to
Clause 72 specifies those employees who are exempt from part 2 (unfair
dismissals) and part 3 (requirements for dismissal) of this chapter. The
clause defines "federal award employee", "long term casual employee" and
"short term casual employee" for this part.
PART 2--UNFAIR DISMISSALS
When is a dismissal unfair
Clause 73 provides that a dismissal is unfair if it is harsh, unjust or
unreasonable or for an invalid reason. As an example, the refusal of an
employee to negotiate for or make a certified agreement or Australian
Workplace Agreement under the Workplace Relations Act 1996 (Cwlth) is
an invalid reason.
Application for reinstatement
Clause 74 provides the time limits within which an application for
reinstatement may be lodged, and who may make the application.
The registrar may reject an application if the registrar considers that
the dismissed employee is a person to whom this chapter does not
apply. When rejecting an application, the registrar must give written
reasons for the rejection.
Within 21 days of the registrar's notice, the applicant may inform the
registrar in writing that they wish the application to proceed. After
this notification, the commission must deal with the application,
despite the registrar's rejection.
Conciliation before application heard
Clause 75 provides that the commission must hold a conference to attempt
to settle an application before it hears the application.
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The commission is required to issue a written certificate if it is satisfied
that all reasonable steps to settle the matter by conciliation are, or are
likely to be, unsuccessful.
An application lapses if the applicant has not, within 6 months after
receiving such a written certificate:
· taken any action in relation to the application; or
· discontinued the application.
The parties may seek further conciliation, or settle the matter, at any time
before an order is made under clause 78, 79 or 80.
The president may delegate the functions of the commission under this
clause to the registrar or a deputy registrar.
Arbitration when conciliation unsuccessful
Clause 76 provides that the commission may hear and decide the
application once it considers that all reasonable steps have been taken, but
have been unsuccessful, to settle an application by conciliation.
Matters to be considered in deciding an application
Clause 77 establishes the matters that the commission must consider when
deciding whether a dismissal was harsh, unjust or unreasonable.
Remedies--reinstatement or re-employment
Clause 78 provides remedies that the commission may order if it is satisfied
that an employee was unfairly dismissed.
Remedies--compensation
Clause 79 provides that the commission may order that the employer pays
the employee compensation, where the commission considers that
reinstatement or re-employment would be impracticable.
The clause requires the commission to consider a number of matters in
determining the amount of compensation to be paid.
Sanctions for unfair dismissal
Clause 80 provides that the commission may order an employer to pay to
the employee an additional amount of not more than the monetary value of
135 penalty units, if it is satisfied that the employer dismissed the employee
for an invalid reason.
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Further orders if employer fails to reinstate
Clause 81 provides further orders that the commission may make if the
employer wilfully contravenes an order to reinstate or re-employ the
employee.
Effect of order on leave
Clause 82 provides that, if the commission orders the reinstatement or
re-employment of an employee, the interruption to the employee's
continuity of employment or service caused by the dismissal must not
be counted when calculating the employee's entitlement to annual,
sick, family or long service leave.
PART 3--REQUIREMENTS FOR DISMISSAL
What employer must do to dismiss employee
Clause 83 provides that an employer may dismiss an employee only if the
employer has given the employee the required period of notice required by
clause 84 or paid the amount of compensation required by clause 85, or if
the employee has engaged in misconduct as defined in this clause (see
subclause (2)).
Where an employer fails to give the required notice or pay the required
compensation, an application can be made to either the commission or
a magistrate to order the employer to pay the required compensation.
A regulation may exclude from the operation of this clause dismissals
happening in specified circumstances that relate to the transfer of the
employer's business.
Minimum period of notice required
Clause 84 establishes the minimum period of notice to be given to an
employee and provides that a regulation may prescribe matters that must be
disregarded when working out continuous service.
Minimum amount of compensation required
Clause 85 provides the method of calculating the minimum amount of
compensation to be paid to an employee.
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A regulation may prescribe the amount that is taken to be payable, or
how to work out the amount, under an employment contract
mentioned in this clause, to an employee whose wages before dismissal
were determined wholly or partly on the basis of commission or piece
rates.
PART 4--Dismissal of 15 or more employees
When this part applies
Clause 86 provides that this part applies if an employer decides to dismiss
15 or more employees for an economic, technological or structural reason.
Orders about severance allowances and other separation benefits
Clause 87 provides that the commission may make an order about
severance allowance or other separation benefits upon application. The
clause specifies who may make an application, and that an employer must
not contravene the commission's order.
The clause provides remedies for the commission to apply should an
employer contravene the commission's order.
A definition of "severance allowance or other separation benefits" is
provided for this clause.
Employer must give notice of proposed dismissals
Clause 88 requires the employer who wishes to dismiss 15 or more
employees to provide notification to the Commonwealth department or
agency whose primary responsibility is helping unemployed people find
work and each employee organisation of which any of the employees is a
member.
The clause specifies the details required to be included in the notice. A
failure to give notice is not an offence. The commission is provided with
remedies where the employer fails to provide the required notice.
Employer must consult with employee organisations about dismissals
Clause 89 provides that the employer must give each employee organisation
of which any of the employees is a member an opportunity to consult about
the dismissals.
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Where the employer fails to consult, the commission may make orders it
considers appropriate to put employees, and their organisations, in the same
position as if the employer had consulted.
The clause does not apply if the employer could not reasonably be expected
to have known (at the time of the decision) that the organisation's rules
entitled it to represent the industrial interests of the dismissed employees.
Time within which application under this part must be made
Clause 90 provides the time limit within which an application under this
part must be made.
PART 5--PROTECTION OF INJURED EMPLOYEES
Definitions for pt 5
Clause 91 preserves section 232 of the Workplace Relations Act 1997 and
defines terms used in this part.
Wages to be paid for the day employee injured
Clause 92 provides that an injured employee is entitled to be paid a full
day's wages for the day when the injury happens, despite an industrial
instrument or employment contract.
An injured employee's entitlement under this clause or an entitlement to be
paid in relation to an injury under the Workcover Queensland Act 1996 is in
addition to the employee's entitlement to sick leave under chapter 2, part 1,
division 2 (sick leave).
Dismissal of injured employees only after 6 months
Clause 93 provides that it is an offence for the employer to dismiss an
employee within 6 months of the employee becoming injured, solely or
mainly because the employee is not fit for employment in a position
because of the injury.
The maximum penalty is 40 penalty units.
The clause applies to a dismissal after the commencement of this Bill
even if the employee became unfit before the commencement.
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Replacement for injured employee
Clause 94 provides for the employment of an employee to replace an
injured employee. A definition of "replacement employee" is provided for
this clause.
Reinstatement of injured employees
Clause 95 provides for the reinstatement of an employee after they have
been dismissed because they are not fit for duty. A dismissed employee
may apply to the employer, within 12 months after the injury, for
reinstatement to their former position.
An employee may apply to the commission for a reinstatement order if
the employer fails to reinstate the employee.
The clause applies to a dismissal that occurred after the
commencement of this Bill, even if the injury occurred before its
commencement. A definition of "former position" is provided for this
clause.
Preservation of employee's rights
Clause 96 preserves section 236 of the Workplace Relations Act 1997 by
providing that this part does not affect any other rights of a dismissed
employee under this law or another law. A contract or agreement cannot
affect this part.
PART 6--STAND-DOWN OF EMPLOYEES
Employee stood down in December then re-employed in January
Clause 97 provides for payment of certain public holidays for employees
(other than casual employees) who are stood down in December and
re-employed in January, and who have been employed for a continuous
period of at least 2 weeks immediately before being stood down.
A definition of "stand-down" is provided for this clause.
Permissible stand-down of employee
Clause 98 preserves section 231 of the Workplace Relations Act 1997 and
establishes the circumstances under which an employer may stand down an
employee without pay on a day, or for part of a day, when the employee
cannot be usefully employed because a matter specified in the clause has
happened.
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The clause does not apply to an apprentice or trainee.
PART 7--General
Chapter does not limit other rights
Clause 99 preserves section 237 of the Workplace Relations Act 1997 by
providing that this chapter does not limit a right a person or organisation has
to appeal against a dismissal or have an industrial instrument or order about
a dismissal made.
Inconsistent instruments and orders
Clause 100 preserves section 229 of the Workplace Relations Act 1997 by
providing that an industrial instrument or order that is inconsistent with an
order under this chapter does not apply to the extent that the inconsistency
detrimentally affects the rights of the employees.
CHAPTER 4--FREEDOM OF ASSOCIATION
PART 1--PRELIMINARY
Main purposes of ch 4
Clause 101 is a statement of the right to join or not to join an industrial
association. This chapter gives effect to the principles of freedom of
association, including the right to join or not join an industrial association,
by providing protection from discrimination arising out of membership or
non-membership of an industrial association.
Definitions for ch 4
Clause 102 defines certain words and phrases to be applied under this
chapter.
Meaning of "industrial action" for ch 4
Clause 103 extends the definition of "industrial action" in the Bill to
include, in this chapter, action taken by an independent contractor or a
person who has engaged an independent contractor.
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Meaning of "engaging in" conduct for a "prohibited reason"
Clause 104 specifies that a person engages in "prohibited conduct" if:
· they engage in or threaten to engage in conduct that is specified in part 2;
and
· it is for at least one of the reasons mentioned in the clause.
Where conduct is engaged in for more than one reason, and one of
those reasons is prohibited by this clause, then the whole of the
conduct is taken to be engaged in for a reason prohibited by this
clause.
PART 2--PROHIBITED CONDUCT
Prohibited conduct for employers and principals
Clause 105 provides the conduct that is prohibited under this chapter for:
· employers and principals; and
· those who are taking steps or intend to take steps leading up to engaging
another as an employee or an independent contractor.
Prohibited conduct for employees and independent contractors
Clause 106 sets out the conduct that is prohibited under this chapter for a
person who has been engaged under a contract of service or a contract for
services or who proposes to be engaged under such a contract.
Prohibited conduct for industrial associations
Clause 107 sets out the conduct that is prohibited under this chapter for an
industrial association.
Certain actions by representative not prohibited conduct
Clause 108 provides a defence for an industrial association for prohibited
conduct engaged in by its representatives. The defence is established where
the prohibited conduct was engaged in during or in connection with
industrial action, provided the representative acted without the knowledge of
the governing body, and the governing body, by the exercise of due
diligence, could not have prevented the conduct.
Provision requiring or permitting prohibited conduct
Clause 109 provides that any industrial instrument or arrangement is void to
the extent that it requires or permits conduct prohibited under this chapter.
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Encouragement provisions permitted
Clause 110 limits the operation of clause 109. It permits provisions in
instruments or industrial agreements that encourage a person to join or
maintain membership of an industrial association, provided such provisions
do not coerce a person to join or maintain membership of an industrial
association.
PART 3--ExEMPTION FROM MEMBERSHIP
Who may apply for exemption
Clause 111 limits the persons who may apply for an exemption certificate to
those who hold conscientious beliefs as defined in clause 102.
Procedure for hearing
Clause 112 requires the magistrate or registrar to follow the procedures for
the grant of an exemption certificate as prescribed under a regulation.
Deciding application
Clause 113 empowers the registrar or magistrate to grant an application for
an exemption certificate only where they are satisfied that the applicant
genuinely holds conscientious beliefs as defined in clause 102, and the
applicant has paid into the court or the registry an amount equal to the
annual subscription fee for the organisation from which they are seeking an
exemption.
How payment must be applied
Clause 114 provides that the amount paid by an applicant under clause 112
must be paid into the consolidated fund.
Exemption certificate
Clause 115 provides that, upon granting an application under this part, the
magistrate or registrar must give the successful applicant a certificate stating
that they are exempt from membership of the organisation named in the
certificate because of their conscientious beliefs. The certificate must also
state the date that it takes effect.
Expiry of exemption certificate
Clause 116 provides that an exemption certificate remains in force for one
year after the date it is stated to take effect.
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PART 4--CiVIL REMEDIES
Who may apply
Clause 117 establishes who may apply for a remedy for a breach of this
part.
Conciliation required before hearing
Clause 118 requires that the commission must attempt to resolve, by
conciliation, the matters in the application and any matters that might arise
out of the application. It also requires the commission to advise the parties
in the conciliation process of any remedies that may be granted should the
application proceed to hearing.
Right to be heard
Clause 119 provides that, before making an order under clause 120, the
commission must ensure that the entity against whom the order is to be
directed has an opportunity to be heard on the matter of whether prohibited
conduct has been engaged in, or is proposed to be engaged in, and on the
appropriateness of any orders.
There is an exception to this requirement in the case of an interim
order or injunction; i.e. the commission is not prevented from making
an interim order or injunction, even if the entity against which it is
made has not been given an opportunity to be heard.
Remedies
Clause 120 provides for the various remedies that the commission may
order for a breach of this part. The commission may order one or more of
the available remedies for any breach.
The remedies available are payment of a penalty, reinstatement of an
employee, re-engagement of an independent contractor, payment of
compensation, and orders preventing any further breach or threats of
breach.
The commission may also order an injunction to prevent a breach
from occurring or continuing to occur, or to remedy the effects of any
breach that has already occurred. In addition, the commission may
make any other order that is consequential to a remedy ordered under
this clause.
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Payment of civil penalty
Clause 121 provides that if the commission orders a penalty to be paid
under clause 120, that penalty shall be paid to the consolidated fund unless
the commission orders that all or part of it be paid to another entity.
Evidence of prohibited conduct
Clause 122 deems evidence of a breach of a provision of this chapter by
stated persons or bodies of an industrial association to also be evidence of a
breach by the industrial association. The stated persons or bodies include:
· the management committee;
· an officer or agent acting in that capacity;
· a member or group of members, but only if they are authorised by
the association's rules or management committee or an officer or
agent of the association acting in that capacity;
· a member, but only if that member is dealing with an employer or
principal on behalf of themselves and other members.
Where evidence is tendered of a breach of a provision of this chapter
by a director, another officer or an employee of a corporation, then
that evidence is also evidence of a breach by the corporation, but only
where the director, officer or employee was acting in that capacity.
CHAPTER 5--AWARDS
PART 1--FORM AND APPLICATION
Form, effect and term of award
Clause 123 provides for an award to be in the form approved by the
commission. The award has the force of law through the State, unless its
operation is restricted in accordance with subclause (2).
Persons bound by award
Clause 124 specifies the parties on whom an award is binding subject to
clause 653 (Effect on certain instruments) and to all exemptions ordered by
the commission under clause 132 (Exemptions) or 234 (Remedies on show
cause).
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PART 2--COMMISSION'S POWERS
Making, amending and repealing awards
Clause 125 provides that the commission may make, amend or repeal an
award on its own initiative or by application by certain parties. In doing so,
the commission is required to provide, among other things, fair and just
employment conditions.
Content of awards
Clause 126 requires the commission to ensure that those matters provided
in the clause are contained in an award. As examples, these matters include:
· conditions that are suited to the efficient performance of work
according to the needs of particular enterprises, industries or
workplaces; and
· conditions that take account of the efficiency and effectiveness of
the economy.
Dispute resolution procedures in each award
Clause 127 requires that the commission must ensure that a dispute
resolution procedure is contained in each award, whether through agreement
by the parties or by direction of the commission.
Awards that fix wage rates
Clause 128 provides that, when fixing wage rates for employees, the
commission:
· must fix equal wage rates for men and women employed by the same
employer performing work of equal or comparable value;
· may fix wage rates for persons under 21 on a progressive scale based
on the wage rates payable to employees 21 years or over in the same
calling;
· must consider the age and experience of persons under 21 years of age.
Flow-on of certified agreements
Clause 129 provides for the inclusion in an award of provisions from a
certified agreement only if the commission is satisfied of certain matters.
Review of awards
Clause 130 provides that the commission, on its own initiative or on the
application of a party to the award, may review an award.
A party may apply to the commission to amend a provision of an award
about wages or employment conditions.
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The clause also provides for the regular review of awards, every three years,
by the commission. In reviewing an award the commission must do what
is required by clauses 126 (Content of awards), 127 (Dispute resolution
procedures in each award) and 128 (Awards that fix wage rates).
Review of awards referred by the Anti-Discrimination Commission
Clause 131 provides that the commission must review an award that is
referred to it by the Anti-Discrimination Commission on the grounds that it
is discriminatory. In addition to the parties to the review, the
Anti-Discrimination Commission is also a party.
PART 3--EXEMPTIONS
Exemptions
Clause 132 provides that the commission may by application or on its own
initiative exempt from the application of the award an employer or class of
employers, or employee or class of employees.
The commission may only give the exemption if satisfied:
· it is the best interests of the employees and employers concerned; and
· it is not contrary to the public interest.
PART 4--GENERAL
Enforceability of awards
Clause 133 preserves section 137 of the Workplace Relations Act 1997 by
providing that action cannot be taken to enforce the provisions of an award
until 21 days after it is published in the industrial gazette.
Effect of appeals on awards
Clause 134 provides that the commission must immediately amend an
award to give effect to a decision of the Court of Appeal, court or full bench
affecting the award or a decision of the court affecting the award on a case
stated by the commission.
Inconsistency between awards and contracts
Clause 135 continues the provisions of section 139 of the Workplace
Relations Act 1997 by providing that the provisions of an award prevail
over any provision in a contract of service, where the provision of the
contract is less favourable to the employee.
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However, no inconsistency arises only because the contract provides
for employment conditions more favourable to the employee than the
award.
Part 5--Wages and Employment conditions for apprentices and
trainees
To facilitate the objectives of the Bill, provisions relating to
employment for apprentices and trainees, under registered training
agreements that were previously contained in the Vocational
Education, Training and Employment Act 1991, have been removed
and included in this Bill. Accordingly, an apprentice or trainee will
have all the rights of an "employee" under this Bill except where
specifically excluded: for example, unfair dismissal provisions.
Apprentices' and trainees' employment conditions
Clause 136 provides that an apprentice or trainee is entitled to the same
conditions of employment as those fixed by the industrial instrument
applicable to other employees in the same workplace.
A definition of "industrial instrument" is provided for this clause.
Order setting minimum wages and conditions
Clause 137 provides that the commission may make orders fixing
minimum wages and employment conditions for apprentices and trainees,
regardless of whether they are employed under an industrial instrument or
not.
Where there is inconsistency between an order and an industrial instrument,
the order will prevail.
A definition of "industrial instrument" is provided for this clause.
Order setting tool allowance
Clause 138 provides that the commission may make an order for the
provision of tools, or a tool allowance, for apprentices. An employer must
not contravene such an order. The maximum penalty is 40 penalty units.
The clause establishes remedies that a magistrate may apply to the employer
contravening an order. The magistrate may express the order in the
alternative so that the employer may decide how to comply with it.
The court must pay an amount paid under this clause to the apprentice.
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Termination of employment before apprenticeship or traineeship
cancelled or completed
Clause 139 provides that, if the employer is training an apprentice under an
apprenticeship or a trainee under a traineeship, the apprentice's or trainee's
employment with the employer cannot be terminated unless the
apprenticeship or traineeship is completed or is cancelled under the
Vocational Education, Training and Employment Act 1991, part 3 (Training
administration).
The maximum penalty is 40 penalty units.
Part 6--labour Market Programs
Orders for wages and employment conditions
Clause 140 (1) provides that the commission may make an order setting
wages and conditions for employees who participate in labour market
programs.
In making an order the commission may consider any matter it considers
relevant, together with those matters provided for in the clause. As an
example, the clause provides that the commission may determine
remuneration to be a combination of a wage paid by the employer and
benefits that the participants receive from the State or Commonwealth.
CHAPTER 6--AGREEMENTS
PART 1--CERTIFIED AGREEMENTS
Division 1--Making agreements
Certified agreements
Clause 141 establishes that a certified agreement may be made between an
employer and a group of employees, being either all employees of the
employer or a category of the employees of the employer. The certified
agreement covers all employees in the group, whether they were employed
before or after the commencement of the agreement.
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The clause defines "group of employees" for this part. Agreements
may be made for employees of a single employer, a multi-employer, a
project or proposed project, a new business and the State.
The dictionary at schedule 5 provides a definition of "new business"
for this part. A "new business" does not include the construction of
the new workplace. A definition of construction is provided in the
dictionary at schedule 5 and means "building and construction, civil
and engineering construction or demolition work".
For the purposes of this part "building and construction" as part of
the definition of "construction" is to have the meaning of the term
"building and construction industry" as provided for in the Building
and Construction Industry (Portable Long Service Leave) Act 1991 (see
section 3 Definitions).
Who may make certified agreements
Clause 142 provides that a certified agreement may be made between the
employer and either one or more employee organisations, who are entitled
to represent the employees concerned, or the employees.
Proposed parties to be advised when agreement proposed
Clause 143 establishes what must be done when a person (the proposer)
proposes to make a certified agreement. The proposer must give notice to
certain persons, and also provides the time periods within which notice
must be given.
The proposed parties to either a project agreement or a
multi-employer agreement must notify the proposer of their intention
of being a party within 21 days of receiving advice of the proposed
agreement. In addition, a proposed party to a project agreement must
notify the commission of their intention to be included.
The clause provides definitions for the terms "multi-employer
agreement" and "relevant employee organisation".
What is to be done when an agreement proposed
Clause 144 provides the action that must be taken when a certified
agreement is proposed to be made with employees who are employed in a
current business undertaking.
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The employer must take reasonable steps to ensure that employees are
given certain information at least 14 days before the employees are
asked to approve the proposed agreement. The employer must also
ensure that the terms and the effect of the terms are explained to every
relevant employee, before an approval is given.
Where the agreement is proposed to be made with employees, each
employee is to be informed that they may seek assistance from a
relevant employee organisation to represent them.
If an employee organisation is asked by a relevant employee to
represent an employee, it must be given a reasonable opportunity to
represent the employee in negotiations with the employer. This right
stops operating in certain circumstances. A definition of "relevant
employee organisation" is provided.
Negotiations for project agreements
Clause 145 requires an employer to negotiate with a single bargaining unit,
or through a person nominated by a single bargaining unit, if more than one
employee organisation has given notice under clause 143 (4) that they want
to be part of a project agreement.
A definition of the term "single bargaining unit" is provided.
Negotiations must be in good faith
Clause 146 requires that negotiations for a proposed agreement must be
conducted in good faith. Examples of good faith in negotiating are given.
Peace obligation period to assist negotiations
Clause 147 provides that certain action cannot be taken during the peace
obligation period. A definition is provided of the term "peace obligation
period".
Assistance in negotiating by conciliation
Clause 148 applies after the peace obligation period has ended, in specified
circumstances. In this event, the commission may use the conciliation
powers provided in clause 230 (Action on industrial dispute) as if the
section applied to negotiations for a certified agreement. The commission
may also make certain orders.
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Arbitration if conciliation unsuccessful
Clause 149 specifies action that the commission may take if it considers that
conciliation under clause 147 has not been successful for specified reasons.
To determine the matter by arbitration, the commission:
· has the powers of clause 230 (Action on industrial dispute) as if it
applied to negotiations for a certified agreement; and
· may give directions or orders of an interlocutory nature; or
· may order that clause 174 (Protected industrial action) does not apply
from the time of making the order until the commission determines the
matter by arbitration.
In exercising the arbitration powers, the commission must consider at least
certain prescribed matters. These considerations include the likely effect on
the community, the economy, industry generally and the particular
enterprise or industry concerned.
The full bench may establish principles concerning arbitration of certified
agreements. Once these principles are established, the commission must
exercise its power to arbitrate in a manner that is consistent with the
principles.
Determinations made under s 149
Clause 150 establishes procedural matters regarding determinations made
under clause 149.
Steps to be repeated if proposed agreement amended
Clause 151 establishes those steps that need to be taken, or not taken, if a
proposed agreement is amended.
Certificate as to requested representation
Clause 152 provides that an employee organisation may apply to the
registrar for a certificate stating that a relevant employee has requested the
organisation represent the employee in negotiations for a certified
agreement.
The employer may apply to the registrar for a certificate stating that the
employer need not negotiate with the organisation because the employee has
withdrawn the request for the organisation to represent them, or the
employee has ceased to be a relevant employee.
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Division 2--Certifying agreements
Time for applying for certification
Clause 153 provides that an application to certify a proposed agreement
must be made within 21 days after the date on which the agreement is
signed by or for all parties.
Notice of hearing
Clause 154 requires that the registrar must take prescribed action before an
application for certification is to be heard.
Right of employee organisation to be heard
Clause 155 provides that all relevant employee organisations have a right to
be heard on an application for certification of an agreement.
The commission must notify all relevant employee organisations that
an application has been made and that the organisation is entitled to
be heard.
The term "relevant employee organisation" is defined.
Certifying an agreement
Clause 156 provides the matters that the commission must consider before
certifying an agreement.
When commission to refuse to certify an agreement
Clause 157 prescribes the circumstances in which the commission must
refuse to certify an agreement.
Other options open to commission instead of refusing to certify an
agreement
Clause 158 preserves the provisions of section 27 of the Workplace
Relations Act 1997 by specifying action, other than refusing to certify an
agreement, that the commission can take if it is unable to certify an
agreement because of the provisions of clauses 156 or 157.
Procedures for preventing and settling disputes
Clause 159 provides that the procedures for preventing and settling disputes
contained in a certified agreement may, with the commission's consent,
allow the commission to settle a dispute.
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Division 3--No-disadvantage test
When a certified agreement passes the no-disadvantage test
Clause 160 provides that a certified agreement passes the no-disadvantage
test if it does not disadvantage employees in relation to their employment
conditions.
An agreement may disadvantage an employee only if the commission
considers its certification would result in a reduction in the employees'
entitlements or protections.
If the commission considers that, in the context of the employment
conditions considered as a whole, the reduction is not against the
public interest, an agreement can disadvantage an employee.
The president may require the registrar to prepare a report comparing
the agreement with the employee's entitlements or protections. A
definition of "entitlements or protection" is provided for use in this
section.
Special case--employee eligible for supported wage system
Clause 161 provides that, if an agreement sets the wages of an employee
eligible for the supported wage system at a rate not less than the rate set in
accordance with that system, then the certification of the agreement is not to
be taken to result in a reduction of the employee's wages.
Special case--employee undertaking approved apprenticeship or
traineeship
Clause 162 provides that, if wages payable under a certified agreement to an
employee undertaking an approved apprenticeship or traineeship are no less
than wages calculated in accordance with this clause, those wages will not
be taken to reduce the employee's wages for the purpose of the
no-disadvantage test.
The clause excludes a traineeship where the trainee is paid in accordance
with the Training Wage Award--State and the National Training Wage
Award 1994.
A definition of "benchmark training" is provided for use in this clause.
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Determination of designated awards
Clause 163 requires the commission, on application, to designate an
appropriate award to use as the comparison for the no-disadvantage test
where it is proposed to make an agreement and there is no relevant award
applicable to some or all of the persons to be covered by the proposed
agreement.
Division 4--Effect of certified agreements
When a certified agreement is in operation
Clause 164 establishes the time period in which an agreement operates.
Certified agreement's effect on awards, agreements or orders
Clause 165 provides that a certified agreement, while operating, prevails
over another award, industrial agreement or order made under clause 137.
An operational project agreement operates to the exclusion of any
other certified agreement or QWA.
Persons bound
Clause 166 specifies who is bound by a certified agreement. These include:
· the employer--whether as a member of an organisation of
employers or an employer who made an agreement;
· all relevant employees;
· any employee organisations with whom the agreement was made.
Where an agreement is made between an employer and employees, the
commission must also determine whether the agreement binds an
employee organisation, if specified conditions are met.
Successor employers bound
Clause 167 establishes that a successor to the whole or part of a business
becomes a party to any certified agreement operating in that business or part
of a business. The previous employer stops being bound.
Division 5--Extending, amending or terminating certified agreements
Extending a certified agreement
Clause 168 provides means for the nominal expiry date of a certified
agreement to be extended.
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The clause does not apply to:
· an agreement made with an employee organisation for a business
that an employer proposes to commence; and
· an agreement that did not pass the no-disadvantage test, but was
approved as not being against the public interest.
Amending a certified agreement
Clause 169 establishes the method of amending a certified agreement.
The clause does not apply to an amendment of the parties to the
agreement, except if the amendment is to a multi-employer agreement.
Amendment if discrimination between unionists and non-unionists
Clause 170 provides that, if one or more employees whose employment is
not subject to the agreement (but would be, depending on their membership
or non-membership of an employee organisation) ask the employer to
amend the agreement to cover their employment, and seek commission
approval for the amendment, the employer must comply with their request.
Other options open to commission instead of refusing to approve
amendment of an agreement
Clause 171 provides action that the commission may take, other than
refusing to approve the agreement, if not satisfied that a proposed
amendment to a certified agreement can be certified.
Terminating a certified agreement on or before its nominal expiry date
Clause 172 allows the employer and one or more of the organisations
bound by the agreement to terminate it by notice on or before its nominal
expiry date. Before the commission terminates the agreement, a valid
majority of relevant employees must approve of its termination.
Terminating an agreement after its nominal expiry date
Clause 173 provides the means by which an agreement may be terminated
after its nominated expiry date.
Division 6--Industrial action
Protected industrial action
Clause 174 provides that a protected person, or the employer, may organise
or engage in industrial action for the purpose of:
· supporting or furthering claims made in relation to a proposed
agreement; or
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· responding to industrial action by the employer or the relevant
employees.
An action for the industrial action which is taken after the peace
obligation period does not lie under any law, unless the action has
involved, or is likely to involve personal injury, wilful or reckless
destruction of, or damage to, property or the unlawful taking or
keeping or use of property. However, this does not apply to a strike or
lockout unless the protected person or employer has genuinely tried to
reach agreement.
An action for defamation can be brought in respect of anything that
happened during the industrial action. A definition of "protected
person" is given for use in this part.
Notice of industrial action to be given
Clause 175 provides that the provisions of clause 174 (1) do not apply
unless the party intending to take action gives all the negotiating parties
notice of the action as specified in this clause.
Secret ballot about taking industrial action
Clause 176 provides for the commission to order a secret ballot (see clause
285 (Conducting a secret ballot)) to be taken to discover the attitude of
employees towards taking industrial action. A definition of the term
"organisation" is given for use in this clause.
Industrial action must be properly authorised
Clause 177 provides that engaging in industrial action by members of an
employee organisation that is a negotiating party is only protected action if it
is properly authorised. Details of how the industrial action is to be properly
authorised are prescribed in the clause.
No protection if certification application not timely
Clause 178 provides that any industrial action undertaken, which occurred
for the purposes of making the agreement, is not protected if an application
for approval for its certification is not made within 21 days of the making of
the agreement.
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Employer not to dismiss employee for engaging in protected action
Clause 179 preserves the provisions of section 52 of the Workplace
Relations Act 1997 by providing that the employer must not take, or
threaten to take, certain action wholly or partly because the employee is
proposing to engage, is engaging or has engaged in protected action.
Remedies if employee dismissed etc. for engaging in protected action
Clause 180 provides remedies for an employee in the circumstances where
the employer contravenes the provisions of clause 179 (1).
When industrial action must not be taken
Clause 181 prohibits certain action from being taken by an employee, an
employee organisation, an officer or employee of an employee organisation
or an employer. The action is prohibited from the time a certified agreement
starts operating until its nominal expiry date, or while a determination under
clause 149 (Arbitration if conciliation unsuccessful) operates. An employer
must not lock out an employee for the purpose of supporting or advancing
the employer's claim.
Division 7--Penalty provisions
Penalty provisions
Clause 182 identifies the clauses in this division that are penalty provisions.
Penalties for contravening penalty provisions
Clause 183 continues the provisions of section 63 of the Workplace
Relations Act 1997 by providing that a contravention of the penalty
provisions set out in clause 182 is not an offence. However, a magistrate
may impose a penalty on a person who contravenes a penalty provision.
The clause specifies who may make an application for an order under
each of the penalty provisions.
Division 8--General
Secret ballot on valid majority
Clause 184 provides that, if the commission is not satisfied that a valid
majority of employees covered or to be covered by a certified agreement
have genuinely made or terminated the agreement or given approval, it may
order a secret ballot. A majority vote will satisfy the commission of the
requirement.
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Coercion of persons to make, amend or terminate certified agreements
etc.
Clause 185 prohibits coercion in relation to making, amending, terminating
or extending the nominal expiry date of an agreement, but does not prohibit
industrial action that is protected action.
The clause also prohibits an employer from coercing or attempting to
coerce an employee from making (or withdrawing) a request that he or
she be represented by an industrial organisation of which they are a
member in relation to an agreement the employer proposes to make.
A definition of "take or refrain from taking" is provided for this clause.
Complementary laws
Clause 186 provides that the Commonwealth provisions relating to certified
agreements apply as a law of the State with any amendments prescribed
under a regulation.
PART 2--QUEENSLAND WORKPLACE AGREEMENTS
Division 1--Preliminary
Definitions for pt 2
Clause 187 provides definitions for terms used in this part.
Proposed QWAs and ancillary documents--interpretation
Clause 188 preserves the provisions of section 69 of the Workplace
Relations Act 1997 by clarifying the references in this part to QWAs or
ancillary documents (an agreement to vary, extend or terminate a QWA) or
references to employers and employees.
Functions and powers of commission
Clause 189 requires how the commission must perform its functions under
this part. Clause 320(4) (Basis of decisions of the commission and
magistrates) does not apply to the performance of the commission's
functions under this part.
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Division 2--General rules about QWAs and ancillary documents
QWAs and ancillary documents only have effect as provided by this
part
Clause 190 preserves the provisions of section 72 of the Workplace
Relations Act 1997 by providing the time from which a QWA or ancillary
document takes effect.
Collective QWAs
Clause 191 preserves the provisions of section 73 of the Workplace
Relations Act 1997 by providing that two or more agreements that have
been negotiated collectively may be included in the same document if the
same employer is party to all the agreements.
A QWA for a new employee cannot be included in the same document
as a QWA for an existing employee.
Division 3--Making, amending or terminating a QWA
Employer and employee may make a QWA
Clause 192 provides that, subject to the exceptions contained in this clause,
an employer may make a QWA with an employee.
Matters to be included in QWA
Clause 193 preserves the provisions of section 75 of the Workplace
Relations Act 1997 and provides the matters that must be included in a
QWA.
Nominal expiry date of QWA
Clause 194 preserves the provisions of section 76 of the Workplace
Relations Act 1997 and provides that a QWA must specify a nominal
expiry date. The clause also allows the employer and employee to make a
written agreement to extend the nominal expiry date.
Period of operation of QWA
Clause 195 preserves the provisions of section 77 of the Workplace
Relations Act 1997 and provides the point of time at which a QWA
commences and stops operating.
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Bargaining agents
Clause 196 provides that an employer or employee may appoint a
bargaining agent to act on their behalf for the making, approval, amendment
or termination of a QWA.
Where an employer proposes the QWA, they must inform the
employee of their right to appoint a bargaining agent.
Amending a QWA
Clause 197 preserves the provisions of section 79 of the Workplace
Relations Act 1997 and provides for the amendment, in writing, of QWAs
and the time at which the amended QWA takes effect.
Terminating a QWA
Clause 198 preserves the provisions of section 80 of the Workplace
Relations Act 1997 and provides that the employer and employee may at
any time make a written agreement to terminate the QWA.
Division 4--Filing QWAs and ancillary documents
Filing QWAs and ancillary documents
Clause 199 provides that a QWA or ancillary document may be filed with
the registrar or chief inspector.
The conditions under which a filing receipt is to be given are
prescribed.
Filing requirements
Clause 200 establishes the requirements that must be met before a filing
receipt under clause 199 may be given for a QWA or an extension
agreement, termination agreement and termination notice.
Employer's declaration must be accurate
Clause 201 preserves the provisions of section 83 of the Workplace
Relations Act 1997 and provides that, in filing a declaration under this part,
the employer must not make a statement that the employer knows, or ought
reasonably to know, is false or misleading.
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Division 5--Approving QWAs and ancillary documents
Additional approval requirements for QWA and ancillary documents
Clause 202 preserves the provisions of section 84 of the Workplace
Relations Act 1997 and provides additional requirements that are necessary
for approval of a QWA, an amendment agreement, an extension agreement
and a termination agreement. A definition of "comparable employee" is
provided for this clause.
Approving QWA
Clause 203 provides that the commission must approve a QWA if it meets
the requirements of this clause.
Action that the commission must take if the proposed agreement does
not pass the no-disadvantage test is prescribed.
Approving amendment agreement
Clause 204 provides that the commission must approve an amendment
agreement if it meets the requirements of this clause.
Action that the commission must take if the agreement, as amended,
does not pass the no-disadvantage test is prescribed.
Approving other ancillary documents
Clause 205 provides that the commission may approve an extension
agreement, a termination agreement or a termination notice if the document
meets the additional approval requirements for the document prescribed in
clause 202.
Commission must issue approval or refusal notice
Clause 206 requires the commission to issue an approval or refusal notice
to the employer or employee, and must issue a notice to the employee to the
effect that the QWA does not pass the no-disadvantage test.
Undertakings taken to be included in QWAs
Clause 207 provides that an undertaking accepted by the commission is
taken to be included in the QWA.
Commission to issue copies of approved QWAs and ancillary
documents
Clause 208 requires that the commission must issue the employer with a
copy of a QWA or ancillary document as approved.
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Division 6--No-disadvantage test
When does a QWA pass the no-disadvantage test
Clause 209 provides that a QWA passes the no-disadvantage test if it
does not disadvantage the employee in relation to their employment
conditions.
A QWA may disadvantage an employee in relation to their
employment conditions only if the commission considers its approval
would result in a reduction in the employee's entitlements and
protections.
The president may request the registrar to give the commission a
report comparing the QWA with the employee's entitlements and
protections.
Definitions are provided for the terms "certified agreement" and
"entitlements and protections".
Special case--employee eligible for supported wage system
Clause 210 provides that if a QWA sets the wages of an employee eligible
for the supported wage system at a rate not less than the rate set in
accordance with that system, then the approval of the agreement is not to be
taken to result in a reduction of the employee's wages.
Special case--employee undertaking approved apprenticeship or
traineeship
Clause 211 provides that, if wages payable under a QWA to an employee
undertaking an approved apprenticeship or traineeship are no less than
wages calculated in accordance with this clause, those wages will not be
taken to reduce the employee's wages for the purpose of the
no-disadvantage test. The calculation involves the identification of an
apprentice's or trainee's wages in consideration of the time spent in
apprenticeship and traineeship courses and time spent at work. The clause
excludes a traineeship where the trainee is paid in accordance with the
Training Wage Award--State and the National Training Wage Award
1994.
A definition is provided for the term "benchmark training" for use in this
clause.
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Determination of designated awards
Clause 212 provides that the commission, on application, may designate an
appropriate award to use as the comparison for the no-disadvantage test.
The clause applies only where it is proposed to make a QWA and there is
no relevant award applicable to the employee.
Division 7--Effect of a QWA
QWA's effect on awards, certified agreements or orders
Clause 213 provides that, during its period of operation, a QWA excludes
the operation of an award that would otherwise have effect on the
employment of the employee.
During its period of operation, a certified agreement or a
determination prevails over a QWA to the extent of any inconsistency.
However, the
QWA prevails over the certified agreement or the determination if they
have a provision that expressly allows a QWA made after the certified
agreement:
· to operate to the exclusion of the certified agreement; or
· to prevail over the certified agreement or determination to the
extent of any inconsistency.
A definition of the term "QWA provision" is provided.
QWA binds employer's successor
Clause 214 provides that, where an employer is a party to a QWA and at a
later time a new employer becomes a successor to the whole or part of a
business in which the QWA operates, the new employer replaces the
employer as a party to the QWA.
Parties must not contravene QWA
Clause 215 preserves section 93 of the Workplace Relations Act 1997 by
providing that a party to a QWA must not contravene the QWA.
Conciliation for agreements
Clause 216 establishes that, for a matter arising under this part, the
commission has the conciliation power set out in clause 230 (Action on
industrial dispute), as if that clause applied to the matter.
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Industrial action by party to QWA
Clause 217 preserves section 95 of the Workplace Relations Act 1997 by
requiring that, during the period of operation of a QWA and before its
nominal expiry date, a party to it must not engage in industrial action in
relation to the employment to which the QWA relates.
Division 8--Enforcement and remedies
Penalties for contravening this part
Clause 218 preserves the provisions of section 96 of the Workplace
Relations Act 1997 and provides that, upon application, a magistrate may
impose a penalty on a person who contravenes a penalty provision. The
penalty provisions are identified in the clause.
Damages for contravention of QWA
Clause 219 preserves the provisions of section 97 of the Workplace
Relations Act 1997 by providing that a party to a QWA may recover in an
Industrial Magistrates Court any loss or damage suffered because of a
contravention of the terms of the QWA by the other party.
Compensation to new employee for shortfall in entitlements
Clause 220 establishes that an employee may make application to the
commission or an industrial magistrate for a shortfall in payment of
entitlements in the following circumstances:
· Where a QWA for a new employee is refused, the employee is entitled
to the difference if the amount of (a) is less than the amount of (b):
I. the total value of entitlements to which the employee became entitled
under the QWA for the period while it operated;
II. the total value of entitlements to which the employee would have been
entitled under an award or agreement had the QWA not been made, in
relation to the period of employment to which the QWA relates.
· Where a QWA has been approved for a new employee and it includes
an undertaking given by the employer, the employee is entitled to the
difference if the amount of (a) is less than the amount of (b):
III. the total value of the entitlements to which the employee became entitled
under the QWA for the period before it was approved;
IV. the total value of the entitlements to which the employee would have
been entitled for that period if the QWA, as filed, had included the
employer's undertaking.
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Injunctions
Clause 221 provides that a party to a QWA may apply to the commission
for an injunction requiring a person not to contravene, or to stop
contravening, this part.
Division 9--General
Hindering QWA negotiations
Clause 222 provides that a person who is not a party to negotiations for a
QWA or ancillary document must not use threats or intimidation with the
intention of hindering the negotiations or the making of the QWA or
ancillary document.
This clause does not apply to conduct by or for an employee
organisation for the purpose of negotiating a certified agreement if the
conduct is authorised by another provision of this Bill. A definition of
the term "party to negotiations" is provided for use in this clause.
Persons must not apply duress or make false statements in connection
with QWA etc.
Clause 223 preserves the provisions of section 105 of the Workplace
Relations Act 1997 by requiring that a person must not apply duress to an
employer or employee in connection with a QWA or ancillary document.
A person must not knowingly make a false or misleading statement to
someone else with the intention of persuading them to make or not to
make a QWA or ancillary document.
Employer must give copy of documents to employee
Clause 224 requires that the employer must give the employee specified
documents as soon as the employer receives them from the commission,
registrar or chief inspector.
Intervention not permitted
Clause 225 preserves the provisions of section 107 of the Workplace
Relations Act 1997 by providing that a person, other than those persons
specified, must not be heard in relation to the filing, approval, amendment
or termination of a QWA.
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Reports and advice about development in making QWAs
Clause 226 preserves the provisions of section 111 of the Workplace
Relations Act 1997 and requires that, on request of the Minister, the chief
executive must prepare a report about developments in the State in
bargaining for the making of QWAs.
For the purpose of preparing this report, the registrar must give the
chief executive, or their agent, access to approved QWAs and ancillary
documents.
Evidence
Clause 227 preserves the provisions of section 113 of the Workplace
Relations Act 1997 and allows the registrar to give a certified copy of an
approved QWA or ancillary document to a person who is or was a party to
the QWA or ancillary document.
The registrar may give a certificate about specified matters.
Signature for corporation
Clause 228 preserves the provisions of section 114 of the Workplace
Relations Act 1997 by providing that a QWA or ancillary document may be
signed on behalf of a corporation by its properly authorised officer and need
not be made under the seal of the corporation.
CHAPTER 7--INDUSTRIAL DISPUTES
PART 1--NOTICE OF INDUSTRIAL DISPUTE
Notice of industrial dispute
Clause 229 applies where an industrial dispute exists between:
· an employer organisation or an employer; and
· an employee organisation or an employee; and
remains unresolved after the parties have genuinely attempted to settle
the dispute. Each party must immediately notify the registrar of the
dispute.
The clause provides how notice may be given and what must be
included in the notice of dispute to the registrar.
If the Minister is aware an industrial dispute exists, the Minister may
notify the commission or registrar of the dispute.
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PART 2--ACTION FOR SETTLING INDUSTRIAL DISPUTES
Action on industrial dispute
Clause 230 provides that the commission (whether or not a notification is
given under clause 229) may take appropriate action for the prevention and
prompt settlement of the dispute.
While not restricting the commission's powers, the clause specifies
how the commission may take steps appropriate for the prevention or
prompt settlement of the dispute.
Where a dispute exists, the commission may nominate one of the
parties to the dispute as having the carriage of proceedings in the
matter and, where this is determined, the named party has the
carriage of proceedings accordingly.
The clause does not affect the operation of an industrial instrument
where the instrument imposes a duty on a party in relation to
industrial disputes.
Mediation by commission
Clause 231 provides that the commission may act as a mediator in an
industrial cause, whether or not it is in their jurisdiction, either at the request
of the parties directly involved in the cause or if it appears that mediation is
desirable in the public interest.
Compulsory conference
Clause 232 applies to action taken by the commission under clause 230 and
establishes that the commission, if it considers that it is desirable for the
prevention or prompt settlement of a dispute, may summons a person to
attend a conference at a stated time and place.
The conference may be held in public or private or partly in public
and partly in private.
A person summoned must attend. The maximum penalty is 40
penalty units.
Enforcing commission's orders
Clause 233 provides that the commission may direct an order about an
industrial dispute to certain parties and defines "full bench" for this part.
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Industrial Relations
The clause provides the requirements that must be contained in the
order.
The clause provides information that must be included in an affidavit,
if the commission has ordered that an affidavit be filed.
The clause provides the action that the registrar must take at the
completion of the time required for affidavits to be filed.
Remedies on show cause
Clause 234 provides remedies available to the full bench when an
organisation or person who has been issued with a show cause notice by the
registrar under clause 233 (7) does not show cause at the stated time. A
definition of "stated time" and "organisation" is provided for this clause.
PART 3--BALLOTS
Secret ballot on strike action
Clause 235 applies where:
· a strike happens; or
· the commission or a person applying to the commission considers a
strike is likely to happen.
The clause provides that the commission may, on application or if directed
by the Minister, direct the registrar to conduct a secret ballot to ascertain the
number of employees or members of an employee organisation who are in
favour of the strike.
The registrar must publish the result of the secret ballot in a newspaper
circulating in the locality concerned.
Effect of ballot adverse to strike
Clause 236 applies when a secret ballot was conducted under clause 235(4).
The clause provides that, where a majority of employees or members are
not in favour of a strike, the strike must be discontinued on or before a date
advertised by the registrar in a newspaper circulating in the locality
concerned.
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PART 4--INDUSTRIAL ACTION
Indemnity against agent's unauthorised actions
Clause 237 preserves section 247 of the Workplace Relations Act 1997 and
provides for the indemnification on certain grounds of an organisation or
association of persons against the unauthorised actions of an agent during or
in connection with industrial action.
Payments for strikes cannot be compelled
Clause 238 provides that an employer may pay, or refuse to pay, an
employee for a period when the employee engages in a strike.
An employee, employee organisation or officer, member or employee of
the organisation must not threaten to organise or engage in a strike,
with the intention of coercing the employer to make payment.
A definition of "strike" is provided for this clause.
Orders the commission may make
Clause 239 preserves section 249 of the Workplace Relations Act 1997 and
provides that specified persons may make an application to the commission
for orders under this clause for a contravention of clause 238.
Commission not to deal with claims for payments for strikes
Clause 240 preserves section 250 of the Workplace Relations Act 1997 and
provides that the commission cannot deal with an application for payment to
employees for a period when the employees engage in a strike.
Right to refuse to work if imminent health or safety risk
Clause 241 preserves section 251 of the Workplace Relations Act 1997 and
provides that an employee can refuse to perform work if a reasonable
concern exists about an imminent risk to the employee's health or safety,
and if the employee did not unreasonably contravene a direction of the
employer to perform other available work that was safe and appropriate to
perform.
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CHAPTER 8--INDUSTRIAL TRIBUNALS AND REGISTRY
PART 1--INDUSTRIAL COURT
Division 1--Industrial Court of Queensland
Continuance
Clause 242 provides that the Industrial Court as formerly established as a
superior court of record in Queensland is continued in existence as the
Industrial Court of Queensland under this Bill.
Division 2--President
President of the court
Clause 243 establishes the appointment of the president of the court as a
full-time appointment and provides for how the president shall be
appointed, who may not be so appointed and what qualifications, skills and
experience a person to be appointed must have.
When a judge is appointed as president
Clause 244 describes the consequence of a judge of the Supreme Court or
District Court being appointed as the president.
When president holds office
Clause 245 provides the conditions for holding office as president,
including the circumstances under which the president may resign from,
ceases to hold or may be removed from office. The clause also provides for
a contingency measure if the president stops holding office while hearing a
matter.
Acting president of the court
Clause 246 provides that the Governor in Council may appoint a person as
acting president. This clause applies only if the president temporarily cannot
perform the function of office. While acting as president, the nominated
person can attend sittings and give a decision or otherwise complete a
proceeding. A decision given is taken to be a decision of the president.
Division 3--Jurisdiction and powers of the court
Constitution of court
Clause 247 provides for the constitution of the Industrial Court as the
president sitting alone.
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Court's jurisdiction
Clause 248 establishes the jurisdiction of the court.
Court's interpretation
Clause 249 establishes that the court's interpretation of certain specified
matters is binding on the commission, magistrates, and organisations and
persons bound by this Bill.
Court may refuse to proceed
Clause 250 applies to proceedings before the court where an industrial
instrument exists or is sought, and establishes the conditions in which the
court may refuse to hear and determine a proceeding.
Contempt of court
Clause 251 establishes the protection, powers, jurisdiction and authority of
the court when dealing with a contempt of court.
Division 4--President's annual report
President's annual report
Clause 252 requires the president to provide an annual report to the Minister
on the operation of the Bill, the working of the court, commission registry
including summaries of significant decisions, interpretations and
agreements. The Minister must table a copy of the report in the Legislative
Assembly.
Division 5--President's advisory committee
Advisory committee established
Clause 253 establishes the president's advisory committee, describing its
composition and how members may be appointed (see also schedule 2, part
4, President's advisory committee).
Functions of advisory committee
Clause 254 establishes the function of the president's advisory committee.
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PART 2--INDUSTRIAL RELATIONS COMMISSION
Division 1--Continuance and composition
Continuance
Clause 255 preserves the existence of the Queensland Industrial Relations
Commission as a court of record.
Composition
Clause 256 establishes that the members of the commission are the
president, the vice president, commissioner administrator and at least 6
other industrial commissioners.
The full bench of the commission is constituted by the president and 2 or
more commissioners for appeal and deregistration proceedings or otherwise
3 or more members.
The commission's jurisdiction or existence is not affected by a vacancy in
any office of the commission.
Division 2--Membership of the commission
President of the commission
Clause 257 establishes that the president of the court is also the president of
the commission.
Vice president of the commission
Clause 258 provides for a vice president of the commission, describing the
eligibility and method of appointment for this position.
Commissioners
Clause 259 establishes the method of appointment of commissioners and
eligibility for appointment. The Governor in Council may appoint a
commissioner as the commissioner administrator by gazette notice.
The appointment as commissioner administrator is to be for a term of
at least 5 years stated in the notice. A commissioner holds office as
commissioner administrator until:
· the end of the term of appointment; or
· The commissioner resigns as commissioner administrator by
signed notice given to the Governor.
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The commissioner administrator may resign office as commissioner
administrator without resigning office as commissioner.
When commissioner holds office
Clause 260 provides the conditions for holding office as commissioner,
including the circumstances under which the commissioner may resign
from, ceases to hold or may be removed from office. The clause also
provides for a contingency measure if the commissioner stops holding
office while hearing a matter.
Acting vice president, commissioner administrator or other
commissioner
Clause 261 applies only if the vice president, commissioner administrator
or another commissioner temporarily cannot perform the functions of
office. In such a situation the Governor in Council may appoint a person to
act as the vice president, commissioner administrator or other
commissioner by industrial gazette notice.
Restrictions on appointment
Clause 262 describes those persons who cannot be appointed as
commissioners.
Removal of commissioners from office
Clause 263 establishes how and on what grounds a commissioner may be
removed from office.
Division 3--The commission
Administrative responsibilities for the commission
Clause 264 provides that the president in addition to performing the
functions of a member is responsible for the administration of the
commission and registry and the orderly and expeditious exercise of the
commission's jurisdiction and powers.
The role of the commissioner administrator is the same as the role of the
Senior Judge Administrator of the Supreme Court of Queensland (see
Supreme Court of Queensland Act 1991).
The commissioner administrator is responsible to the president for the
administration of the commission and the orderly and expeditious exercise
of the commission's jurisdiction and powers.
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The vice president of the commission is to assist the president to perform
the president's functions.
Commission's jurisdiction
Clause 265 establishes the commission's jurisdiction.
Commission to prevent discrimination in employment
Clause 266 requires the commission, when exercising a power under this
Bill, not to allow discrimination in employment.
Commission's jurisdiction is exclusive
Clause 267 establishes that the commission's original and appellate
jurisdiction is exclusive unless otherwise prescribed by this Bill.
Commission may refuse to proceed
Clause 268 provides the commission with a discretion to refuse to hear or
decide a proceeding which relates to an industrial instrument that exists or is
sought because any of the employees who are or would be bound by the
instrument are involved in an industrial dispute or are contravening this Bill
or a decision of the commission.
This discretion applies whether or not the employees are employees whose
employment may be affected by the decision of the proceeding.
President or commissioner administrator to consider efficiencies that
may be achieved by allocating matters to dual commissioners
Clause 269 requires the president or commissioner administrator, when
administering the commission and organising and allocating its work, to
consider whether it might be advantageous for powers to be performed and
exercised, for a particular matter, by a dual commissioner.
Reallocation of commission's work
Clause 270 allows the president or commissioner administrator to reallocate
a matter of proceedings before the commission.
Commission may continue to hear reallocated work without
re-hearing evidence.
Clause 271 allows a matter to be heard and decided by a reallocated
commission without re-hearing evidence given before the reallocation.
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Decision of full bench
Clause 272 establishes that a decision of the full bench is the decision of the
majority of its members.
Division 4--Commission's functions and powers
Commission's functions
Clause 273 establishes the commission's functions. A definition of
"occupational superannuation" is provided for this clause.
General powers
Clause 274 establishes the commission's general powers.
Power to declare persons to be employees
Clause 275 provides discretion to a full bench, on application, to make an
order declaring a class of persons who perform work in an industry under a
contract for services to be employees under this Bill.
A definition of "contract" and "industrial instrument" is provided for this
clause.
Power to amend or void contracts
Clause 276 establishes that the commission may on application amend or
declare void (wholly or partly) a contract. The clause describes those matters
that the commission may consider in deciding whether to amend or declare
void a contract's conditions.
A definition of "contract", "industrial instrument" and "unfair contract" is
provided for this clause.
Power to grant injunctions
Clause 277 provides that the commission may on application grant an
injunctive order as described by the clause, as it considers appropriate. The
clause describes who may make such an application and that a person to
whom the order is directed must comply with the order after the person has
received notice of it.
The commission cannot grant an injunctive order for a proposed
contravention of clauses 73 (When is a dismissal unfair), 83 (What
employer must do to dismiss employee), 87 (Orders about severance
allowances), 88 (Employer must give notice of proposed dismissals), or
89 (Employer must consult with employee organisations about
dismissals).
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A definition of "injunctive order" and "organisation" is provided for
this clause.
Power to recover wages and superannuation
Clause 278 establishes that an application may be made to the commission
for a claim for wages or occupational superannuation of an amount up to
$10 000. A definition of "occupational superannuation" is provided for this
clause.
Orders about representation rights of employee organisations
Clause 279 establishes that the full bench may, on application, make orders
about a demarcation dispute. A definition of "right to represent" is
provided for this part.
Procedures for reopening
Clause 280 provides that proceedings may be reopened on application and
describes those persons who may make an application, and the powers of
the commission, should it decide to reopen a matter.
Reference to full bench
Clause 281 establishes that the commission has the discretion to refer a
matter to the full bench.
Case stated to court
Clause 282 establishes that the commission may state a written case for the
industrial court's opinion on a question of law relevant to a proceeding. The
commission must give effect to the court's opinion.
Power to enter and inspect
Clause 283 preserves section 298 of the Workplace Relations Act 1997 and
provides that a member, an officer of the commission or another person
with a member's written authority may enter a workplace. This power may
be exercised only during working hours at the workplace. Should a person
impede this power the clause provides a maximum penalty of 40 penalty
units or 1 year's imprisonment.
A definition of "workplace" is provided for this clause.
Interpretation of industrial instrument
Clause 284 establishes that the commission may give an interpretation of an
award on application.
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Conducting a secret ballot
Clause 285 establishes that the commission may specify when, where and
how a secret ballot is to be conducted. The registrar is required to conduct
the ballot in accordance with the direction of the commission. The clause
prohibits any obstruction or intimidation by any person to anyone involved
in the conduct of, or voting in, a secret ballot.
A maximum penalty of 40 penalty units is provided.
A definition of "prevent", "resist or obstruct", "threaten or
intimidate" and "vote" is provided for this clause.
Other powers
Clause 286 preserves section 302 of the Workplace Relations Act 1997 and
establishes that this division of the Bill does not limit by implication another
power given to or possessed by the commission under this or another Act
or law.
General rulings
Clause 287 establishes that the full bench may make general rulings. A
definition of "Queensland minimum wage" is provided for this clause.
Statement of policy
Clause 288 establishes that the full bench may make a statement of policy
about an industrial matter whether or not the matter is before the
commission.
PART 3--INDUSTRIAL MAGISTRATES
Division 1--Industrial Magistrates Court
Industrial Magistrates Court
Clause 289 preserves section 307 of the Workplace Relations Act 1997 and
provides that an Industrial Magistrates Court is a court of record.
Division 2--Industrial magistrates
Office of Industrial Magistrate
Clause 290 preserves section 308 of the Workplace Relations Act 1997 and
provides that a stipendiary magistrate and an acting stipendiary magistrate
are both industrial magistrates.
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Division 3--Constitution and jurisdiction of Industrial Magistrates
Court
Constitution of Industrial Magistrates Court
Clause 291 preserves section 309 of the Workplace Relations Act 1997 and
establishes that a magistrate sitting alone constitutes an Industrial
Magistrates Court.
Magistrate's jurisdiction
Clause 292 establishes a magistrate's jurisdiction.
Magistrates' jurisdiction is exclusive
Clause 293 provides that a magistrate's jurisdiction is exclusive unless
otherwise provided for under this Bill.
PART 4--INDUSTRIAL REGISTRY
Division 1--Industrial Registry
Industrial Registry
Clause 294 establishes the Industrial Registry, which consists of an
industrial registrar, one or more deputy industrial registrars and other staff
mentioned in clause 303.
Functions of the registry
Clause 295 provides for the functions of the registry.
Seal of the registry
Clause 296 provides for a seal of the Queensland Industrial Registry.
Judicial notice must be taken of the imprint of the registry's seal on a
document and the document must be presumed to have been properly
sealed unless the contrary is proved.
Division 2--Industrial registrar and staff
Appointment of registrar
Clause 297 provides that the Governor in Council may appoint a person as
registrar. The registrar is to be paid the remuneration and allowances
determined by the Governor in Council.
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Termination of appointment of registrar
Clause 298 establishes the circumstances under which the Governor in
Council may terminate the registrar's appointment.
Functions and powers of registrar
Clause 299 specifies the registrar's functions and attendant powers available
to complete these functions. In performing a function or exercising a power,
the registrar must comply with a direction given in relation to the
performance or exercise by the president or commissioner administrator.
Deputy registrars
Clause 300 provides that a deputy registrar must help the registrar in the
performance of his or her functions.
Delegation by registrar
Clause 301 provides to whom the registrar may delegate his or her powers.
Acting registrar
Clause 302 provides that the Governor in Council may, by industrial gazette
notice, appoint a person to act as the registrar.
Staff
Clause 303 provides that the staff of the registry including the deputy
registrar are appointed under the Public Service Act 1996.
Officers of the court and commission
Clause 304 establishes that the registrar, deputy registrar and registry staff
are officers of the court and commission.
PART 5--ARRANGEMENTS WITH OTHER AUTHORITIES
Division 1--Member may also be member of Australian commission
Member may hold other appointment
Clause 305 enables a member to hold at the same time an appointment as a
member of the Australian Industrial Relations Commission.
Division 2--Dual commissioners
Appointment of Commonwealth official as commissioner
Clause 306 preserves section 320 of the Workplace Relations Act 1997 and
enables the appointment of a member of the Australian Industrial Relations
Commission to the Queensland Industrial Relations Commission.
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This clause also provides that, for the term of such appointment, a person so
appointed is not entitled to extra remuneration but is entitled to reasonable
expenses incurred, and states when such appointment ceases. These
provision accord with similar provisions in the Commonwealth Act.
Role of dual commissioner
Clause 307 preserves section 320 of the Workplace Relations Act 1997 and
provides that a member of the Australian Industrial Relations Commission
appointed under clause 306 may exercise dual powers as both an industrial
commissioner and a member of the Australian commission. This provision
accords with similar provisions in the Commonwealth Act.
Division 3--References to Commonwealth official
Reference of matter to Commonwealth official
Clause 308 defines "industrial matter" for the purposes of this clause, and
authorises the president, in consultation with the president of the
commission, to refer an industrial matter to a member of the Australian
Industrial Relations Commission nominated by the president of that
commission.
The nominated member has the powers of a commissioner and is taken to
constitute the commission. The referral of a matter to a federal
commissioner does not prevent the State commission from dealing with the
matter.
Division 4--Conferences and joint sessions with industrial authorities
Conferences with industrial authorities
Clause 309 enables the commission to confer, if the president considers it
desirable, with any State or federal industrial authority to secure
coordination of decisions between the jurisdictions.
Joint sessions with industrial authorities
Clause 310 enables a joint session with another industrial authority to be
initiated at the discretion of the president and if the other authority agrees.
Similar matters before full bench and industrial authority
Clause 311 provides that where a federal or State industrial authority is
dealing with a matter similar to a matter before a full bench of the
commission, and the other authority agrees, the president may delegate a
member of the full bench to participate in joint sessions and report back to
the full bench.
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Member's powers in joint session
Clause 312 provides that, while participating in a joint session, the member
must perform the function and has and may exercise the powers of the
commission.
President may decide matter not to be dealt with in joint session
Clause 313 enables the president to terminate participation in a joint session.
If the joint session has already commenced, the president may decide to
order the commission to cease participating in the joint session, and order
that the industrial matter proceed before the commission or, if appropriate,
the full bench.
Division 5--Other functions etc. and arrangements
Functions and powers vested in commission by other jurisdictions
Clause 314 preserves section 329 of the Workplace Relations Act 1997 and
authorises the commission to exercise powers and duties conferred on it by
the Workplace Relations Act 1996 (Cwlth) and the enactment of other
States.
Arrangements with Commonwealth public service
Clause 315 provides that arrangements may be made, under the Public
Service Act 1996, for an officer of the Commonwealth to perform functions
and exercise powers under this Bill. A definition of "Commonwealth public
servant" is provided for this part.
PART 6--PROCEEDINGS OF COURT, COMMISSION,
MAGISTRATES AND REGISTRAR
Division 1--Definitions
Definitions for pt 6
Clause 316 preserves section 331 of the Workplace Relations Act 1997 and
provides definitions of "administer", "exercising" and "take" for this part.
Division 2--Starting proceedings and service of process
Starting proceedings
Clause 317 preserves section 332 of the Workplace Relations Act 1997 and
specifies who may instigate proceedings by application before the court,
commission or registrar.
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Service of process
Clause 318 defines "document" for this clause and establishes the
processes of serving documents that are to be applied for proceedings in the
court and commission where personal service cannot in the view of the
president or registrar be effected promptly or in a way prescribed in the
rules. The clause gives power to the president, registrar and commission to
substitute service of the document.
Division 3--Conduct of proceedings
Representation of parties
Clause 319 provides a definition of "proceeding" for the purpose of this
clause. The clause specifies by whom a person ordered to appear or to be
represented in a proceeding may be represented.
In proceedings, a party to the proceedings, or a person ordered or
permitted to appear or to be represented in the proceedings may be
represented by an agent appointed in writing or if the party or person
is an organisation an officer or member of the organisation.
The clause also provides for strict limitations upon legal representation for a
person or a party to proceedings.
As an example, for proceedings before the commission, other than
proceedings under clause 278 (Power to recover wages and superannuation)
a party or person may be represented by a lawyer if and only if:
· the proceedings relate to a matter under Chapter 4 (Freedom of
Association); or
· all parties consent; or
· on application by a party or person the commission is satisfied having
regard to the matter the proceedings relate to that there are special
circumstances that make it desirable for the party or person to be
represented; or
· on application by a party or person, the commission is satisfied the party
or person can be adequately represented only by a lawyer.
In so determining these last two points the commission may consider:
· the amount claimed in the proceedings, if any;
· the nature and complexity of the matter;
· the nature of the evidence to be adduced;
· the cross-examination likely to be required;
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· the capacity of the party or person to represent themselves;
· the questions of law likely to arise; and
· whether the duration or cost of the proceedings will be decreased or
increased if the party or person is represented.
Basis of decisions of the commission and magistrates
Clause 320 provides that in proceedings the commission or Industrial
Magistrates Court is:
· not bound by technicalities, legal forms or rules of evidence; and
· may inform itself on a matter it considers appropriate in the exercise of
its jurisdiction.
The commission and Industrial Magistrates Court is to be governed in its
decisions by equity, good conscience and the substantial merits of the case
having regard to the interests of:
· the persons immediately concerned; and
· the community as a whole.
In making a decision the commission must consider the public interest
and to that end must consider:
· the objects of this bill; and
· the likely effects of the commission's decision on the community,
local community, economy, industry generally and the particular
industry concerned.
In proceedings the commission may admit evidence given before, and
the findings of, the Anti-Discrimination Commission as evidence in the
proceeding.
The clause does not apply to proceedings for the recovery of amounts
other than an amount ordered under clause 278 (Power to recover
unpaid wages and superannuation contribution) or an offence against
this Bill.
Competence and compellability of witnesses
Clause 321 preserves section 336 of the Workplace Relations Act 1997, and
provides that any party to proceedings before the court or commission is
competent and may be compelled to give evidence to the same extent as in a
civil proceeding in the Supreme Court.
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Intervention
Clause 322 provides a definition of "industrial tribunal" for this clause and
specifies in what circumstances and by whom intervention in proceedings,
either before an industrial tribunal or in proceedings of another court, may
occur.
Adjournment by registrar
Clause 323 preserves section 338 of the Workplace Relations Act 1997 and
provides the registrar with powers to adjourn proceedings to another day
and time if the president or a member cannot attend the proceeding.
State employee to give information
Clause 324 preserves section 339 of the Workplace Relations Act 1997 and
deals with the furnishing of information by employees of the State in
proceedings before the court or commission.
Division 4--Powers
Exercise of commission's powers
Clause 325 preserves section 340 of the Workplace Relations Act 1997 and
provides that the commission may exercise its powers of its own initiative,
or on the application of a party to proceedings or an organisation. The
commission may also, of its own initiative, join two or more matters to be
heard whether those matters arose under this Bill or any Act. In so doing,
the matters can be heard and decided in one proceeding.
Interlocutory proceedings
Clause 326 prescribes the powers of the president, commission and the
registrar in relation to an interlocutory proceeding before the hearing of an
industrial cause.
Power to order inquiry or taking of evidence
Clause 327 preserves section 342 of the Workplace Relations Act 1997 and
provides that the commission may by order direct:
· the registrar to conduct an inquiry into a matter; or
· an appropriately qualified person to take evidence for the commission
about an industrial cause.
The clause provides certain powers to the registrar, which are incidental to
the exercise of the functions provided for in this part.
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Power to administer oath
Clause 328 preserves section 343 of the Workplace Relations Act 1997 and
specifies who under this Bill may take evidence and who may administer an
oath or take a statutory declaration.
Powers incidental to exercise of jurisdiction
Clause 329 preserves section 344 of the Workplace Relations Act 1997 and
provides for certain powers incidental to the exercise of the jurisdiction of
the court, commission and registrar.
Power to obtain data and expert evidence
Clause 330 preserves section 345 of the Workplace Relations Act 1997 and
allows the commission by order to obtain certain data and receive expert
evidence. Such information that is requested may not be divulged without
the commission's leave.
A maximum penalty of 20 penalty units is provided in the clause.
Division 5--Decisions and enforcement
Decisions generally
Clause 331 preserves section 346 of the Workplace Relations Act 1997 and
provides the decisions the court or commission may make in an industrial
cause.
Reserved decisions
Clause 332 preserves section 347 of the Workplace Relations Act 1997 and
provides in what circumstances the commission may reserve its decision in
a proceeding. It also provides the procedures in the case of a reserved
decision.
Commission decisions to be in plain English
Clause 333 preserves section 348 of the Workplace Relations Act 1997 and
requires the commission to ensure its decisions are in plain English and, as
far as the subject allows, are easy to understand.
Extent of decisions and their execution
Clause 334 preserves section 349 of the Workplace Relations Act 1997 and
provides the ways in which the court or commission may make a decision.
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Costs
Clause 335 provides that the court or commission may order a party to an
application to pay costs incurred by another party only if satisfied:
· the party made the application vexatiously or without reasonable cause;
or
· for an application for reinstatement, the party caused costs to be incurred
by the other party because of an unreasonable act or omission connected
with the conduct of the application.
A definition of "costs" is provided for this clasue.
Recovery of amounts under orders
Clause 336 provides the procedures the registrar must follow where the
court or commission orders an amount to be paid arising from proceedings.
The clause provides a definition of "registrar ".
Division 6--Protections and immunities
Protection and immunities
Clause 337 preserves section 356 of the Workplace Relations Act 1997 and
provides protections and immunities for the president, commission and a
magistrate in the exercise of their jurisdiction and in the case of defamation.
Division 7--Rules and practice
Rules
Clause 338 provides that the Governor in Council may make rules under
this Bill. The clause describes how such rules shall be made and upon what
matters such rules may be made.
Directions about practice
Clause 339 preserves section 358 of the Workplace Relations Act 1997 and
provides that directions about the practice and procedure of the court,
commission, Industrial Magistrates Court or the registrar shall be as
directed by the president, a commissioner, a magistrate or the registrar.
Applications may be made where a rule does not provide or
sufficiently provide for a step a person wishes to take in a industrial
cause.
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CHAPTER 9--APPEALS
Division 1--Appeals to Court of Appeal
Appeal from court or full bench
Clause 340 provides for appeals from decisions of the court or full bench to
the Court of Appeal where:
· a defendant is dissatisfied with a decision of the court in proceedings
under clause 251 (contempt of court); and
· the Minister or another person is dissatisfied with a decision of the
full bench, which included the president. An appeal is available
only on the ground of error of law or excess, or want of
jurisdiction.
The clause provides for the remedies available to the Court of Appeal
on hearing an appeal.
Division 2--Appeals to Court
Appeal from commission, magistrate or registrar
Clause 341 provides for appeals from decisions of the commission,
magistrate or registrar.
The Minister, or a person dissatisfied with a decision of the commission or
registrar, may appeal to the court only on the grounds of:
· error of law; or
· excess, or want, of jurisdiction.
An appeal under this clause is not available in relation to a
determination under clause 149 (Arbitration if conciliation
unsuccessful) or a decision of the full bench that included the
president.
A person may appeal to the court if dissatisfied with a decision of a
magistrate under section 292 (Magistrate's jurisdiction) in relation to:
· the matters stated in clause 292; or
· the powers provided in clause 408 (Recovery of unpaid
superannuation).
The clause provides for the remedies available to the court on hearing
an appeal.
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Division 3--Appeals to full bench
Appeal from commission, magistrate or registrar
Clause 342 provides for appeals from decisions of the commission,
magistrate and registrar to the full bench.
With the leave of the full bench, the Minister or another person dissatisfied
with a decision of the commission may appeal against the decision to the
full bench, on a ground other than:
· error of law; or
· excess, or want, of jurisdiction.
If the Minister or another person wishes to appeal to the full bench on a
ground mentioned in clause 341(1) (Excess, error of law and want of
jurisdiction) and a ground mentioned in subclause (1), the appeal may
continue only with leave of the full bench.
The full bench must and may only give leave if it considers the matter is
important enough that, in the public interest, leave should be given.
A person dissatisfied with a decision of:
· a magistrate other than a decision under clause 341 (3) may appeal
against the decision to the full bench; and
· the registrar other than a decision under clause 287 (General rulings),
241(1) (Right to refuse to work) or 695 (Student's work permits) may
appeal against the decision to the full bench; and
· the registrar under clause 287 may appeal against the decision to the full
bench as it was constituted when the general ruling was made.
The clause provides for the remedies available to the full bench on hearing
an appeal.
Division 4--Appeals to commission
Appeal from registrar
Clause 343 provides for appeals from decisions of the registrar to the
commission. A person dissatisfied with a decision of the registrar under
clause 695 (Student's work permit) may appeal to the commission.
The clause provides for the remedies available to the commission on
hearing an appeal.
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Appeal to commission against stand-down
Clause 344 continues the provisions of section 367 of the Workplace
Relations Act 1997 and provides that an employee, or an employee
organisation, may appeal to the commission against the decision of an
employer to stand down an employee.
The clause provides for the remedies available to the commission on
hearing an appeal.
Division 5--General
Definition for div 5
Clause 345 defines "industrial tribunal" for this division.
Time limited for appeal
Clause 346 provides the time limits within which any appeal must be
lodged.
Stay of decision appealed against
Clause 347 provides that, if an appeal is lodged against a decision, the
tribunal hearing the appeal may wholly or partly stay the decision being
appealed, until:
· the determination of the appeal; or
· a further order is made by the tribunal.
Nature of appeal
Clause 348 provides that an appeal to an industrial tribunal is by way of
re-hearing on the record. The industrial tribunal may hear evidence afresh or
hear additional evidence.
Finality of decision
Clause 349 provides that this clause does not apply to a decision for which
there is a right of appeal under clauses 340 to 344 or another Act.
Subject to clause 340, the decisions of the Court of Appeal (under clause
340), court (under clause 341), full bench (under clause 342), commission
(under clause 343 or 344), or another decision of the court, full bench,
commission, Industrial Magistrates Court or the registrars:
· are final and conclusive;
· cannot be impeached for informality or want of form; and
· cannot be appealed against, reviewed, quashed or invalidated in any
court.
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The Court of Appeal, court, full bench, commission, Industrial Magistrate
Court or the registrar's jurisdiction is exclusive of any court's jurisdiction
and an injunction or prerogative order cannot be issued, granted or made in
relation to a proceeding in the court within its jurisdiction.
The clause defines "industrial tribunal" for this part.
CHAPTER 10--ENFORCEMENT
Division 1--Appointment
Appointment of inspectors
Clause 350 provides that:
· the Governor in Council may appointment a person as the chief
inspector; and
· the chief executive may appoint a person as an inspector.
The person must have the necessary expertise to be an inspector and must
be :
· a public service officer or employee; or
· a training consultant under the Vocational Education, Training and
Employment Act 1991; or
· any other person prescribed under a regulation.
An inspector is employed under the Public Service Act 1996 and is also
an inspector for the:
· Pastoral Workers' Accommodation Act 1980; and
· Trading Hours (Allowable Hours) Act 1990; and
· Workers' Accommodation Act 1952.
Functions
Clause 351 specifies an inspector's functions and provides specific
circumstances an inspector must consider.
Powers
Clause 352 provides that an inspector has the power to do all things
necessary or convenient to be done in the performance of an inspector's
functions. An inspector must produce his or her identity card for inspection
at the time of the inspection or at the first reasonable opportunity.
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Division 2--General powers
Entry to places
Clause 353 defines "domestic premises" and "workplace" for this part, and
specifies when and where an inspector may enter without the owner's
consent.
General powers after entering places
Clause 354 preserves section 382 of the Workplace Relations Act 1997, and
provides the specific powers of an inspector who enters a place under the
provisions of this clause for the purposes of monitoring or enforcing
compliance with this Bill. There is a maximum of 40 penalty units for
breach of this provision.
Power to require documents to be produced
Clause 355 preserves section 383 of the Workplace Relations Act 1997,
which gives an inspector the power to require an employer to produce for
inspection, at a reasonable time and place nominated by the inspector, any
relevant documents relating to the employees of the employer, including
time and wages records. The inspector may request a certified copy of the
document at that time. The employer must comply with these requests
unless he or she has a reasonable excuse. There is a maximum of 40 penalty
units for breach of this provision.
Power to require information
Clause 356 preserves section 384 of the Workplace Relations Act 1997, and
provides the matters about which an inspector is allowed to question an
employer or other person. It specifies that an inspector must warn the
employer or other person that it is an offence to fail to answer such
questions without a reasonable excuse, with a maximum of 40 penalty
points for breach of this provision. This clause enables an inspector to
question an employee out of anyone else's hearing.
Power to require name and address
Clause 357 preserves section 385 of the Workplace Relations Act 1997 and
gives an inspector the power to obtain a person's name and address for the
purposes of the Bill. The penalty for breach of this provision is a maximum
of 40 penalty units.
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Division 3--Powers to claim and deal with unpaid amounts
Paying employee's wages etc. to inspector
Clause 358 provides a definition of "employee" for this division. It
specifies that, on an inspector's written demand, payment of an employee's
unpaid wages, tool allowance and superannuation contributions be paid to
the inspector.
An Industrial Magistrates Court on deciding a matter may order the
employer to pay, in addition to penalties, the amount payable to the
employee. The penalty for breach of this provision is a maximum of 40
penalty units.
Inspector's obligation for amounts paid on demand
Clause 359 preserves section 387 of the Workplace Relations Act 1997 and
provides procedures for inspectors when receiving amounts mentioned in
section 358 of this Bill. It provides definitions of "employee" and
"superannuation contribution" for this clause.
Division 4--General
Obstructing inspectors
Clause 360 preserves section 388 of the Workplace Relations Act 1997 and
prohibits a person from obstructing an inspector in the exercise of a power
unless the person has a reasonable excuse. The term "obstruct" is defined in
the dictionary in schedule 5. There is a maximum penalty of 40 penalty
units for a breach of this provision.
Impersonating inspectors
Clause 361 preserves section 389 of the Workplace Relations Act 1997 and
makes it an offence for a person to pretend to be an inspector, with a
maximum penalty of 40 penalty units.
Validity of inspector's conduct despite administrative contravention
Clause 362 preserves section 390 of the Workplace Relations Act 1997 and
makes an inspector liable to disciplinary action if an inspector fails to
comply with schedule 2, part 3, section 9 (Limitation on powers) or section
352(2) or (3) (Powers).
However, the failure to comply with these provisions does not affect the
lawfulness or effect of an act done or omission made by the inspector for
this Bill.
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CHAPTER 11--RECORDS AND WAGES
PART 1--EMPLOYERS RECORDS
Division 1--Definitions
Definitions for pt 1
Clause 363 preserves the provisions of section 391 of the Workplace
Relations Act 1997 and defines "authorised industrial officer", "record" and
"time and wages record" in this part.
Division 2--Authorised industrial officers
Authorising industrial officers
Clause 364 provides that the registrar may issue an officer or employee of
an organisation with an authorisation. A person who holds an authorisation
may exercise the powers of an authorised industrial officer under this part.
The clause sets out certain conditions for the issuing of an
authorisation.
When an authorisation stops being in force the organisation who
applied for it must take certain prescribed steps to notify the registrar
and surrender the authorisation. A maximum penalty of 16 penalty
units applies to a breach of this provision.
Revocation and suspending industrial officer's authorisation
Clause 365 preserves the provisions of section 393 of the Workplace
Relations Act 1997 by providing the reasons and the method of revoking or
suspending an industrial officer's authorisation.
Division 3--Employers to keep certain records
Time and wages record--industrial instrument employees
Clause 366 preserves section 394 of the Workplace Relations Act 1997 and
provides that the employer must keep a time and wages record containing
certain prescribed particulars mentioned, for each industrial instrument
employee.
The record must be kept at a workplace of the employer in Queensland. A
failure to comply with these record-keeping requirements brings a
maximum penalty of 40 penalty units.
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The employer must keep the records for 6 years. The maximum
penalty for failing to do so is 40 penalty units.
On an employee's request the employer must give the employee a
certificate stating the total hours recorded for the purposes of clause
47 (Continuity of service--
additional considerations for casual employees) for the employee
calculated to 30 June. The maximum penalty for failing to comply is 40
penalty units.
A definition of "industrial instrument employee" is provided for this
clause.
Time and wages record--non-industrial instrument employees
Clause 367 preserves the provisions of clause 395 of the Workplace
Relations Act 1997 and provides that the employer must keep a time and
wages record containing certain prescribed particulars, for each
non-industrial employee. This record must be kept at a workplace of the
employer in Queensland.
A failure to comply with these record-keeping requirements brings a
maximum penalty of 40 penalty units.
The employer must keep the records for 6 years. The maximum
penalty for failing to do so is 40 penalty units.
On an employee's request the employer must give the employee a
certificate stating the total hours recorded for the purposes of clause
47 (Continuity of service--additional considerations for casual
employees) for the employee calculated to 30 June. The maximum
penalty for failing to comply is 40 penalty units.
A definition of "non-industrial instrument employee" is provided for
this clause.
Employee register
Clause 368 preserves the provisions of section 396 of the Workplace
Relations Act 1997 and requires an employer to keep a register that
complies with certain prescribed particulars. The maximum penalty for
failing to comply is 40 penalty units.
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If the employer has more than 100 employees the employer must keep
an alphabetical index of the employees' names. The maximum penalty
for failing to comply is 40 penalty units.
The employer must within 14 days after a change in the employee's
calling enter in the register particulars of the change and the date
when the change happened.
The maximum penalty for failing to comply is 40 penalty units.
An employee must provide to the employer:
· the employee's current residential address, whenever asked; and
· the employee's new residential address if it changes.
The maximum penalty for failing to comply is 40 penalty units.
Records to be kept in English
Clause 369 continues the provisions of section 397 of the Workplace
Relations Act 1997 and provides that a record or index under this part must
be kept in the English language.
Notation of wages details
Clause 370 preserves section 398 of the Workplace Relations Act 1997 and
requires the employer to give an employee, at the time of paying wages, a
written statement specifying how the payment is made up.
The clause provides the information that must be included on the statement.
The maximum penalty is 40 penalty units.
Division 4--Power to inspect certain records
Inspection of time and wages record--inspector
Clause 371 preserves section 399 of the Workplace Relations Act 1997 and
provides that an inspector may inspect an employer's time and wages
record at a workplace during the employer's business hours.
The employer must allow the inspector to inspect the record. If an
employer fails to comply a maximum penalty of 40 penalty units is
provided.
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An inspector may serve a notice on the employer to produce the time
and wages records at a specified workplace or reasonably convenient
place nominated at a specified time, if in the first instance such records
were not produced, an inspection was obstructed, or an inspector
wants to inspect the record of a former employer.
If the employer fails to produce the records in response to the notice
the employer is taken to have failed to keep the record, unless the
employer has a reasonable excuse.
Right of entry--authorised industrial officer
Clause 372 provides that an authorised industrial officer (the officer) may
enter a workplace at which a person carries on a calling that relates to the
eligibility rules of the officer's organisation. The right of entry must be
exercised during the employer's business hours.
The entry is for the sole purpose of exercising a power under clause 373.
The officer must take certain steps on entering the workplace. An
employer must not refuse an authorised industrial officer entry to the
workplace if the officer complies with the prescribed actions required
upon entry. If the employer fails to comply the maximum penalty is 27
penalty units.
If the officer does not take the prescribed steps, the officer may be
treated as a trespasser. However, this does not apply if the employer
or their representative, having charge of the workplace, is not present
at the time the officer enters the workplace.
A person must not obstruct an officer exercising a power under this
clause. The maximum penalty is 27 penalty units.
The officer must not wilfully obstruct the employer, or an employee during
the employee's working time, or contravene a requirement of this clause.
The maximum penalty is 27 penalty units.
A person must not act as an authorised industrial officer under this clause
unless the person holds a current authorisation.
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Right to inspect and request information--authorised industrial
officer
Clause 373 applies to an authorised industrial officer (an officer) who has
entered a workplace under clause 372.
An officer may only inspect records of and speak to certain prescribed
persons, once they have entered the workplace. The officer may only inspect
time and wages records of certain prescribed employees.
The employer must allow the officer to inspect the records for an
employee unless the employee has made a written request to the
employer that the record not be available for inspection by an officer.
The maximum penalty is 27 penalty units.
The employer must not allow the officer to inspect a record where a
such a written request has been made. The maximum penalty is 27
penalty units.
A person must not by threat or intimidation persuade or attempt to
persuade an employee or prospective employee to make or refuse to
make such a written request to the employer. The maximum penalty is
27 penalty units.
A person must not obstruct an officer exercising a power under this
clause. The maximum penalty is 27 penalty units.
The officer must not wilfully obstruct the employer, or an employee
during the employee's working time, or contravene a requirement of
this clause. The maximum penalty is 27 penalty units.
A person must not act as an authorised industrial officer under this
clause unless the person holds a current authorisation. The maximum
penalty is 27 penalty units.
The clause defines "member employee" and "time and wages record"
for this clause.
Inspection of employee register and index--registrar
Clause 374 preserves section 402 of the Workplace Relations Act 1997 and
provides that the registrar may inspect the employer's employee register and
index at the employer's workplace and during the employer's business
hours. The employer must allow the inspection. The maximum penalty is
40 penalty units.
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The registrar may direct the employer to give the register and index to a
stated person, at a stated reasonable time and place in certain prescribed
circumstances. The employer must comply with this direction. The
maximum penalty is 40 penalty units.
Inspection of time and wages book--employees
Clause 375 preserves section 403 of the Workplace Relations Act 1997 and
enables an employee to inspect or, at the employer's discretion, be supplied
in writing with particulars of the time and wages record of the employee at
intervals of no less than 12 months.
PART 2--WAGES AND OCCUPATIONAL SUPERANNUATION
Division 1--Interpretation
Definitions for pt 2
Clause 376 preserves section 404 of the Workplace Relations Act 1997 and
defines certain words and phrases to be applied under this part.
References to service
Clause 377 preserves section 405 of the Workplace Relations Act 1997 and
establishes that in this part a reference to service on a person includes
reference to service on a person's agent.
Division 2--Protection for wages
Wages are first charge on amounts payable to employer
Clause 378 preserves section 406 of the Workplace Relations Act 1997 and
provides that wages due to employees are a first charge on moneys due to
the employer by a prime contractor. The prime contractor is free to pay the
employer all moneys due until the service of a notice of attachment, under
clause 381, on the prime contract.
Assignment of amount payable ineffectual against claims for wages
Clause 379 preserves section 407 of the Workplace Relations Act 1997 and
provides that a claim for wages due to an employee is to take precedence
over any assignment given by an employer against moneys due to that
employer from a prime contractor.
This does not apply if the assignment by the employer is to employees of
the employer for wages for performing the work.
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Amounts paid or payable to employer to be applied in payment of wages
Clause 380 preserves section 408 of the Workplace Relations Act 1997 and
provides that money due to or received by an employer from a prime
contractor cannot be attached or charged other than by the employees until
the employees of that employer have been fully paid.
The employer must apply the amounts received from the prime
contractor in payment of wages payable, or to become payable, to
employees who performed the work for which the amounts are
received.
The employer must keep an accurate written account of the amounts
received from the prime contractor and of the ways the amounts have
been disbursed. This record must be made available for inspection
and copying by an employee. A maximum penalty of 40 penalty units
is provided for each offence in this clause.
Attachment notices
Clause 381 preserves section 409 of the Workplace Relations Act 1997 and
allows the employee to serve an attachment notice on the prime contractor if
wages remain unpaid by the employer 24 hours after they are payable and
have been demanded.
Effect of attachment notice
Clause 382 preserves section 410 of the Workplace Relations Act 1997 and
provides the requirements of the prime contractor and clerk of the
Magistrates Court, following the serving of an attachment notice on the
prime contractor.
A prime contractor is personally liable for the amounts payable
subject to the attachment notice, if they fail to keep or pay the money
as required by this clause.
Orders for payment by prime contractor or clerk of the court
Clause 383 preserves section 411 of the Workplace Relations Act 1997 and
establishes that a magistrate may issue an order for payment of an amount
provided for in a notice of attachment. Moneys retained on the notice of
attachment are to be paid out 21 days after a copy of the order is served
unless an appeal is lodged. If an appeal is lodged the moneys are to be
retained until either the determination or withdrawal of the appeal.
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Employees to be paid according to when attachment notices are served
Clause 384 preserves section 412 of the Workplace Relations Act 1997 and
provides that, subject to clauses 381 to 383, amounts attached in the hands
of a prime contractor or paid to the clerk of the Magistrates Court are to be
paid in priority according to the order in which the relevant attachment
notices are served, subject to specified conditions.
Employee may sue prime contractor
Clause 385 preserves section 413 of the Workplace Relations Act 1997 and
provides that an employee, in whose favour an order concerning a notice of
attachment was issued and has not been paid, may sue the prime contractor
on whom the order was issued for the amount indicated in the order.
The clause establishes the conditions under which the employee can sue the
prime contractor, and the prime contractor's right to set off specified
amounts.
Cessation of attachment not to prejudice prime contractor
Clause 386 preserves section 414 of the Workplace Relations Act 1997 and
provides that a prime contractor is not to be prejudiced in relation to a
payment made in satisfaction of an order under clause 383, if that order
stops operating either because of satisfaction of the employee's claim or
because the order is set aside.
Discharge by employee for payment received
Clause 387 preserves section 415 of the Workplace Relations Act 1997 and
provides that, if asked, the employee, when receiving an amount for a claim
for wages to which an order under clause 383 relates, must sign a discharge
for the amount to the person making the payment.
Remedy of subcontractor's employees
Clause 388 preserves section 416 of the Workplace Relations Act 1997 and
provides that an employee of a subcontractor to the employer has the same
rights as employees of the employer have towards the prime contractor with
regard to notices of attachment.
Prime contractor's right to reimbursement
Clause 389 preserves section 417 of the Workplace Relations Act 1997 and
provides for the right of a prime contractor who has paid wages to an
employee, as a result of a notice of attachment, to claim for reimbursement
from the assets of an employer in the event of the employer's winding up or
insolvency.
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Magistrate may hear claim for wages ex parte
Clause 390 preserves section 418 of the Workplace Relations Act 1997 and
provides that a magistrate may hear and decide claims for wages in the
absence of the person to whom the originating process is directed, provided
there is proof of service of the process on that person.
Division 3--Paying and recovering wages
Wages etc. to be paid without deduction
Clause 391 establishes that an employee (whether paid at a rate fixed by an
industrial instrument or agreement or paid at a rate agreed between the
employer and employee) is to be paid the full amount without unauthorised
deduction. Deductions may be authorised by the relevant industrial
instrument (if applicable), an order made under clause 137 or this division,
or with the employee's consent in writing.
An apprentice or trainee must be paid the fixed rate, without unauthorised
deduction, until the training agreement has been cancelled or the State
Training Council has allowed the employer to stand down the apprentice or
trainee.
Paying apprentices or trainees for course time
Clause 392 provides that time spent in training, up to but not exceeding the
nominal time specified in the approved course of instruction or qualification,
is to be time worked for the employer and ordinary working hours when
calculating the apprentice's or trainee's wages and employment conditions.
Similarly, course time should be taken into account when calculating an
employee's entitlements including annual leave, sick leave and rostered days
off. An example is provided in relation to the calculation of wages.
All time spent in training by an apprentice or trainee, despite the way the
course is delivered, is time worked for the employer as ordinary working
hours when calculating the apprentice's or trainee's wages and employment
condition.
The clause specifically excludes certain apprentices or trainees from
the operation of this clause.
A definition of the term "approved course of instruction or
qualification" is provided for use in this clause.
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Paying wages
Clause 393 preserves section 420 of the Workplace Relations Act 1997 and
provides the methods and associated conditions for payment of wages to an
employee. The clause also voids any contract or authority that provides for
payment of wages other than in accordance with this clause.
Contract not to stipulate mode of spending wages
Clause 394 preserves section 421 of the Workplace Relations Act 1997 and
provides that, subject to this division, an employer is not to impose as a
condition of employment the place where, the way in which or the person
with whom the employee is to spend part or all of their wages.
A maximum penalty of 40 penalty units is provided for a contravention of
this clause.
An employer is prohibited from dismissing an employee for spending or
not spending their wages at a place, in a way or with a person.
Payment of unpaid wages if employee's whereabouts unknown
Clause 395 preserves section 422 of the Workplace Relations Act 1997 and
establishes that an employer is required to pay to the clerk of the nearest
Magistrate's Court unpaid wages that are owed to an employee who has
terminated employment and who cannot be located.
A maximum penalty of 40 penalty units is provided for failure of the
employer to take the action prescribed.
The clause specifies what the clerk of the Magistrates Court must do with
unpaid wages paid by an employer.
Overpaid wages
Clause 396 preserves section 425 of the Workplace Relations Act 1997 and
provides that an employer can recover amounts overpaid to an employee on
account of the employee's absence from work. The ability of the employer
to recover these amounts is restricted as to the time periods in which
recovery can be made and the amounts that can be recovered.
Deduction of wages in lieu of notice of termination
Clause 397 preserves section 425 of the Workplace Relations Act 1997 and
provides that an employer may deduct from wages owing to an employee
an amount stated in an industrial instrument to be forfeited if notice of
termination is not given, if:
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· the relevant industrial instrument requires the employee to give
notice of termination; and
· the employee fails to give the notice required.
Minor may recover unpaid wages
Clause 398 preserves section 427 of the Workplace Relations Act 1997 and
provides that minors may instigate proceedings under this Bill as if they
were 18 years of age.
Recovery of unpaid wages etc.
Clause 399 establishes that an application may be made to a magistrate for
an order for payment of:
· wages payable to an employee, but unpaid;
· unpaid tool allowance, due to an apprentice;
· remuneration lost by an apprentice or trainee because the
employer:
· purportedly cancelled or suspended the training agreement, in
contravention of clause 391 (2); or
· failed to provide work for the apprentice or trainee without the
approval of the State Training Council as provided in section 91 of
the Vocational Education, Employment and Training Act 1991.
An application cannot be made under this clause if an application for the
same matter has been made to the commission under clause 278 (Power to
recover unpaid wages and superannuation contribution etc.).
Enforcement of magistrate's order
Clause 400 provides that an order of a magistrate for payment of wages,
unpaid tool allowance, occupational superannuation or costs in relation to
proceedings is enforceable under the Justices Act 1886.
In addition to the order being enforceable under the Justices Act 1886,
the order may be filed in the registry of the Magistrates Court, and on
being filed it is taken to be an order properly made and which may be
enforced as an order made by a Magistrates Court.
Division 4--Wages in rural and mining industries
Wages recoverable against mortgagee if mortgagor defaults
Clause 401 preserves section 428 of the Workplace Relations Act 1997 and
provides for the recovery of wages, for employees who have performed
specified work in rural industries, from a mortgagee if the employer
defaults on a mortgage.
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Distress warrant levied on property of mortgagor or mortgagee
Clause 402 preserves section 429 of the Workplace Relations Act 1997 and
provides for a warrant of distress in relation to the enforcement of wages in
accordance with clause 401.
A definition of the term "land" is provided for use in this clause.
Application of ss 401 and 402 to mines
Clause 403 preserves section 430 of the Workplace Relations Act 1997 and
provides for the recovery, in certain circumstances, of the wages of
employees in the mining industry from a mortgagee if the employer
defaults on a mortgage or bill of sale.
A definition of the term "wages" is provided for use in this clause.
Priority in payment of wages earned in mine
Clause 404 preserves section 431 of the Workplace Relations Act 1997 and
provides that wages due (up to 4 weeks) to an employee in a mine are a first
charge on the claim or land in which the mine is situated. If a corporation
operating a mine is wound up and wages are due to employees, the wages
(of not more than four weeks) must be paid in priority to all other debts of
the corporation.
A definition of the term "wages" is provided for use in this clause.
Division 5--Occupational superannuation
Agreement about superannuation fund
Clause 405 preserves section 432 of the Workplace Relations Act 1997 and
provides that, even though an industrial instrument requires an employer to
pay contributions to a specified superannuation fund, the employer and
employee may agree in writing that the required contributions be paid to a
complying fund.
It is an offence to coerce a person to make an agreement. A maximum
penalty of 40 penalty units is provided.
Contributing occupational superannuation
Clause 406 preserves section 433 of the Workplace Relations Act 1997 and
provides that it is an offence for an employer to fail to make superannuation
contributions on behalf of an eligible employee into an approved
superannuation fund, at the level required by the relevant industrial
instrument.
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A maximum penalty of 40 penalty units is provided for a failure.
An employer does not commit an offence if the employer contributes to
a complying fund, but not the approved fund, at the level required by
the relevant industrial instrument, unless the employer knowingly
contravenes the instrument.
Where the commission has made an order specifying the complying
superannuation fund to which contributions should be made, an
employer who fails to contribute in accordance with the order is taken
to fail to make the contribution under the relevant industrial
instrument, whether or not the order was directed to that employer.
A court that finds a defendant guilty of an offence may make an order that a
magistrate is authorised to make under clause 408 on application under that
clause.
Power to order contribution to particular fund
Clause 407 preserves section 434 of the Workplace Relations Act 1997 and
provides that the commission may determine an order according to which
complying superannuation fund an employer should have been, or should
be contributing to comply with the relevant industrial instrument. This
power may be exercised where it has been alleged that an employer is
contributing at the required level but not to an approved superannuation
fund.
The commission may recognise all or any of the contributions made to
a complying fund up to the date of a determination as having met
requirements under a relevant industrial instrument.
Recovery of unpaid superannuation contribution
Clause 408 provides that an application may be made by a specified person
to a magistrate for an order for payment of unpaid superannuation
contributions.
On hearing the application, the magistrate must order the employer to
pay the employee:
· the amounts the magistrate finds payable and unpaid within the 6
years before the date of the application; and
· the amount of return that the amount would have earned had it
been paid
and may award costs to either party.
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An application cannot be made under this clause if an application for
the same matter has been made to the commission under clause 278
(Power to recover unpaid wages and superannuation contributions
etc.).
CHAPTER 12--INDUSTRIAL ORGANISATIONS
PART 1--PRELIMINARY
Definitions for ch 12
Clause 409 defines the terms used in chapter 12.
Meaning of "corporation" for ch 12
Clause 410 defines the term "corporation" for its use in this chapter. It
includes bodies incorporated under other prescribed legislation but does not
include a body incorporated under this Bill, a federal organisation or a body
incorporated by its registration as an industrial organisation in another State.
Meaning of "counterpart federal body" for ch 12
Clause 411 defines the term "counterpart federal body" for its use in this
chapter.
Meaning of "office" for ch 12
Clause 412 defines the term "office" for its use in this chapter.
PART 2--REGISTRATION
Division 1--registration applications
Application is to commission
Clause 413 provides that applications for registration of organisations are to
be made to the commission.
Who may apply
Clause 414 provides that an association may apply for registration as either
an employee or employer organisation and that a corporation may apply for
registration as an employer organisation only.
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General requirements for application
Clause 415 stipulates what must accompany an application for registration.
This consists of the proposed registered address for the organisation, 2
copies of the proposed rules, a copy of the register of its officers, a list of
any trustees and the application fee. The application must be signed by the
applicant's president and secretary.
The applicant is required to publish notice of the application in a way
prescribed by regulation.
Additional requirements for employee organisation application
Clause 416 specifies the additional documents that are required to
accompany an application for registration as an employee organisation.
Additional requirements for employer organisation applications
Clause 417 specifies the additional documents that are required to
accompany an application for registration as an employer organisation.
Definitions for the terms "member" and "rules" are provided for use in this
part.
Division 2--Hearing of registration applications
Right to object
Clause 418 provides that a person with sufficient interest may object to the
commission about the registration of an organisation. The commission
must hear the objection in the way prescribed by regulation.
Registration criteria for all applications
Clause 419 provides the criteria on which the commission must be satisfied
before it can grant an application for registration. For example:
· the applicant exists to further or protect its members' interests;
· the association will meet the obligations imposed on organisations by
this chapter and the chapter on freedom of association;
· the association's rules comply with parts 3 and 4;
· the applicant's name will not cause confusion;
· its registration will be consistent with the objectives of this Bill.
Additional criteria for registration as employee organisation
Clause 420 stipulates further criteria on which the commission must be
satisfied before it can register an employee organisation. For example:
· the applicant is not influenced by an employer or employer organisation;
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· the applicant has at least 20 members;
· there is no organisation to which the applicant's members might belong
or could conveniently belong, or the applicant has given an undertaking
in respect to demarcation disputes;
· the members who are not employees are officers or independent
contractors performing work that would normally be performed by
employees.
Additional criteria for registration as employer organisation
Clause 421 stipulates further criteria on which the commission must be
satisfied before it can register an employer organisation. For example:
· the members of the applicant must consist of employers and can include
its officers, persons who were employers at the time they became a
member and persons carrying on a business;
· there is no organisation to which the applicant's members might belong
or there is no organisation to which the members could conveniently
belong;
· members have in total employed an average of at least 20 members in
the 6 months before the application unless special circumstances exist.
Division 3--Grant of application
Grant of application
Clause 422 provides that if the commission grants the registration
application, the applicant immediately becomes an organisation and the rules
for which the application was granted take effect as the rules of the
organisation.
The registrar is required to enter the organisation in the register of
organisations, issue a certificate of registration and register its rules.
Incorporation on registration if not already incorporated
Clause 423 grants incorporation to an association on its registration.
Division 4--Registered name and office
Registered name of organisation that is not a corporation
Clause 424 provides that the name of an organisation that is not a
corporation must include the words industrial organisation or union of
employees or employers, as the case may be, and include a reference to the
locality in which most of the members live or carry on business.
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Registered office
Clause 425 provides that an organisation must have a registered office and
must notify the registrar of any change of the registered office.
A maximum penalty of 40 penalty units is provided if the organisation fails
to comply with the clause.
Division 5--Miscellaneous
Registrar's functions for register and rules
Clause 426 provides that the registrar must keep a register of organisations
and a copy of the rules of each organisation.
A person is entitled to inspect the rules held by the registrar, on payment of
the fee prescribed in the rules of court.
Change of callings
Clause 427 provides that an organisation may apply to the commission to
amend its list of callings.
A definition of the term "list of callings" is provided for use in this clause.
PART 3--General CONTENTs OF RULES
Division 1--Requirement to have rules
Organisation must have complying rules
Clause 428 provides that an organisation must have rules to cover matters
set out in this part and part 4. The organisation must give a copy of its rules
to any person who asks for it, and who pays the fee prescribed by a
regulation.
Division 2--General requirements for contents
Requirements for all organisations
Clause 429 provides compulsory requirements for the rules of all
organisations.
A definition of the term "committee" is provided for use in the clause.
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Additional requirements for organisation that is not a corporation
Clause 430 provides additional compulsory requirements for rules of
organisations that are not corporations. They do not apply to organisations
that are corporations, as the legislation under which they are incorporated
deals with these issues.
Rules must give conditions for loans, grants and donations
Clause 431 requires that the rules of an organisation must include specified
conditions regarding making of a loan, grant or donation of more than
$1000. It limits the maximum payment to a member to relieve severe
financial hardship to $3000.
Division 3--Permitted contents
Permitted contents--general
Clause 432 allows organisations to have additional rules that make other
provisions that do not contravene this Bill.
Filling casual vacancies
Clause 433 permits the rules of an organisation to provide for the filling of
casual vacancies under the specified circumstances.
A definition of the term "term" is provided for use in this clause.
Mortality benefit fund
Clause 434 permits an organisation's rules to provide for a mortality
benefit. Members can nominate a person to whom the amount is payable
on their death.
A definition of the term "eligible nominee" is provided for use in this
clause.
Division 4--Restriction on contents
General restrictions
Clause 435 requires that an organisation's rules must not:
· contravene this Bill, another law or an industrial instrument;
· prevent members from complying with this Bill, another law or an
industrial instrument or decision or from entering into an agreement
under an industrial instrument or agreement or commission decision;
· impose oppressive, unreasonable or unjust conditions, obligations or
restrictions on its members or applicants for membership.
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An eligibility rule setting reasonable minimum standards for the conduct of
the businesses or callings of its members or membership applicants does
not contravene the provision prohibiting oppressive, unreasonable or unjust
conditions.
Maximum office term for organisation that is not a corporation
Clause 436 provides that the rules of an organisation (which is not a
corporation) may provide for a maximum term of office of 4 years. This
period can be extended by up to 1 year for the purpose of synchronising
elections.
PART 4--ELECTION RULES
Division 1--Preliminary
Part does not apply to corporations
Clause 437 provides that this division does not apply to organisations that
are corporations as the legislation under which they are incorporated deals
with these issues.
Meaning of "direct voting system" for pt 4
Clause 438 provides an explanation of what is meant by the term "direct
voting system" in this part.
A definition is provided for the term "eligible member" for use in this
clause.
Meaning of "collegiate electoral system" for pt 4
Clause 439 provides an explanation of what is meant by the term "collegiate
electoral system" for this part.
Division 2--General requirements
General requirement of transparency
Clause 440 requires an organisation's rules about elections to ensure that the
processes for election are transparent and that no irregularities can occur.
Rules must provide for elections
Clause 441 requires an organisation's rules to provide for the filling of
elected offices by way of an election.
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Direct voting system or collegiate electoral system must be used
Clause 442 requires that an organisation's rules must provide for its officers
to be elected under a direct voting system or a collegiate electoral system.
Division 3--Direct voting systems
Subdivision 1--Preliminary
Application of div 3
Clause 443 provides that this subdivision applies if an organisation's rules
provide for the election of its elected officers by a direct voting system.
Subdivision 2--Requirements for direct voting system
General requirements for direct voting system
Clause 444 requires that an organisation's rules state the matters prescribed
in this clause.
Required contents--ballots
Clause 445 requires that an organisation's rules must state the matters
prescribed in relation to ballots. For example, the rules are required to
permit candidates access to the voters roll and to stipulate the method of
voting to decide the result of the ballot, which is either first-past-the-post or
a preferential system.
Compulsory voting permitted
Clause 446 allows an organisation's rules to provide for compulsory voting
in an election.
Subdivision 3--Alternative types of secret ballot
Approval application
Clause 447 permits an organisation to apply to the registrar to conduct its
election other than by post. The proposed amendments to the organisation's
rules to permit this must be included with the application.
Consideration of application
Clause 448 stipulates the conditions of which the registrar must be satisfied
before the application may be granted, including that the ballot is likely to
have a higher participation rate than a postal vote and that voters will not be
subject to intimidation.
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Grant of approval
Clause 449 provides when the proposed amendments take effect if the
registrar grants the application.
Cancellation of approval
Clause 450 sets out the conditions under which the registrar may cancel the
approval.
Division 4--Collegiate electoral systems
Subdivision 1--Preliminary
Application of div 4
Clause 451 provides that this division applies if an organisation's rules
provide for the election of its elected officers by a collegiate electoral
system.
Subdivision 2--Requirements for collegiate electoral systems
Restriction on persons who may be elected by electoral college
Clause 452 requires that of the people elected by an electoral college, at
least 80% of them must have been elected in the collegiate electoral
system at the stage immediately before the stage for which the electoral
college was formed.
Requirements for second or subsequent stage
Clause 453 requires that the organisation's rules must state specified
matters for an election at the second or subsequent stage of a collegiate
electoral system.
Division 5--Model election rules
Model election rules
Clause 454 provides that model election rules may be made by regulation.
Model election rules may be adopted
Clause 455 permits an organisation to adopt all or part of the election rules
by resolution.
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Adoption without change
Clause 456 permits an organisation's secretary to notify the registrar that the
organisation had resolved to adopted all of the model rules without change.
The registrar must amend the organisation's rules accordingly.
Effect of adoption without change
Clause 457 provides that if an organisation adopts the model rules without
change its election rules are deemed to comply with the Act.
Model rules apply if election rules do not comply with pt 4
Clause 458 provides that if an organisation's election rules do not comply
with this division within 1 year of the commencement of this clause then the
model rules are taken to be the organisation's election rules.
PART 5--VALIDITY AND COMPLIANCE WITH RULES
Powers of court
Clause 459 empowers the court to decide whether an organisation's rules
comply with clause 435 of this Bill or to direct a person obliged to perform
or observe an organisation's rules to perform or observe the rules.
A direction must not be made if it invalidates an election or purported
election, or a step for an election or purported election.
Who may apply
Clause 460 provides that only a member of the organisation or a person
permitted by regulation may make application.
Financial help for application
Clause 461 provides the Minister a discretion to award financial assistance
to a member of the organisation making application under this part.
The Minister may direct the State to give financial help if satisfied of the
specified matters.
Interim orders
Clause 462 empowers the court to make interim orders.
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Hearing application
Clause 463 empowers the court to adjourn an application, to give the
organisation the opportunity to amend its rules or to take all reasonable steps
to resolve the matter.
Effect of declaration
Clause 464 provides that if the court declares that a rule contravenes clause
435 of this Bill then the part of the rule in contravention is taken to be void.
Direction must be complied with
Clause 465 provides that a person who fails to comply with a direction of
the court to comply with a rule of an organisation is guilty of an offence.
A maximum penalty of 40 penalty units is provided.
PART 6--AMENDMENT OF RULES
Division 1--Amendments by commission or registrar
Breach of demarcation dispute undertaking
Clause 466 provides that the commission may amend an organisation's
eligibility rules to remove an overlap with another organisation's eligibility
rules where the organisation has breached a demarcation dispute
undertaking that it has given.
When registrar may amend rules
Clause 467 provides that the registrar may amend an organisation's rules
where it is considered in specified circumstances.
Amendment to cure non-compliance if rule declared void
Clause 468 empowers the commission, in respect of an organisation's
eligibility rules, or the registrar in respect of other rules, to amend an
organisation's rules where the court has declared the rule contravenes clause
435 of this Bill and the organisation has not amended the rule within 3
months of the declaration.
A definition of "appropriate tribunal" is provided for use in this clause.
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How amendment must be made
Clause 469 provides that an amendment made under this division may only
be made by an order, direction or written decision. The registrar is required
to give the organisation a copy of the instrument as soon as possible after it
is made.
Division 2--Amendments by organisation
Subdivision 1--Name or eligibility rule amendments
Application of sdiv 1
Clause 470 provides those changes to the name or eligibility rules that are
not covered by this subdivision.
A definition of the term "amend" is provided for use in this clause.
Requirements for amendment
Clause 471 provides the conditions under which a proposed amendment
may be made.
Approval to change "union" to "organisation" in name
Clause 472 provides allows the registrar to approve a change in an
organisation's name from the term "union" to "organisation" or "industrial
organisation".
Approval for other name amendment
Clause 473 provides the conditions under which the commission may
approve the change of name of an organisation, other than replacing the
word "union" with "organisation".
Approval for eligibility rule amendment
Clause 474 provides the conditions under which the commission may
approve a change to an organisation's eligibility rules. The requirement
include that:
· the amendment has been made under the organisation's rules; and
· there is no other organisation that would effectively represent a person
who becomes eligible for membership under the amendment or to
which the person may conveniently belong.
Conditions are provided under which approval for the amendment may be
refused. These include, but are not limited to:
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· that it contravenes an agreement or undertaking in respect to
demarcation issues;
· that it alters the effect of an order made by the full court concerning
an organisation's right to represent and the amendment raises a
serious risk of a demarcation dispute, which could affect an
employer's business.
A definition of the term "right to represent" is provided for use in this
clause.
When amendment takes effect
Clause 475 provides that the amendment takes effect on the day the
approval is given or the date stated in the approval.
Registrar must record amendment
Clause 476 provides the action the registrar must take on approval of
amendment to the organisation's name or eligibility rules.
Subdivision 2--Other rule amendments
Application of sdiv 2
Clause 477 clarifies that this subdivision does not apply to changes to an
organisation's name or eligibility rules, or if it adopts in full the model
election rules without change.
When amendment may be made
Clause 478 provides that an amendment can be made to the organisation's
rules only if it has been approved by the registrar. The matters that the
registrar must be satisfied of are prescribed.
When amendment takes effect
Clause 479 provides that the registrar must register an amendment as soon
as practicable after it has been approved.
The amendment takes effect from the date it is registered.
PART 7--CONDUCT OF ELECTIONS
Division 1--Preliminary
Part does not apply to corporations
Clause 480 provides that this division does not apply to organisations that
are corporations.
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Division 2--Preparatory steps
Organisation or branch must file prescribed election information
Clause 481 requires an organisation or branch wishing to conduct an
election to file the information prescribed by regulation within the registry.
Registrar must arrange for elections
Clause 482 requires that if the prescribed information is filed with the
registrar, and an election is required under the rules of the organisation or
branch, the registrar must arrange for the electoral commission to conduct
the election.
Division 3--Conduct of election
Electoral commission to conduct elections
Clause 483 requires that elections must only be conducted by the electoral
commission.
Organisation's rules generally to be complied with
Clause 484 requires, subject to clause 485, an election or any step involved
in the election to be conducted in accordance with the rules of the
organisation.
Action or directions by electoral officer
Clause 485 provides that the electoral officer may take action or give
directions to:
· ensure no irregularities occur in the election; or
· remedy any procedural defect that appears to exist in the
organisation's rules.
The election or step in the election is not invalidated because the rules of
the organisation have not been followed due to the action or direction.
Substitute electoral officer
Clause 486 requires the electoral commissioner to appoint a substitute
electoral officer if the electoral officer conducing an election dies, cannot
complete the election or ceases to be qualified to conduct the election.
Death of candidate
Clause 487 requires that, despite anything in an organisation's rules, an
election must be discontinued if one of the candidates dies and there were 2
or more candidates.
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Election result report
Clause 488 requires that the electoral commission must provide the registrar
with a written electoral result report containing details prescribed under a
regulation, within 14 days of the declaration of the result of the election.
Failure to do so does not invalidate the election.
Election costs to be paid by State
Clause 489 provides that the State is responsible for the costs of an election.
Ballot records must be preserved
Clause 490 requires the electoral commission to ensure all ballot records are
kept for 1 year after an election.
Division 4--Offences about conduct of elections
Using organisation's resources for election purposes
Clause 491 requires that an organisation's resources are not used to help
one candidate against another.
A maximum penalty of 80 penalty units is provided.
Obstructing conduct of election
Clause 492 establishes that it is an offence for a person to obstruct another
person conducting an election.
A maximum penalty of 80 penalty units is provided.
Failing to comply with electoral officer's direction
Clause 493 provides that it is an offence for a person, without a reasonable
excuse, not to comply with a direction given by the electoral officer
conducting an election.
A maximum penalty of 80 penalty units is provided.
Obstructing electoral officer's direction
Clause 494 provides that it is an offence for a person to obstruct another
person from complying with an electoral officer's direction.
A maximum penalty of 80 penalty units is provided.
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Offences about ballots
Clause 495 requires that a person must not take any of the prescribed
actions, without a lawful authority or excuse.
A maximum penalty of 80 penalty units is provided.
Disadvantaging candidates etc.
Clause 496 makes it an offence for a person to cause, inflict or procure a
disadvantage in any way to another person because of, or to induce:
· a candidature or withdrawal of a candidature;
· a vote or omission to vote in an election;
· support for or opposition to a candidate in an election; or
· a promise of a vote, omission to vote, support or opposition for or to a
candidate in an election.
A maximum penalty of 80 penalty units is provided.
Definitions of the terms "cause" and "disadvantage" are provided for use
in this part.
Unauthorised access to ballot paper
Clause 497 makes it an offence for a person to gain access to another
person's ballot paper to see how the person voted.
It is also an offence for a person performing duties for an election to
permit access to a ballot paper to anyone else, other than for a function
involved in the election.
A maximum penalty of 80 penalty units is provided.
PART 8--ELECTION INQUIRIES
Division 1--Preliminary
Part does not apply to corporations
Clause 498 provides that this part does not apply to organisations that are
corporations.
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Division 2--Applications and referrals to commission
Commission may conduct election inquiry
Clause 499 provides that the commission may, on application referred to it
by the registrar, conduct an inquiry into a claimed irregularity in an election.
Who may apply
Clause 500 provides that only a financial member or a person who was a
financial member, within one year before the application is made, of the
organisation that conducted the election may apply for an election inquiry.
Requirements for application
Clause 501 provides that the application must identify the election in which
an irregularity is claimed, and provide details of the irregularity and an
affidavit of the facts that support the application.
The application is to be lodged within 6 months of the election, or a longer
period allowed by the registrar.
Referral to commission
Clause 502 provides that where the registrar is satisfied that reasonable
grounds exist to justify an inquiry, the registrar may refer the application to
the commission.
The registrar can take into account any appropriate information that is
known by the registrar.
Division 3--Investigations and interim orders
Commission may authorise registrar to investigate
Clause 503 provides that the commission may authorise the registrar to
inspect and take possession of ballot records, enter premises where the
records are kept and require a person in possession of the ballot record to
give them to the registrar.
It is an offence under this section for a person who has the ballot records not
to give them to the registrar when required or to obstruct the registrar in
exercising a power under this section.
A maximum penalty of 80 penalty units is provided.
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Interim orders
Clause 504 provides that the commission may make specified interim
orders in respect of the election inquiry.
Person acting under interim order
Clause 505 provides that, while an interim order is in effect, the person
holding office as a result of the order is taken to hold the office despite the
rules of the organisation.
When interim order ends
Clause 506 provides when an interim order ends.
Division 4--Conduct of election inquiries
Commission's functions and powers for inquiry
Clause 507 provides the matters the commission must inquire into and
decide at an election inquiry.
Orders if irregularity found
Clause 508 provides the types of orders the commission may make if it
finds an irregularity has happened or is likely to happen in an election.
Enforcing pt 8 orders
Clause 509 provides that the commission may make an order as an
injunction to enforce an order, or perform its functions or exercise its
powers under this part.
Division 5--Offences about election inquiries
Disadvantaging applicant for inquiry
Clause 510 provides for a maximum penalty of 80 penalty units against
those who cause, inflict or procure a disadvantage to another person because
the other person has applied for an election inquiry.
A definition for the term "disadvantage" is provided for the purposes of this
clause.
Obstructing orders being carried out
Clause 511 requires that a person must not obstruct the carrying out of a
commission order under this part.
A maximum penalty of 80 penalty units is provided.
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Division 6--Miscellaneous
Financial help for application
Clause 512 provides for an applicant for an election inquiry to seek financial
help from the Minister. The clause describes those circumstances under
which the Minister may direct the State to provide financial help. The
registrar is to decide the amount of the financial help.
Costs of fresh elections ordered by inquiry
Clause 513 provides that the State must pay the costs of a fresh election
where the commission so orders a fresh election under this part.
A definition of the term "fresh election" is provided for use in this clause.
PART 9--OFFICERS
Division 1--Preliminary
Definitions for pt 9
Clause 514 provides the definitions to be applied to certain words and
phrases that apply under this part.
Meaning of "convicted person" for pt 9
Clause 515 provides a definition of "convicted person" to be applied under
this part.
Division 2--Disqualifications from candidature or holding office
Subdivision 1--Disqualifications
Persons under 18
Clause 516 provides those positions within an organisation for which a
person under the age of 18 years is ineligible to be a candidate or to be
elected.
Convicted persons--candidature
Clause 517 establishes the circumstances under which a person convicted of
a prescribed offence may be a candidate or be elected to an office in an
organisation.
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Convicted persons--holding office
Clause 518 applies to a person who holds an office in an organisation and is
convicted of a disqualifying offence. This clause describes how such a
person ceases to hold an office and the circumstances under which the court
may extend the time for making such a leave application.
Subdivision 2--Applications for leave to hold office
Prospective candidates
Clause 519 provides that a person who meets the criteria prescribed by the
clause may apply to the court for leave to hold office.
Existing office holders
Clause 520 provides that a person convicted of a disqualifying offence may
apply to the court for leave to hold the office or another stated office. The
court may only grant such leave if the application is made within 28 days
after the conviction and the person has not already made a leave application
for the conviction.
Consideration of leave applications
Clause 521 provides what the court must consider in deciding a leave
application.
Disqualification period may be given if leave refused
Clause 522 provides a power for the court to state a disqualification period
for the applicant to hold office in any organisation, if it decides to refuse a
leave application. The factors determining the maximum length of the
disqualification period are specified.
Leave or fixing of disqualification period does not affect div 2
Clause 523 provides that the granting of a leave application for a conviction
or the fixing of a disqualification period does not affect the operation of this
division for another conviction.
Subdivision 3--Miscellaneous
Declaration about eligibility or ceasing to hold office
Clause 524 provides for applications from a member of the organisation, or
from the registrar, for a declaration that because of this division a person is
not or was not eligible to be a candidate or to be elected to office in the
organisation, or the person has ceased to hold an office in the organisation.
The court may make orders it considers appropriate, despite anything in the
rules of the organisation, to give effect to the declaration.
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Certificate evidence for div 2
Clause 525 establishes what shall, under this division, be taken as evidence
of a person's conviction, acquittal, release from prison, or dismissal of
charges against a person.
A definition is provided for the term "appropriate officer" for use in this
clause.
Division 3--Officers' financial management duties
Application of div 3
Clause 526 provides that this division applies if an officer of an organisation
performs functions or exercises powers about the organisation's financial
management.
Duty of honesty
Clause 527 provides that an officer must act honestly.
A maximum penalty of 40 penalty units is provided.
Duty of reasonable care and diligence
Clause 528 establishes the degree of care and diligence expected of an
officer.
A maximum penalty of 40 penalty units is provided.
Officers with material personal interests
Clause 529 requires that an officer with a material personal interest must
disclose such, and requires the officer not to be present or vote at any annual
general or management committee meeting at which the matter is
considered.
A maximum penalty of 40 penalty units is provided for each offence in this
clause.
Other duties not affected
Clause 530 provides that this division does not limit certain specified
matters.
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PART 10--MEMBERSHIP
Division 1--Eligibility and admission to membership
Eligibility
Clause 531 establishes the eligibility of a person to become a member of an
organisation.
Obligation to admit
Clause 532 requires that an organisation must admit an eligible person to
membership and provides time limits in which the person must be
admitted.
A definition of the term "admit to membership" is provided for this clause.
Obligation to give union card
Clause 533 provides when an organisation must give a person a union card.
A maximum penalty of 40 penalty units is provided for contravention of
this clause.
The term "union card" is defined for the purposes of this clause.
Members under 18
Clause 534 provides that a person under 18 may become a member of an
organisation, unless the rules provide otherwise. The rights that accrue to
persons under 18 who are members are prescribed.
Division 2--Membership disputes
Court may decide
Clause 535 provides that the court can decide a question or dispute, on
application of a person or an organisation, in relation to specified matters.
Deciding application
Clause 536 provides the discretionary powers available to the court after
having heard the application.
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Division 3--Membership subscriptions
Obligation to give a receipt
Clause 537 provides that a person must be given a written receipt within
one month of their payment to an organisation of a membership
subscription or membership renewal.
A maximum penalty of 40 penalty units is provided.
Division 4--Resignation
Division applies despite rules
Clause 538 provides that this division applies despite the rules of an
organisation.
Resignation
Clause 539 provides the conditions and manner in which a member may
resign from an organisation.
Resignation if membership subscription unpaid for 2 years
Clause 540 provides that a person's membership of an organisation
automatically ends if the person owes a membership subscription and has
owed this subscription for 2 years.
Division 5--Liabilities of member to organisation
Definition of "member's liability" for div 5
Clause 541 provides a definition for the term "member's liability" used in
this division.
Recovering member's liabilities
Clause 542 provides for the recovery of a member's liability to an
organisation.
Limit on liability after resignation
Clause 543 limits the liability of a member whose membership of an
organisation has ended.
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PART 11--REGISTERS
Members and officers registers
Clause 544 requires that an organisation must keep written registers of
certain matters.
A maximum penalty of 40 penalty units is provided for failure to do so.
Requirements for members register
Clause 545 prescribes the information that must be recorded in the
members register.
A maximum penalty of 40 penalty units is provided for each of the offences
prescribed under this clause.
Officers register--required particulars
Clause 546 prescribes the information that must be kept in the officers
register.
A maximum penalty of 40 penalty units is provided for failure to do so.
Annual obligation to file officers register
Clause 547 provides that the organisation must file, annually, a copy of its
officers register.
A maximum penalty of 40 penalty units is provided for failure to do so.
Obligation to file officers register on change of office holder
Clause 548 provides that an organisation must file a copy of its officers
register each time a person becomes or ceases to be an officer of the
organisation.
A maximum penalty of 40 penalty units is provided for failure to do so.
Inspection of registers
Clause 549 provides for the inspection of the registers of an organisation by
the registrar, a member or a person with the written authority of the registrar
or a member or a person with the written authority of a member. A copy
of the register held by the registrar may be inspected by any person upon
payment of the fee prescribed by the rules of court.
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Registrar's direction about registers
Clause 550 provides that the registrar may give certain written directions to
an organisation.
A maximum penalty of 40 penalty units is provided if the organisation fails
to comply with the direction, unless the organisation has a reasonable
excuse.
PART 12--ACCOUNTS AND AUDIT
Division 1--Preliminary
Definitions for pt 12
Clause 551 defines certain terms to be used in this part.
Meaning of "financial year" for pt 12
Clause 552 provides an explanation of the term "financial year".
Part applies to branches with separate financial affairs
Clause 553 provides that, if a branch keeps separate accounting records
from those of the organisation, this part applies to the branch as if it were an
organisation.
Division 2--Accounting obligations
Obligation to keep accounting records
Clause 554 provides the requirements of the organisation for keeping
accounting records.
A maximum penalty of 40 penalty units is provided.
The clause also requires that the accounting records be kept in the manner
prescribed by a regulation.
A maximum penalty of 40 penalty units is provided.
A definition of the term "accounting records" is provided for use in this
clause.
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Obligation to prepare accounts
Clause 555 provides that an organisation must prepare the accounts
prescribed under a regulation for each financial year. The matters that must
be included in the accounts are prescribed.
A maximum penalty of 40 penalty units is provided for each offence under
this clause.
A definition of the term "compulsory levy" is provided for use in this
clause.
Member may apply for prescribed information
Clause 556 provides that a member, or the registrar on a member's behalf,
may apply to an organisation for certain information.
A maximum penalty of 40 penalty units is provided for failure to provide
the information.
Registrar's directions about accounts and accounting records
Clause 557 provides that the registrar may direct an officer of an
organisation to give certain information or accounts to the registrar or to
direct any officer of an organisation with functions or powers in relation to
the accounts or accounting records to do certain things. It is an offence
(maximum penalty 40 penalty units) to fail to comply with a direction,
unless the officer has a reasonable excuse.
Division 3--Audits
Obligation to have auditor
Clause 558 provides that an organisation must appoint a competent person
as an auditor to inspect and audit the organisation's accounting records and
to make an audit report.
A maximum penalty of 40 penalty units is provided for failure to do so.
A definition for the term "competent person" is provided for use in this
clause.
How auditor may be removed
Clause 559 provides the ways in which an auditor may be removed.
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Requirements for audit report
Clause 560 provides that the audit report must state certain specified
matters.
Audit report must not be knowingly false or misleading
Clause 561 provides that it is an offence for an auditor to make a statement
in an audit report that is knowingly false or misleading to the auditor's
knowledge.
A maximum penalty of 40 penalty units is provided.
Auditor must notify registrar of contravention
Clause 562 provides that an auditor must notify the registrar of a
contravention of this part if the auditor is of the opinion that the matter
cannot be adequately dealt with by a comment in the audit report.
A maximum penalty of 40 penalty units is provided for failure to take this
action.
Auditor's powers
Clause 563 establishes the powers of an auditor.
A definition of the term "auditor" is provided for this clause.
Auditors have qualified privilege
Clause 564 provides that an auditor may make defamatory statements
subject to certain conditions and a person may publish in good faith
defamatory matter subject to certain specified conditions.
A definition of the term "auditor" is provided for this clause.
Division 4--Presentation and filing of audit reports
Obligation to present to general or committee meeting
Clause 565 provides that an organisation must present its audit report and
account to an annual general meeting within 5 months of the ending of each
financial year unless the time is extended by the registrar.
A maximum penalty of 40 penalty units is provided.
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Obligation to publish audit report and accounts
Clause 566 provides that an organisation must, at least 28 days before a
presentation meeting, give each member a copy of the audit report and
relevant accounts or publish the report and accounts in a journal or
newsletter provided to members. Provision of the reports and accounts
must be free of charge to the member.
A maximum penalty of 40 penalty units is provided.
Notice of meetings to auditor
Clause 567 provides that an organisation is to give notice to the auditor of:
· any meeting at which the auditor's report will be presented; or
· any meeting at which business is to be conducted about the auditor, in
that capacity.
A maximum penalty of 40 penalty units is provided.
A definition of the term "notice" is provided for use in this clause.
Auditor may attend meetings
Clause 568 provides that an auditor or authorised substitute may attend the
part of an organisation's meeting at which the auditor's report and the
accounts will be presented, or business will be conducted concerning the
auditor, in that capacity.
It is an offence for an officer, employee or member of the organisation to
prevent the auditor or authorised substitute from attending or addressing the
part of the meeting.
A maximum penalty of 40 penalty units is provided.
False or misleading statements about reports
Clause 569 provides that a member of an organisation's management
committee must not make a statement that the member knows is false or
misleading about the organisation's audit report.
A maximum penalty of 40 penalty units is provided.
Report and accounts must be filed
Clause 570 provides that an organisation that has presented its audit report
and accounts must lodge a copy with the registrar within 14 days, unless the
registrar allows a longer period.
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A maximum penalty of 40 penalty units is provided.
A definition of the term "required period" is provided for use in this clause.
Division 5--Registrar's investigations and audits
Registrar's investigations
Clause 571 provides that the registrar must investigate an accounting
deficiency identified in an auditor's report, or another matter which the
registrar considers should be investigated, as revealed by documents filed
by an organisation or if requested by a required number of members.
The registrar may also conduct an investigation if satisfied there are
reasonable grounds or in other circumstances that are provided by a
regulation.
Registrar's directions for investigation
Clause 572 provides the powers of the registrar in conducting an
investigation under clause 571.
It is an offence for a person to fail to comply with a direction of the registrar
under this clause, unless the person has a reasonable excuse. A maximum
penalty of 40 penalty units is provided.
Notice of contravention to organisation
Clause 573 provides the action the registrar may take if at the conclusion of
the registrar's investigation a contravention of this Bill or a rule of the
organisation has been revealed.
Court may order compliance with notice
Clause 574 provides that the court may, on application of the registrar,
make necessary orders to remedy the contravention stated in the registrar's
notice given under clause 573.
Registrar's examinations and audits
Clause 575 provides that the registrar may engage an auditor to examine an
organisation's accounting records in specified circumstances.
Powers of registrar's auditor
Clause 576 provides that the registrar's auditor has the same functions and
powers as an organisation's auditor.
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Costs of examination and audit by registrar's auditor
Clause 577 provides that the costs of an audit by the registrar's auditor are
to be borne by the organisation. The registrar is empowered to recover
costs where they have not been paid on demand.
Division 6--Loans, grants and donations
Obligation to file details of loans, grants and donations
Clause 578 provides that an organisation must prepare and file annually a
statement of certain loans, grants or donations, including the specified
information.
A maximum penalty of 40 penalty units is provided.
Member may inspect statement
Clause 579 provides that a filed statement may be inspected, during office
hours, by a member of the organisation.
PART 13--EXEMPTIONS
Division 1--Exemptions for organisations with counterpart federal
bodies
Subdivision 1--Exemption from holding election
Exemption if federal election held
Clause 580 provides how this section shall be applied, how an organisation
may apply to the registrar for an exemption from holding an election, the
matters the registrar must be satisfied of to grant an exemption and the
effect of an exemption being granted.
A definition of "corresponding office" is provided for use in this clause.
Obligation to notify change in federal election result
Clause 581 provides what is to happen if an organisation is given an
exemption under clause 580 and an order under the Commonwealth Act has
changed the result of the federal ballot.
A maximum penalty of 40 penalty units is provided for failure to comply
with this clause.
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Subdivision 2--Exemption from keeping members or officers register
Exemption
Clause 582 provides that an organisation may apply to the registrar for an
exemption from keeping a members or officers register. The registrar may
grant an exemption only if satisfied of the specified matters.
Effect of exemption
Clause 583 provides that, while an exemption is in force, the counterpart
federal body's register of members or officers can be taken as the register
required under this Bill.
Obligation to file copy of federal officers register
Clause 584 provides that an organisation with an exemption from keeping a
separate members register must file a copy of an officers register filed under
the Commonwealth Act with the registrar.
Failure to do so is an offence with a maximum penalty of 40 penalty units.
A definition of the term "officer's records" is provided for use in this
clause.
Obligation to give notice of change or contravention
Clause 585 establishes that if any of the specified events happen, the
organisation must immediately give notice of the happening to the registrar.
Failure to notify the registrar is an offence with a maximum penalty of 40
penalty units.
Subdivision 3--Exemption from accounting or audit obligation
Who may apply
Clause 586 provides that an organisation that meets the criteria of this clause
may apply to the registrar for an exemption from the accounting or audit
requirements.
Grant of exemption
Clause 587 provides the conditions that must be met before the registrar
will grant an exemption.
The clause also prescribes the effect of the exemption.
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A definition of the term "relevant Commonwealth provision" is provided
for use in this clause.
Obligation to file copies of federal audit documents
Clause 588 provides that an organisation exempted from presenting or
filing audit reports or accounts must file a copy of the audit report and
relevant accounts for its counterpart federal body, subject to certain
conditions.
A maximum penalty of 40 penalty units is provided for failure to do so.
Obligation to give notice of change or contravention
Clause 589 provides that an organisation with exemption from accounting
or audit requirements must notify certain specified changes in circumstances
to the registrar. A failure to do so is an offence with a maximum penalty of
40 penalty points. The organisation is taken to become aware of the
happening if an officer of the organisation becomes aware of it.
Division 2--Other exemptions from accounting or audit obligations for
employer organisations that are corporations
Who may apply
Clause 590 provides that an organisation that is a corporation may apply to
the registrar for an exemption from the whole or part of the accounting or
audit requirements.
Grant of exemption
Clause 591 provides the criteria on which the registrar must be satisfied
before granting an exemption.
The clause also prescribes the effect of the exemption.
Obligation to file copies of reports under other Act or law
Clause 592 provides that an organisation that has been granted an
exemption from the audit requirements must file, within 14 days, a copy of
the audit documents so lodged under another Act or law.
Failure to do so is an offence, with a maximum penalty of 40 penalty units.
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Obligation to notify registrar of contravention of other law
Clause 593 provides that an organisation that has been granted an
exemption must notify the registrar of any contravention of another Act for
which the exemption has been granted.
A failure to do so is an offence, with a maximum penalty of 40 penalty
points.
Division 3--Exemptions from requirement that electoral commission
conduct election
Subdivision 1--Grant of exemption
Who may apply
Clause 594 provides that an organisation or branch may apply to the
registrar for an exemption from the requirement that the electoral
commission conduct elections.
Requirements for application
Clause 595 provides conditions that must be met before an exemption can
be granted.
Publication of application
Clause 596 provides that the registrar must publish a notice stating details of
the application. The notice must be published in a way prescribed in a
regulation.
Hearing application
Clause 597 establishes that the registrar may grant an exemption only if
satisfied that each of the specified criteria has been met.
Subdivision 2--Obligations if exemption granted
Application of sdiv2
Clause 598 provides that this subdivision applies to an organisation or
branch for each election to which an exemption under subdivision 1 is
granted.
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Obligation to appoint returning officer
Clause 599 stipulates what an organisation or branch must do before calling
for nominations for an election, including obtaining the registrar's written
approval of the returning officer's appointment.
Failure to so comply is an offence under this Bill, with a maximum penalty
of 40 penalty units.
An employee, member or officer of the organisation or branch must not be
appointed as the returning officer.
Election result report
Clause 600 requires that the returning officer for the election must give the
registrar, within 14 days of the declaration of the result of the election, a
result report for the election stating the particulars required under a
regulation.
Failure to do so is an offence under this Bill. The maximum penalty is 40
penalty units.
Ballot records must be preserved
Clause 601 requires that specified persons must take reasonable steps to
ensure that all ballot records given to them for the election are kept for 1
year after the declaration of the election result.
Failure to do so is an offence with a maximum penalty of 40 penalty units.
Division 4--Cancellation of exemptions
Cancellation grounds
Clause 602 provides that an exemption may only be cancelled by the
registrar:
· if the holder of the exemption asks for the cancellation; or
· on a ground stated in this clause.
Alternatives to cancellation for federal election exemption
Clause 603 applies if the registrar is considering cancelling an exemption
for an organisation from holding an election, on the grounds of an election
in the counterpart federal body, because an order under the Commonwealth
Act has changed the federal election result.
The registrar may instead:
· amend it; or
· cancel it and grant a new exemption to reflect the terms of the order.
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PART 14--VALIDATIONS
Division 1--Preliminary
Definitions for pt 14
Clause 604 defines terms that apply to this part.
Division 2--Validations
Limitation on validation if substantial injustice
Clause 605 provides that where invalidities are automatically validated by
the operation of this part, that validation will be limited to the extent that it
does not cause substantial injustice to stated persons. For example, where
the management committee of an organisation's counterpart federal body
made a decision to engage a contractor to conduct repairs to a building that
belonged to the organisation, the decision could be made valid as a decision
of the organisation's management committee by operation of this part. The
counterpart federal body would not be relieved of its obligation to pay the
contractor for repairs to the building, even though it may have a valid claim
for payment from the organisation.
This limitation does not apply to the operation of clauses 607 to 609.
Validation of certain acts done in good faith
Clause 606 operates automatically to validate specified acts of an
organisation, a collective body of an organisation or an officer of an
organisation where those acts would otherwise be invalid.
The acts that are validated by the operation of this clause include:
· an act that would be valid except for an invalidity in the composition of
the body doing the act, or in the election or appointment of the collective
body or officer doing the act;
· an act that would be valid except for an invalidity in the organisation's
rules or in the making or amendment of its rules;
· an act that would be valid except for an absence of quorum or another
procedural irregularity;
· an act that is invalid because of an intermingling of affairs between the
organisation and its counterpart federal body.
It deems acts to have been done in good faith unless proved otherwise. In
addition, where a person purports to be a member of a collective body of an
organisation, they are deemed to have done so in good faith, unless proved
otherwise.
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The clause is limited in its operation as follows:
· it does not affect the operation of part 7, "Conduct of elections" and part
8, "Election inquiries".
· it does not validate an invalid expulsion, suspension, fining or other
penalisation of a member of an organisation.
Finally, the clause operates retrospectively to validate invalid actions made
before its commencement and invalidities that may have occurred before an
organisation became registered.
Certain acts by persons purporting to act in an office
Clause 607 provides that, if the election of a person to an office is declared
void by the commission, then any acts done by the person, while purporting
to act in the office for a period between the declaration of the election and the
declaration of the commission, are valid.
Election not invalid because of compliance with order
Clause 608 provides that, where the commission makes an order for an
election or step in an election and it is necessary to contravene an
organisation's rules to comply with the order, then the election or step is
valid despite the contravention.
Election not invalid because of contravention of pt 13, div 3, sdiv2
Clause 609 provides that if:
· an organisation is given an exemption in relation to an election; and
· the organisation does not comply with its obligations under part 13,
division 3, subdivision 2,
the election is not invalid.
Validation of certain events after 4 years
Clause 610 automatically validates particular events 4 years after they have
happened. It is distinguished from clause 233 because it does not require
good faith as an element (i.e. the invalid event will be validated by operation
of this clause despite an absence of good faith). The events that are validated
by this clause include:
· an otherwise invalid election or appointment of an officer of an
organisation; and
· an otherwise invalid making or amending of a rule of an organisation.
A definition of the term "decision" is provided for use in this clause.
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Counterpart federal body not a ground for challenge
Clause 611 provides that the validity of specified matters about an
organisation may not be challenged in a proceeding on the grounds that the
organisation's affairs are intermingled with the affairs of its counterpart
federal body.
The stated matters include:
· an organisation's existence or registration;
· the election of an officer of an organisation;
· a rule of an organisation;
· a decision made by or about an organisation; or
· the operation of a rule of an organisation or decision made by or about
an organisation.
Amalgamations and withdrawals
Clause 612 automatically validates an otherwise invalid amalgamation or
withdrawal from amalgamation. This clause simplifies the existing
validation provisions relating to amalgamations and withdrawals from
amalgamations.
It also automatically validates anything else done for or in connection with
the amalgamation or withdrawal, which is necessary for the amalgamation
or withdrawal to be valid, and which would otherwise be invalid.
The clause only operates if no proceedings have been commenced to
challenge the amalgamation or withdrawal within 6 months after the date
from which the amalgamation or withdrawal purports to take effect.
Definitions of the terms "amalgamation" and "withdrawal" are provided
for use in this clause.
Division 3--Orders about invalidity or its effects
Commission may decide
Clause 613 provides that the commission may decide whether an invalidity
has occurred in relation to an organisation and may make a declaration as to
whether or not such an invalidity has occurred.
Who may apply
Clause 614 provides who may apply to the commission under this part for
a decision or declaration as to whether invalidity has occurred in relation to
an organisation. The only persons who may apply are the organisation
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itself, a member of the organisation, or another person the commission
considers has a sufficient interest in the matter. Examples of persons with a
sufficient interest in the matter include a creditor of the organisation in
regard to a claim on the organisation or the registrar in regard to a rule
amendment.
Orders about effects of invalidity
Clause 615 provides that the commission may make various orders about
an invalidity where it finds, on hearing the application, that an invalidity has
occurred.
The orders that the commission may make include:
· an order to remedy the invalidity; for example, the commission may
order that an organisation change its meeting procedure to ensure that an
invalidity is not repeated or continued;
· an order to change the consequences of the invalidity prospectively or
retrospectively; for example, the commission may order that an
organisation admit a person to membership retrospectively where an
invalidity has resulted in that person's application for membership not
being properly accepted;
· an order to validate an otherwise invalid act, matter or thing; this
empowers the commission to make an order that an invalidity is
validated by the operation of other provisions in this part to remove any
uncertainty about the operation of those provisions in relation to
particular invalidities; it also empowers the commission to validate
invalidities that may fall outside this part;
· additional orders that are consequential to those listed above.
In exercising its functions under this clause the commission must not make
an order that would cause substantial injustice to the following persons:
· an organisation to which the invalidity relates;
· a member or creditor of the organisation; or
· a person dealing with or who has dealt the organisation.
PART 15--AMALGAMATIONS AND WITHDRAWaLS
Division 1--Preliminary
Definitions for pt 15
Clause 616 provides definitions for certain words and phrases to be applied
under this part.
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Division 2--Amalgamations
Amalgamation permitted only under div 2
Clause 617 establishes that an amalgamation may be carried out only under
this division.
Commission to approve proposed amalgamation
Clause 618 provides the conditions under which the commission may
approve an amalgamation.
Additional regulation-making power for amalgamations
Clause 619 describes what a regulation may provide for.
Effect of amalgamation
Clause 620 describes the effect of amalgamation, including when the clause
applies, the obligations of the registrar and the effect on any deregistering
organisation. The amalgamated organisation must take all necessary steps
to give effect to the amalgamation.
Holding office after amalgamation
Clause 621 provides for an organisation's rules to allow an officer to be an
officer of the proposed amalgamated organisation subject to a number of
conditions described in the clause.
This clause applies only to the rules of an amalgamated organisation or
proposed amalgamated organisation if the organisation is not a corporation.
Division 3--Withdrawing from amalgamation
Requirements for withdrawal
Clause 622 provides that a constituent part may withdraw from an
amalgamated organisation subject to the specified conditions.
Commission to approve proposed withdrawal
Clause 623 provides the commission with the power to approve a
withdrawal and describes the two conditions that must be met for the
commission to exercise its power.
Additional regulation-making powers for withdrawals
Clause 624 describes the matters that may be dealt with by the regulation.
Registration of constituent part on withdrawal
Clause 625 provides the action that the registrar must take on the
withdrawal day.
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Members of constituent part may join newly registered organisation
Clause 626 provides that members of the amalgamated organisation, who
are eligible to join the newly registered organisation, may join that
organisation without paying a membership fee.
Division 4--Offences about amalgamation or withdrawal ballots
Obstructing conduct of ballot
Clause 627 provides that it is an offence for a person to obstruct another
person from conducting an amalgamation or withdrawal ballot.
A maximum penalty of 40 penalty units is provided.
Offences about conduct of ballots
Clause 628 provides that a person must not do specified things in relation to
an amalgamation or withdrawal ballot, without lawful authority or excuse.
A maximum penalty of 80 penalty units is provided.
Disadvantaging another to induce vote or omission to vote
Clause 629 provides that a person must not cause, inflict or procure a
disadvantage to anyone or anything because of or to induce certain matters.
A maximum penalty of 80 penalty units is provided.
Definitions of the terms "cause" and "disadvantage" are provided for use in
this clause.
Unauthorised access to ballot paper
Clause 630 requires that a person must not do certain things, unless they
have a reasonable excuse, in relation to another person's ballot paper.
A maximum penalty of 80 penalty units is provided.
Division 5--Miscellaneous
Using resources for proposed amalgamation
Clause 631 provides that an organisation may use its resources to support
the proposed amalgamation, under specified conditions.
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Costs of ballot conducted by electoral commission
Clause 632 provides that expenses in relation to a ballot for an
amalgamation or withdrawal are to be paid for by the State.
No action for defamation in certain cases
Clause 633 provides that defamation proceedings do not lie against
specified persons for printing or publishing a document for an
amalgamation or withdrawal ballot.
Commission may resolve difficulties
Clause 634 provides that the commission, on application, may make an
order to overcome any difficulty that may arise in connection with this part
or to give effect to a step necessary for the amalgamation or withdrawal.
Registration of property transferred under pt 15
Clause 635 provides for the transfer and registration of property after an
amalgamation or a withdrawal.
A definition is provided of the term "authorised person" for use in this
clause.
Part applies despite laws or instruments
Clause 636 provides that:
· this part prevails over another Act or an instrument;
· nothing done under this part makes an organisation or other person
liable for a civil wrong or a contravention of a law for a breach of a
contract or confidence;
· action taken under the part does not release any surety or part of the
surety's obligations
· where consent is required by a person to give effect to any aspect of this
part, that consent is deemed to be given.
A definition of the term "instrument" is provided for use in this clause.
PART 16--DEREGISTRATION
Division 1--Preliminary
Definitions for pt 16
Clause 637 provides for definitions of certain words and phrases to be
applied under this part.
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Division 2 -- General deregistration provisions
Subdivision 1--Bringing deregistration proceedings
General deregistration grounds
Clause 638 provides the grounds on which deregistration of an organisation
can be ordered by the full bench.
Who may bring deregistration proceedings
Clause 639 provides who may apply to the full bench for a deregistration
order.
Subdivision 2--Deciding deregistration proceedings
Hearing on ground other than industrial conduct
Clause 640 provides that the full bench may make a deregistration order on
the basis of a ground other than industrial conduct.
Hearing on industrial conduct ground
Clause 641 provides what the full bench must do at a deregistration hearing
if a ground on which the proceedings is based is an industrial conduct
ground.
Deferral of deregistration for industrial conduct
Clause 642 provides that the full bench may defer making its decision
regarding a deregistration order and make a deferral order instead.
When deferral order ends
Clause 643 describes the circumstances under which a deferral order ceases
to have any effect.
Incidental orders and directions
Clause 644 provides that if the full bench makes a deregistration order, it
may also make an order or direction to give effect to the deregistration order
or an order regarding property of the deregistered organisation, whether or
not anyone has applied for the order.
Division 3--Small organisations
Commission may review
Clause 645 establishes that the commission may conduct a review of an
organisation as to whether the organisation is or may be a small
organisation.
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Deregistration proceedings by commission
Clause 646 provides that the commission may bring a deregistration
proceeding under this division against an organisation if the commission
considers an organisation is or may be a small organisation. The
commission must not bring a proceeding under this division more than
once a year against the same organisation.
Deciding proceedings
Clause 647 requires that the commission must make a deregistration order
if satisfied the organisation is a small organisation. However, the
commission may decide not to make the order if satisfied there are special
circumstances and the continued registration is in the public interest.
Division 4--Effects of deregistration
Application and purpose of div 4
Clause 648 provides that this division provides the effects of a
deregistration order.
When deregistration takes effect
Clause 649 provides that the deregistered organisation ceases to be an
organisation from the making of the deregistration order. The registrar
must record the deregistration and date of the order in the register.
Effect on corporate status
Clause 650 provides that, if a deregistered organisation was a corporation
under another law, the deregistered organisation continues to be
incorporated, but only under the other law. If the deregistered organisation
was incorporated only because of its registration, it ceases to be incorporated
and becomes an association. Its rules continue in force so far as they can be
carried out or complied with, but its name is taken to be changed so as to
omit the words required for a registered name under clause 424 (2).
No release of liabilities
Clause 651 provides that the deregistration does not act to satisfy a liability
or penalty incurred by a deregistered organisation or a member of the
deregistered organisation before the deregistration.
Effect on property
Clause 652 provides what is to happen to the property of a deregistered
organisation that was incorporated because of its registration.
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A definition of the term "rules" is provided for the purposes of this clause.
Effect on certain instruments
Clause 653 provides the consequences of deregistration of an organisation
in relation to an award, EFA, commission order, certified agreement or
industrial agreement that bound the deregistered organisation and its
members before the deregistration.
PART 17--MISCELLANEOUS
Hearing to be given before making decision
Clause 654 provides who is entitled to be heard before any decision under
this chapter is made by the court, commission or registrar. However, this
does not apply where a person asks the court or commission or registrar to
make a stated decision. A regulation may further provide for objections to
the making of a decision under this chapter or the way in which the
opportunity to be heard must be given. A decision for this part includes an
amendment of a rule of an organisation other than correction of a formal or
clerical error and a referral.
A definition of the term "decision" is provided for use in this clause.
Notice of registrar's decisions
Clause 655 provides the circumstances under which this section applies and
requires the registrar to promptly give a notice stating the decision, reasons
for the decision, right of appeal and how to start an appeal.
Falsely obtaining organisation's property
Clause 656 provides that a person must not obtain possession of an
organisation's property by false representation or imposition.
A maximum penalty of 40 penalty units is provided.
Wrongfully applying organisation's property
Clause 657 provides what a person holding an organisation's property must
not do with such property.
A penalty of 40 penalty units is provided where such prohibited conduct can
be proven.
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Stamp duty
Clause 658 continues the provisions of section 292 of the Industrial
Organisations Act 1997 and provides the circumstances under which stamp
duty is not payable.
CHAPTER 13--OFFENCES
Disobeying penalty orders
Clause 659 preserves section 437 of the Workplace Relations Act 1997, and
provides that a person must obey a penalty order unless they have a
reasonable excuse.
A definition for the term "penalty order" is provided for use in this clause.
Improper conduct towards member, magistrate or registrar
Clause 660 requires that a person must not engage in specified improper
conduct and enables a person engaging in such conduct to be excluded from
the hearing. A maximum penalty of 100 penalty units or one year's
imprisonment for improper conduct is provided.
Definitions of the terms "industrial tribunal" and "official" are provided for
use in this clause.
Contempt by witness
Clause 661 preserves section 440 of the Workplace Relations Act 1997 and
makes it an offence for a person, when issued an attendance notice to appear
before an industrial tribunal, not to appear; or alternatively, when appearing,
to refuse to answer questions or produce records as required or refuse to be
sworn.
A maximum penalty of 40 units is provided.
A definition of the term "industrial tribunal" is provided for use in this
clause.
False or misleading statements
Clause 662 preserves section 441 of the Workplace Relations Act 1997 and
prohibits a person from making false or misleading statements to an official
for this Bill. A person must not be prosecuted under this clause if he or she
can be prosecuted under clauses 223 or 283 of this Bill.
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A maximum penalty of 40 units is provided.
A definition of the term "official" is provided for use in this clause.
False or misleading documents
Clause 663 prohibits a person from giving an official a document the
person knows is false or misleading, but provides the circumstances under
which a person may give such a document without penalty. A person must
not be prosecuted under this clause if he or she can be prosecuted under
clauses 201 or 283 of this Bill.
Maximum penalty is 40 penalty units.
A definition of the term "official" is provided for use in this clause.
Obstructing officers
Clause 664 preserves section 443 of the Workplace Relations Act 1997, and
provides the ways in which a person must not obstruct an officer
performing a function or exercising a power under this Bill. A person must
not be prosecuted under this clause if the person can be prosecuted under
clause 283 of this Bill.
A maximum penalty of 40 penalty units is provided.
A definition of the term "officer" is provided for use in this clause.
Avoiding Bill's obligations
Clause 665 requires that an employer, to intentionally avoid an obligation to
pay an employee for a public holiday or leave, must not dismiss the
employee or interrupt the employee's continuity of service if the employee's
entitlement for long service leave is worked out under clause 47. If the court
finds that an employer has contravened the clause regarding long service
leave, the court must order, in addition to any penalty, payment of
proportionate long service leave.
A maximum penalty of 40 penalty units is provided.
Definitions of the terms "dismiss", "leave" and "obligation" are provided
for use in this clause.
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Non-payment of wages
Clause 666 provides that an employer must pay an employee's wages to the
employee or in accordance with an employee's written direction. Details of
the offence of non-payment of wages and the penalties a magistrate may
impose upon hearing a complaint regarding non-payment of wages are
provided.
A maximum penalty of 200 penalty units is provided.
Accepting reduced wages
Clause 667 preserves section 446 of the Workplace Relations Act 1997 and
makes it an offence for an employee to enter into an agreement with an
employer to accept wages that, to the employee's knowledge, are reduced.
The return from the employee to the employer of wages payable under an
industrial instrument or permit is evidence that the employee has entered
into an agreement to accept reduced wages.
A maximum penalty of 16 penalty points is provided.
Publishing statement about employment on reduced wages
Clause 668 preserves section 447 of the Workplace Relations Act 1997 and
makes it an offence for a person to publish, or cause to be published, a
statement that a person is ready and willing to employ a person on reduced
wages or be employed on reduced wages. It further provides the
circumstances under which proceedings for an offence under this section
can be commenced and details the circumstances which must exist before
proceedings can be commenced against a proprietor of a newspaper or
advertising medium.
A maximum penalty of 16 penalty units is provided.
Definitions of the terms "publish" and "publisher" are provided for use in
this clause.
Offence to offer or accept premiums
Clause 669 preserves section 448 of the Workplace Relations Act 1997 and
prohibits, subject to the Private Employment Agencies Act 1983, a person
from offering, demanding, asking, accepting or agreeing to accept an
employment premium. If the court finds that a defendant is guilty of
accepting a premium it must, in addition to any penalty, order the defendant
to pay an amount equivalent to the premium to the person from whom the
defendant accepted the premium.
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A definition of the term "employment premium" is provided for use in this
clause.
Contraventions of industrial instruments
Clause 670 requires that a person must not contravene an industrial
instrument and provides the penalties for first and subsequent offences
under this clause.
Injunction restraining contraventions
Clause 671 provides that where a person is found guilty of contravening an
industrial instrument, permit or this Bill, and the court is satisfied the
contravention consisted of wilful action or default of the person, the court
may grant specified injunctions. The person must obey the injunction.
A maximum penalty of 200 penalty units is provided for failure to do so.
Persons considered parties to offences
Clause 672 preserves section 451 of the Workplace Relations Act 1997 and
provides that, without limiting section 7 of the Criminal Code, an
organisation or person who takes part in, counsels, encourages or is
concerned in the commission of an offence under this Bill is taken to have
committed the offence and is liable to the penalty prescribed for the offence.
Executive officers must ensure corporation complies with ss 368, 406
and 666
Clause 673 preserves section 452 of the Workplace Relations Act 1997 and
provides the circumstances when executive officers are liable in conjunction
with the corporation for offences under this Bill, and what defence the
executive officer may offer regarding the offence.
A definition of "executive officer" for this clause is provided.
Attempt to commit offence
Clause 674 preserves section 453 of the Workplace Relations Act 1997 and
provides that a person who attempts to commit an offence, commits an
offence and is liable to the same penalty as if the attempted offence had been
committed.
References to making false or misleading statements
Clause 675 provides that a reference to a person making a statement
knowing that it is false or misleading includes a reference to the person
making the statement being reckless about whether the statement is false or
misleading.
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References to engaging in conduct
Clause 676 provides that a person engaging in conduct includes a reference
to a person being, directly or indirectly, a party to or concerned in the
conduct.
CHAPTER 14--LEGAL PROCEEDINGS
General application of jurisdictional provisions
Clause 677 preserves section 454 of the Workplace Relations Act 1997. It
establishes that the provisions of the Bill providing powers of and
procedures before the court, the commission or an Industrial Magistrates
Court apply in relation to the jurisdiction of those authorities under this Bill
or any Act, unless the contrary intention appears.
Evidentiary provisions affecting proceeding
Clause 678 provides the evidentiary nature in proceedings of specified
matters including appointments, signatures and documents.
Confidential material tendered in evidence
Clause 679 preserves section 456 of the Workplace Relations Act 1997 and
applies to records tendered to the court or commission that relate to the
person's trade secrets or the financial position of a party or witness. The
clause provides for the confidentiality of these records and for action that the
court, commission or registrar may take.
A definition of the term "expert witness" is provided for use in this clause.
Evidentiary value at large of official records
Clause 680 preserves section 457 of the Workplace Relations Act 1997 and
provides that a copy of the industrial gazette or an extract from the industrial
gazette, either of which contains a decision of the court or commission, is
admissible in all proceedings as evidence of the decision.
The clause provides details of other specified documents of which
copies are admissible as evidence.
Proof of certain facts by statement
Clause 681 preserves section 458 of the Workplace Relations Act 1997 and
provides for the proof of specified matters by a statement in a complaint or
other process by which the proceeding started.
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Evidentiary value of certificate of trustee of superannuation fund
Clause 682 preserves section 459 of the Workplace Relations Act 1997, and
provides for a certificate of a trustee of an occupational superannuation
scheme to be proof of the amount of contributions that should have been
paid into the scheme and the amount of return these contributions would
have attracted.
A definition of the term "trustee's certificate" is provided for use in this
clause.
Offence proceedings generally
Clause 683 provides that offences under this Bill are to be heard by the
court or a magistrate within the limits of their jurisdiction. A proceeding
before a magistrate is to be taken in a summary manner and the Industrial
Magistrate's Court is constituted by a magistrate sitting alone.
Provision is made for the transfer of proceedings from a magistrate in
one district to one in another district, and for transfers after
proceedings have commenced and evidence has been heard.
The time limits within which proceedings for an offence must
commence are prescribed.
Organisations may start proceedings
Clause 684 preserves section 461 of the Workplace Relations Act 1997 and
provides that an organisation may commence proceedings for
contraventions of industrial instruments, permits or offences under this Bill
and recover money on behalf of an employee.
Recovering amounts from organisations
Clause 685 preserves section 462 of the Workplace Relations Act 1997 and
provides that the recovery of any penalty or an amount ordered to be paid by
an organisation can be enforced against the organisation's property.
A definition of the term "property" is provided for use in this clause.
CHAPTER 15--EMPLOYEES IN EMPLOYMENT OF STATE
Application of Act to State
Clause 686 provides that this Bill binds the State, except in relation to
certain specified matters.
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Conflict between industrial instruments etc. and statutory decision
Clause 687 resolves inconsistencies between specified documents,
including awards, agreements and directives.
A definition of the term "directive" is provided for use in this clause.
Protection of public property and officers
Clause 688 preserves section 465 of the Workplace Relations Act 1997 and
provides that execution or attachment cannot be issued against the property
or revenues of the State or a department to enforce an industrial instrument
or decisions of the court, commission or a magistrate. A person who is or is
taken to be an employer of employees in a department is not personally
liable under a relevant industrial instrument or for contravention of the
instrument.
A definition of the term "execution or attachment" is provided for use in
this clause.
Ambit of reference to State
Clause 689 preserves section 466 of the Workplace Relations Act 1997 and
provides that the Bill binds any instrumentality or body that is not a
department and which might be taken to represent the State or to have the
rights, privileges or immunities of the State, in the same way as it binds any
other employer. The exclusions and protections given to the State do not
apply to such instrumentalities or bodies. A definition of the term
"department or part of a department" is provided for use in this clause.
Representation of public sector units
Clause 690 preserves section 467 of the Workplace Relations Act 1997 and
provides who must represent a public sector unit in its role as an employer
in an industrial cause in the court, commission or an Industrial Magistrate's
Court. A definition of the term "industrial tribunal" is provided for use in
this clause.
Industrial cause affecting diverse employees
Clause 691 preserves section 468 of the Workplace Relations Act 1997 and
provides that, if the Minister determines an industrial cause to be one that
affects, or is likely to affect, employees in more than one public sector unit,
the chief executive of the department responsible for the Bill is taken to be
the employer of all affected employees. Any agreement made by the chief
executive or order made in a proceeding to which the chief executive is a
party, binds all those to whom the agreement or order purports to apply.
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CHAPTER 16--INDUSTRIAL RELATIONS ADVISORY
COMMITTEE
Committee established
Clause 692 establishes the industrial relations advisory committee, and
provides the composition of the committee and how members of the
committee are appointed.
Functions of committee
Clause 693 specifies the committee's functions, including the types of
matters it is to investigate and on which it is to report to the Minister. It
provides the people with whom the committee must consult and confer in
the execution of its functions and specifies that the committee must consider
the attainment of the objects of this Bill.
CHAPTER 17--GENERAL
Employees working in and outside State
Clause 694 preserves section 469 of the Workplace Relations Act 1997 and
applies where an employer with a workplace in Queensland engages an
employee in Queensland. Where the work of this employee is performed
partly in Queensland and partly in some other State, the employment is
bound by the relevant Queensland industrial instrument for the full period of
the employment including that outside Queensland.
Student's work permit
Clause 695 provides that a student undertaking tertiary studies may apply to
the registrar for a permit to work in a particular calling for a particular
period. It must be demonstrated by the applicant that the period of work is
necessary to complete the course.
The conditions of the permit operate to the exclusion of any provision
contained in an award or certified agreement.
Aged or infirm persons permits
Clause 696 provides that an application may be made to the commission for
a permit for an aged or infirm person to work in a calling for less than the
wages prescribed by an industrial instrument.
The relevant employee organisation must be notified of the application and
any objections to the granting of the permit must be heard by the
commission.
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The conditions of the permit operate to the exclusion of any provision
contained in an award or certified agreement.
Copy of award and certified agreement to be displayed
Clause 697 provides for the display of a true copy of an applicable industrial
agreement (other than a QWA) in the workplace.
A maximum penalty of 20 penalty units is provided.
A definition of the term "workplace" is provided for use in this clause.
Incorporating amendments in awards, certified agreements or orders
Clause 698 provides that the registrar may reprint and consolidate an award,
certified agreement or order when amended.
Obsolete industrial instrument
Clause 699 provides a procedure by which the registrar can cancel obsolete
industrial instruments.
Certificate of employment on termination
Clause 700 preserves section 477 of the Workplace Relations Act 1997 and
provides that, on termination of employment (by either the employer or the
employee), the employer must give the former employee a signed certificate
providing details required by a regulation.
A definition of the term "terminated" is provided for use in this clause.
False pretences relating to employment
Clause 701 preserves section 478 of the Workplace Relations Act 1997 and
provides that a person is prohibited from specified false pretences in relation
to employment.
A person's liability to be dealt with for an offence under this clause
does not affect their liability under the Criminal Code for forgery or
false pretences. However, a person cannot be dealt with under both
this Bill and the Criminal Code.
Protection from liability
Clause 702 provides that an official bears no civil liability in respect of acts
done or omissions made honestly and without negligence, acting under this
Bill or any of the Acts listed in clause 350(4). If this provision prevents civil
liability from attaching to a person, it attaches instead to the State.
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Industrial Relations
A definition of the term "official" is provided for use in this clause.
Payments to financially distressed
Clause 703 provides for the payment from the unclaimed moneys fund to
an employee suffering hardship due to an underpayment of wages which
cannot be recovered from the employer. The employer is still liable to pay
the unpaid wages even though payment has been made from the fund. If
the employee subsequently receives remuneration, he or she is to make
payment to the fund. Definition of the term "remuneration" is provided for
use in this clause.
Notices and applications to be written
Clause 704 preserves section 481 of the Workplace Relations Act 1997 and
provides that any notices or applications that are required under this Bill
must be in writing, unless otherwise provided.
Inaccurate descriptions
Clause 705 preserves section 482 of the Workplace Relations Act 1997 and
provides that the operations of this Bill are not prevented or abridged by
misnomer, inaccurate description or omission in or from a document given
under this Bill in relation to subject matter that is sufficiently clear to be
understood.
Confidentiality of information
Clause 706 preserves section 483 of the Workplace Relations Act 1997 and
prohibits a person (not limited to an inspector) from disclosing information
acquired in the performance of functions or the exercise of powers under the
Bill except in specified circumstances. A maximum penalty of 16 penalty
units is provided.
Application of Act generally
Clause 707 preserves section 484 of the Workplace Relations Act 1997 and
provides that, where a provision of this Bill does not apply to a person or
class of person, a decision is inoperative to the extent that it purports to
apply to the person or member of the class about the provision's subject
matter.
This Bill does not create rights, privileges or benefits for a period of
service as an employee if similar rights etc. were given or received by
the person under the repealed Act.
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Approved forms
Clause 708 provides that forms may be used by or in the court,
commission, Industrial Magistrates Court or registry when approved by the
president. The chief executive may approve forms for use in other
circumstances. Any forms prescribed in the Industrial Court (Industrial
Organisations) Rules 1990 or the Industrial Court Rules 1997 for use
under the rules may continue to be used until 1 July 2001, however, the
provision relating to the previous Acts expires on 2 July 2001.
Regulation-making power
Clause 709 provides that the Governor in Council may make regulations
and specifies some of the matters on which regulations may be made.
CHAPTER 18--SAVINGS AND REPEALS
Savings
Clause 710 provides that a person prescribed under any Act to be an
employee continues to be an employee within the meaning of this Bill.
An instrument (subject to subclause (2)) continues in force as if it had been
made, given, done, granted or approved under this Bill. This instrument
may be amended, revoked or suspended under this Bill.
If a proceeding was commenced under a provision of the Workplace
Relations Act 1997 or the Industrial Organisations Act 1997, it is to be
continued under the provisions of the repealed Acts.
Regulation and rules to continue
Clause 711 provides for the continued operation of:
· the Workplace Relations Regulation 1997;
· the Industrial Court (Industrial Organisations) Rules 1990; and
· the Industrial Court Rules 1997.
These instruments are to be read with the changes necessary to make them
consistent with this Bill.
The Industrial Organisations Regulation 1997 continues in force, and may
be amended, as if it had been made under this Bill.
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Repeals
Clause 712 provides for the repeal of:
· the Workplace Relations Act 1997; and
· the Industrial Organisations Act 1997.
The repeal of the Acts can be made by one or more proclamations.
CHAPTER 19--SAVING AND TRANSITIONAL PROVISIONS
FOR INDUSTRIAL RELATIONS ACT 1999
PART 1--EXISTING INDUSTRIAL AGREEMENTS
Existing industrial agreement continues
Clause 713 provides for the continued effect of industrial agreements that
are in force immediately before the commencement of this clause.
Provisions are made for the amendment and termination of industrial
agreements.
Industrial agreement displaced by QWA
Clause 714 provides that if a QWA comes into operation, the industrial
agreement will stop having effect in relation to the employee.
PART 2--EXISTING CERTIFIED AGREEMENTS
New termination provisions for existing certified agreements
Clause 715 provides for the continued effect of certified agreements that are
in force immediately before the commencement of this clause and provides
for the manner in which they can be terminated.
EFAs that prevail over certified agreements
Clause 716 provides for the circumstances in which an EFA will override a
certified agreement.
Certified agreements that prevail over EFAs
Clause 717 provides for the circumstances in which a certified agreement
will override an EFA.
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PART 3--EXISTING EFAS
Existing EFA continues
Clause 718 provides for the continued effect of EFAs after the
commencement of this clause. The clause also provides that certain sections
of the Industrial Relations Act 1990 continue to apply to EFAs.
EFA displaced by QWA and determination
Clause 719 provides for the circumstances in which a QWA or a
determination under clause 149 will override an EFA.
PART 4--UNLAWFUL DISMISSALS
Dismissals before commencement of this section
Clause 720 provides that a dismissal that occurred before the
commencement of this clause continues to be dealt with according to the
provisions of the repealed Act.
PART 5--REPRESENTATION RIGHTS OF EMPLOYEE
ORGANISATIONS
Applications under the repealed Act, s 293
Clause 721 provides that, for an application made under clause 293 of the
Workplace Relations Act 1997, that section continues to have application,
and any order made as a result of the hearing has effect as if it had been
made before the section was repealed.
PART 6--REFERENCES AND APPOINTMENTS
References to repealed Act or Industrial Organisations Act 1997
Clause 722 provides that, in any Act or document, a reference to the
Workplace Relations Act 1997 or Industrial Organisations Act 1997 is
taken to be a reference to this Bill, if the context permits.
Appointments continue
Clause 723 provides for the continuation of certain appointments made
under the Workplace Relations Act 1997 and the Industrial Organisations
Act 1997.
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PART 7--VETE ORDERS AND DETERMINATIONS
Proceedings commenced under the Vocational Education, Training and
Employment Act 1991
Clause 724 provides for ongoing proceedings to be continued and finished
as if they had been started under the corresponding provisions of this Bill.
Orders and determinations under the Vocational Education, Training
and Employment Act 1991
Clause 725 provides for:
· an order of the commission made under sections 83, 86(2) or 87(5) of
the Vocational Education, Training and Employment Act 1991;
· a determination by the State Training Council under sections 86(5) or
87(2) of the Vocational Education, Training and Employment Act 1991;
· an order of the commission made under section 89(1) of the Vocational
Education, Training and Employment Act 1991
to continue to have effect after the commencement of this Bill.
PART 8--ORGANISATIONS
Organisations with dual corporate status
Clause 726 provides that this clause applies to an organisation that was
incorporated under the Industrial Organisations Act 1997 and was also:
· a corporation under the Corporations Law, section 57A;
· an incorporated association under the Associations Incorporation Act
1981; or
· incorporated under a law of the State.
Two years after the commencement, these corporations lose the
incorporated status that they obtained under the former incorporation
provisions.
An organisation may apply to the registrar for an earlier cancellation of its
incorporation under the former incorporation provisions. In considering the
cancellation, the registrar may refer the application to the commission to
resolve any difficulties that may arise.
A definition of the term "former incorporation provision" is provided for
use in this clause.
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Continued registration of organisations
Clause 727 provides for the continued registration of organisations that
were registered immediately before the commencement of this Bill.
Applications for exemption from membership of an organisation
Clause 728 provides for continued operation of the procedure under the
Industrial Organisations Act 1997 for the hearing of an application for
exemption from membership of an organisation until a regulation is made.
Amalgamations
Clause 729 provides for the continued operation of certain sections of the
Industrial Organisations Act 1997, until a regulation is made to replace the
specified sections.
Withdrawals from amalgamations
Clause 730 preserves certain sections of the Industrial Organisations Act
1997 until such time as a regulation is made that is expressed to replace
these sections.
Election and ballot expenses
Clause 731 provides for the continued operation, in specified circumstances,
of specified sections of the Industrial Organisations Act 1997.
Political objects fund
Clause 732 provides interim provisions, and the continued operation
of section 227 of the Industrial Organisations Act 1997, if an
organisation conducted a political objects fund under the Industrial
Organisations Act 1997.
CHAPTER 20--AMENDMENT OF PUBLIC SERVICE ACT 1996
Act amended
Clause 733 provides that this chapter amends the Public Service Act 1996.
Amendment of s 22 (Application of Act to certain public sector units
etc.)
Clause 734 amends section 22 by replacing the term "remuneration" with
"overall employment conditions". The insertion of the concept of "overall
employment conditions", which means "remuneration and conditions of
employment", will overcome any ambiguity and ensure that an employee's
total overall benefits cannot be reduced. This amendment will also be
consistent with amendments to sections 33 and 70.
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The definition of remuneration is also omitted for this section, as the
definition of "overall employment conditions" is being inserted into the
dictionary.
Amendment of s 33 (Functions of commissioner)
Clause 735 amends section 33 by reflecting changes to Ministerial
responsibilities under the Administrative Arrangements Order (No. 1) 1998,
which gave the Minister for Employment, Training and Industrial Relations
(the industrial relations Minister) responsibility for public sector
remuneration and other public sector employment matters.
Subsections (b), (e) and renumbered (m) are amended by replacing
"employment" with "workforce practices". Employment matters are now
the responsibility of the industrial relations Minister. The commissioner has
the responsibility for workforce practices that aim to improve organisational
performance, by examining such matters as organisational climate and
morale, and flexible work practices.
Subsection (f) is amended to clarify the function of the Public Service
Commissioner with respect to ensuring that the interests of the Government
as public service employer are protected, only in so far as those interests
relate to the other functions of the commissioner under the section.
Subsection (g) is amended to acknowledge that the Public Service
Commissioner should retain responsibility for overall remuneration and
employment conditions for the senior executive service, senior officers and
public service officers on contract whose remuneration is equal to, or higher
than, the remuneration payable to a senior officer.
Subsections (h) to (o) are renumbered as subsections (i) to (p).
A new subsection (h) is inserted that recognises the responsibilities of the
Public Service Commissioner in terms of public service management,
agency performance, workforce practices and their links to public service
remuneration and employment conditions.
Subsection (n) is amended to recognise the commissioner's responsibilities
to undertake or participate in negotiations affecting public service
employees, where those negotiations relate to the commissioner's functions
under this section.
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Industrial Relations
Amendment of s 34 (Rulings of industrial relations Minister and
commissioner)
Clause 736 amends section 34(1) to (3) to generally reflect changes to
Ministerial responsibilities under the Administrative Arrangements Order
(No. 1) 1998, which gave the industrial relations Minister responsibility for
public sector remuneration and other public sector employment matters. The
clause reflects the power of the Minister to issue directives and guidelines
for those matters relevant to the additional ministerial responsibilities given
under the Order. The power of the Public Service Commissioner to issue
directives and guidelines has been clarified to those matters relating to the
commissioner's functions under the Act, as well as overall remuneration
and employment conditions for the senior executive service, senior officers
and public service officers on contract whose remuneration is equal to, or
higher than, the remuneration payable to a senior officer.
Subsections (4) to (6) are renumbered as subsections (3) to (5).
Amendment of s 69 (Basis of employment--tenure or contract)
Clause 737 amends section 69 and has the effect of providing that both the
industrial relations Minister and the Public Service Commissioner may
decide that an appointment may be made on a contract for a fixed term.
The clause also reflects the division of responsibilities between the industrial
relations Minister and the Public Service Commissioner in terms of the
functions under section 33. The Public Service Commissioner will be
responsible for determining, by directive, whether an appointment may be
made on a contract for a fixed term for officers whose remuneration under
the contract will be equal to, or higher than, the remuneration payable to a
senior officer.
Amendment of s 70 (Basis of employment for contract employment)
Clause 738 amends section 70(6) to clarify and strengthen the principle that
employees should not be disadvantaged by their appointment on a contract
for a fixed term. The overall employment conditions of the contract must
not, on balance, be less than those prescribed if the officer was appointed on
a tenured basis. The words "on balance" provide flexibility to allow the
parties to negotiate an overall package of conditions that, on balance, are not
less than the conditions that would exist if the employee were a tenured
officer.
Subsection (7) is amended to reflect the correct title of the Queensland
Industrial Relations Commission.
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Subsection (8) is amended to replace "remuneration" with "overall
employment conditions", which is to be defined in the dictionary to mean
remuneration and conditions of employment. This is consistent with
amendments to section 22.
Amendment of s 81 (Action because of surplus)
Clause 739 amends section 81(2) the effect of which is to allow both the
industrial relations Minister and the Public Service Commissioner to issue
directives, in accordance with their respective responsibilities under the Act,
about surplus employees, i.e. the commissioner may issue directives for
deployment or redeployment of employees and the Minister may issue
directives for determining the quantum of severance payments applicable to
certain surplus employees.
Amendment of s 85 (Mental or physical incapacity)
Clause 740 amends section 85(1) to provide the ability for an employing
authority to direct a public service employee to submit to medical
examination, even if the employee is on approved leave. The current
subsection (1)(a) specifies that the public service employee must be absent
from duty without approved leave or the employing authority is reasonably
satisfied that the person is not performing his or her duties satisfactorily. If
an employee is on approved leave (eg. an employee has accrued sick leave
and continues to supply medical certificates), even if such leave has been for
an extended period, the employing authority is unable to direct that
employee to submit to medical examination if the authority reasonably
suspects that the employee's absence is caused by mental or physical illness
or disability. Presently, the only way to address this situation is for the
employing authority not to approve the leave, thereby opening the way for
the employee to be `absent from duty without approved leave', but also
causing the employee to loose any entitlement to salary or wages.
Amendment of s 114 (Application of Act to general and temporary
employees)
Clause 741 amends sections 114(1) and 114(3) to allow both the industrial
relations Minister and the Public Service Commissioner, in accordance with
their respective responsibilities under the Act, to issue directives which are
to apply to general and temporary employees.
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Industrial Relations
Replacement of s 117 (Inconsistency between directives and industrial
agreements)
Clause 742 omits section 117 and replaces it with a new section. In terms of
the amendments to section 33, the Public Service Commissioner's
responsibilities will be confined to public service management issues and
not remuneration and conditions of employment (other than for the senior
executive service, senior officers and officers on contract whose
remuneration is equal to, or higher than, the remuneration payable to a
senior officer). Public service remuneration and conditions of employment
for other employees will be the responsibility of the industrial relations
Minister. The clause provides that directives of the industrial relations
Minister will not prevail over an industrial agreement unless the directive
otherwise provides. As these directives will be concerned with industrial
relations issues, such as public service remuneration and employment
conditions, they will be open to the jurisdiction of the Industrial Relations
Commission, unless the directive itself states otherwise.
Amendment of s 118 (Regulation-making power)
Clause 743 amends section 118(3) to replace "reserved matters" with
"remuneration and conditions of employment". This reflects the additional
responsibilities bestowed on the industrial relations Minister in terms of the
Administrative Arrangements Order (No. 1) 1998. The dictionary has also
been amended to remove the definition of "reserved matters".
Amendment of s 136 (Existing regulations)
Clause 744 amends this section to insert after "this Act", the phrase "until
the commencement of the amendment to section 34 (2) under the Industrial
Relations Act 1999."
Amendment of sch 1 (Public service offices and their heads)
Clause 745 inserts the Industrial Registry and Industrial Registrar into
schedule 1 (public service offices and their heads).
Amendment of sch 3 (Dictionary)
Clause 746 amends the dictionary to insert a definition for "overall
employment conditions", to reflect the amendments contained in sections
22, 33 and 70, to mean remuneration and conditions of employment.
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CHAPTER 21--CONSEQUENTIAL AMENDMENTS
Consequential amendments
Clause 747 provides that schedule 3 amends the Acts that it mentions.
SCHEDULE 1
INDUSTRIAL MATTERS
Provides an explanation of what is considered to be an industrial matter.
SCHEDULE 2
APPOINTMENTS AND PROCEDURES
PART 1--PRESIDENT, VICE PRESIDENT, COMMISSIONER
ADMINISTRATOR AND COMMISSIONERS
Provides for the salary and allowances, superannuation benefits and leave of
absence of the president, commissioner administrator, vice president and
commissioners.
PART 2--REGISTRAR
Provides that, if the person appointed as registrar was immediately before
the appointment a public service officer, the person retains all the rights that
have accrued to the person because of their employment as a public service
officer.
The clause also provides for leave of absence of the registrar and for
resignation of the registrar.
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PART 3--INSPECTORS
Provides for appointment conditions for inspectors, limitation on the
powers of inspectors and conditions relating to inspectors' identity cards.
PART 4--PRESIDENT'S ADVISORY COMMITTEE
Provides for the term of office, remuneration of members and timing of
meetings of the president's advisory committee.
PART 5--INDUSTRIAL RELATIONS ADVISORY
COMMITTEE
Provides for the term of office, appointment of deputies to the members,
remuneration of members and the conduct of committee meetings.
SCHEDULE 3
CONSEQUENTIAL AMENDMENTS
This schedule contains complementary amendments to other Acts required
due to changes made in this Bill. Except for those listed below, all
amendments to Acts in this schedule have references to the Industrial
Relations Act 1990, the Workplace Relations Act 1997 and the Industrial
Organisations Act 1997 replaced by a reference to the Industrial Relations
Act 1999.
Other clauses have replaced sections of the Acts, where necessary, to accord
with current drafting practice.
JUDGES (SALARIES AND ALLOWANCES) ACT 1967
Provides for salaries and allowances for the president and vice president of
the Industrial Court and other members of the commission.
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VOCATIONAL EDUCATION, TRAINING
AND EMPLOYMENT ACT 1991
The Vocational Education, Training and Employment Act 1991 has been
amended to exclude specific provisions dealing with employment and
related conditions of employment for apprentices and trainees, under
registered training agreements. These provisions are included in the
Industrial Relations Bill 1999.
Other sections of the Act that are amended:
Section 90
Section 90 is renamed "Effect of death or retirement of partner or transfer
of business".
The clause introduces a new subclause that deems that the training
agreement is assigned to the new employer on transfer of the business.
The State Training Council must be notified of the assignment within 21
days of the transfer of the business.
Section 98
This clause omits the previous section and inserts new provisions that give
the State Training Council additional powers in relation to the cancellation of
training agreements. These powers are in addition to the powers in sections
96 and 97 of the Vocational Education, Employment and Training Act
1991.
Section 124 (3) to (6)
Allows for appeals against decisions of the Vocational Education, Training
and Employment Commission. The requirements for an appeal are also
specified.
Section 124 (11)
Amends the Act by direct appeals from the Industrial Relations
Commission or an industrial magistrate to the Industrial Court.
Section 124(12)
Amends the Act by replacing the phrase "or the Minister" with the phrase
"Industrial Relations Commission or industrial magistrate".
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Section 124
Amends the Act by inserting a definition of "Industrial Magistrates Court"
for use in this section.
Section 124A
Inserts a new section that provides the orders that an industrial magistrate or
the Industrial Relations Commission may make after hearing an appeal.
SCHEDULE 4
AMENDMENT OF MODEL ELECTION RULES
Schedule 4 amends the model election rules that are contained in schedule 4
of the Industrial Organisations Regulation 1997.
SCHEDULE 5
DICTIONARY
Schedule 5 defines terms for the purposes of this Bill. Terms already
defined and "signposted" in the body of the Bill are repeated and
cross-referenced in the Dictionary.
© State of Queensland 1999