INDUSTRIAL RELATIONS ACT 1999 Reprinted as in force on 26 October 2009 Reprint No. 6A > TABLE OF PROVISIONS Contents CHAPTER 1--PRELIMINARY 1. Short title 2. Commencement 3. Principal object of this Act 4. Definitions 5. Who is an employee 6. Who is an employer 7. What is an industrial matter 8. Provisions about appointments and procedures CHAPTER 2--GENERAL EMPLOYMENT CONDITIONS Part 1--General Division 1AA--Minimum wage 8A. Minimum wage Division 1AB--Development of skills of employees 8B. Wage structuring to develop employee skills Division 1AC--Pay and conditions for particular outworkers 8C. Pay and conditions for workers working from home etc. and not covered by award or federal award Division 1--Working time 9. Working time for an employee under an industrial instrument made on or before 1 September 2005 etc. 9A. Working time for an employee under an industrial instrument made after 1 September 2005 etc. Division 2--Sick leave 10. Entitlement Division 3--Annual leave 11. Entitlement 12. Taking annual leave 13. Payment for annual leave 13A. Annual leave loading 14. Payment for annual leave on termination of employment Division 3A--Jury service leave 14A. Jury service leave Division 4--Public holidays 15. Public holidays Part 2--Family leave Division 1--Preliminary 15A. Who is a long term casual employee for pt 2 Division 2--Parental leave 16. Who this division does not apply to 17. Definitions for pt 2 18. Entitlement 19. Notices and documents—maternity leave 20. Notices and documents—parental leave other than maternity or adoption leave 21. Notices and documents—adoption leave 22. Reasons not to give notice or documents 23. Notice of change to situation 24. Continuity of service 25. Spouses not to take parental leave at same time 26. Cancelling parental leave 27. Parental leave with other leave 28. Interruption of parental leave by return to work 29. Extending period of parental leave by notice 29A. Extending period of parental leave by agreement 29B. Employee on parental leave may apply to work part-time 29C. Application for extension or part-time work 29D. Employer to give proper consideration to application for extension or part-time work 30. Shortening period of parental leave 31. Effect on parental leave of ceasing to be the primary caregiver 32. Return to work after parental leave etc. 33. Employer's obligation to advise about parental leave entitlements 34. Dismissal because of pregnancy or parental leave 35. Replacement employees 36. Transfer to a safe job 37. Special maternity leave and sick leave 38. Special adoption leave 38A. Employer's obligation to advise about significant change at the workplace 38B. Employee's obligations to advise employer about particular changes 38C. Review of ss 29A-29D Division 3--Carer's leave 39. Employee's entitlement to carer's leave 39A. Long term casual employee's entitlement to carer's leave 39B. Short term casual employee's entitlement to carer's leave 39C. Employees etc. to provide supporting information to employer Division 4--Bereavement leave 40. Entitlement Division 4A--Cultural leave 40A. Entitlement Division 5--Part overrides less favourable conditions 41. This part overrides less favourable conditions Part 3--Long service leave Division 1--Definitions for part 3 42. Definitions for pt 3 Division 1A--Relationship between parts 3 and 6 42A. Application of pt 6 for particular purposes Division 2--Employees generally 43. Entitlement 44. Working out continuity of service for service before 23 June 1990 45. Taking long service leave 46. Payment for long service leave Division 3--Casual or regular part-time employees 47. Continuity of service—additional considerations for casual employees 48. Taking long service leave—alternative provision for casual or regular part-time employees 49. Payment for long service leave Division 4--Seasonal employees 50. Entitlement—employees in sugar industry and meat works 51. Taking long service leave—employees in sugar industry and meat works 52. Other seasonal employees Division 5--Miscellaneous 53. Payment instead of long service leave 54. Payment instead of long service leave on death 55. Continuity not broken by service in Reserve Forces 56. Recognition of certain exemptions 57. Person may be employer and employee Part 4--Review 58. Review of general employment conditions Part 5--Equal remuneration for work of equal or comparable value 59. Definition for pt 5 60. Orders requiring equal remuneration 61. Orders only on application 62. When commission must and may only make order 63. Immediate or progressive introduction of equal remuneration 64. Employer not to reduce remuneration 65. Part does not limit other rights 66. Applications under this part Part 6--Continuity of service and employment 67. Definition for pt 6 68. How part applies 69. Continuity of service—transfer of calling 70. Continuity of service—apprentices or trainees 71. Continuity of service—generally Part 7--Minimum period of notice by particular employees 71A. Minimum period of notice required from employee under particular instrument, federal award or federal agreement CHAPTER 3--DISMISSALS Part 1--Exclusions 72. Who this chapter does not apply to Part 2--Unfair dismissals 73. When is a dismissal unfair 74. Application for reinstatement 75. Conciliation before application heard 76. Arbitration when conciliation unsuccessful 77. Matters to be considered in deciding an application 78. Remedies—reinstatement or re-employment 79. Remedies—compensation 80. Sanctions for unfair dismissal—invalid reason 81. Further orders if employer fails to reinstate 82. Effect of order on leave Part 3--Requirements for dismissal 83. What employer must do to dismiss employee 84. Minimum period of notice required from employers 85. Minimum amount of compensation required Part 4--Additional requirements for dismissal Division 1AA--Redundancy payments 85A. Application of div 1AA 85B. Minimum redundancy payment 85C. Employer may apply for relief Division 1--Orders giving effect to article 12 of Termination of Employment Convention 86. When this division applies 87. Orders about severance allowance and other separation benefits 88. Time for making application under this division Division 2--Order giving effect to article 13 of Termination of Employment Convention 89. When this division applies 90. Employer must give notice of proposed dismissals 90A. Employer must consult with employee organisations about dismissals 90B. Time for making application under this division Part 6--Stand-down of employees 97. Employee stood down in December then re-employed in January 98. Permissible stand-down of employee 99. Chapter does not limit other rights 100. Inconsistent instruments and orders CHAPTER 4--FREEDOM OF ASSOCIATION Part 1--Preliminary 101. Main purposes of ch 4 102. Definitions for ch 4 103. Meaning of industrial action for ch 4 104. Meaning of engaging in conduct for a prohibited reason for ch 4 Part 2--Prohibited conduct 105. Prohibited conduct for employers and principals 106. Prohibited conduct for employees and independent contractors 107. Prohibited conduct for industrial associations 108. Certain actions by representative not prohibited conduct 108A. Action under full bench order not prohibited conduct 109. Provision requiring or permitting prohibited conduct 110. Encouragement provisions permitted Part 3--Exemption from membership 111. Who may apply for exemption 112. Procedure for hearing 113. Deciding application 114. How payment must be applied 115. Exemption certificate 116. Expiry of exemption certificate Part 4--Civil remedies 117. Who may apply 118. Conciliation required before hearing 119. Right to be heard 120. Remedies 121. Payment of penalty 122. Evidence of prohibited conduct 122A. Proof of the reason for, or the intention of, conduct not required CHAPTER 5--AWARDS Part 1--Form and application 123. Form, effect and term of award 124. Persons bound by award Part 2--Commission's powers 125. Making, amending and repealing awards 126. Content of awards 127. Dispute resolution procedures in each award 128. Awards that fix wage rates 129. Flow-on of certified agreements 130. Review of awards 131. Review of industrial instruments referred by the Part 3--Exemptions 132. Exemptions Part 4--General 133. Enforceability of awards 134. Effect of appeals on awards 135. Inconsistency between awards and contracts Part 5--Wages and employment conditions for apprentices and trainees 136. Apprentice's and trainee's employment conditions 137. Order setting minimum wages and conditions 138. Order setting tool allowance 138A. Termination of employment during probationary period 138B. Wages payable to former apprentices or trainees 139. Termination of employment before apprenticeship or 139A. Reinstatement to previous position Part 6--Labour market programs 140. Orders for wages and employment conditions Part 7--Vocational placement 140A. Vocational placement CHAPTER 6--AGREEMENTS Part 1--Certified agreements Division 1--Making agreements 141. Certified agreements 142. Who may make certified agreements 143. Proposed parties to be advised when agreement is proposed 144. What is to be done when an agreement is proposed 145. Negotiations for project agreements 146. Negotiations must be in good faith 147. Peace obligation period to assist negotiations 148. Assistance in negotiating by conciliation 149. Arbitration if conciliation unsuccessful 150. Determinations made under s 149 151. Steps to be repeated if proposed agreement is amended 152. Certificate as to requested representation Division 2--Certifying agreements 153. Applying for certification 154. Notice of hearing 155. Right of employee organisation to be heard 156. Certifying an agreement 157. When commission to refuse to certify an agreement 158. Other options open to commission instead of refusing to certify agreement 159. Procedures for preventing and settling disputes Division 3--No-disadvantage test 160. When an agreement passes the no-disadvantage test 161. Special case—employee eligible for supported wage system 162. Special case—employee undertaking approved apprenticeship or traineeship 163. Deciding designated awards Division 4--Effect of certified agreements 164. When a certified agreement is in operation 165. Certified agreement's effect on awards, agreements or orders 166. Persons bound 167. Successor employers bound Division 5--Extending, amending or terminating certified agreements 168. Extending a certified agreement 169. Amending a certified agreement 170. Amendment if discrimination between unionists and non-unionists 171. Other options open to commission instead of refusing to approve amendment of agreement 172. Terminating certified agreement on or before its nominal expiry date 173. Terminating agreement after its nominal expiry date Division 6--Industrial action 174. Protected industrial action 175. Notice of industrial action to be given 176. Secret ballot about taking industrial action 177. Industrial action must be properly authorised 179. Employer not to dismiss employee for engaging in protected industrial action 180. Remedies if employee dismissed etc. for engaging in protected industrial action 181. When industrial action must not be taken Division 7--Penalty provisions 182. Penalty provisions 183. Penalties for contravening penalty provisions Division 8--General 184. Secret ballot on valid majority 185. Coercion of persons to make, amend or terminate certified agreements etc. Part 2--Queensland workplace agreements Division 1--Preliminary 187. Definitions for pt 2 188. Proposed QWAs and ancillary documents—interpretation 189. Functions and powers of commission Division 2--General rules about QWAs and ancillary documents 190. QWAs and ancillary documents only have effect as provided by this part 191. Collective QWAs Division 3--Making, amending or terminating a QWA 192. Employer and employee may make a QWA 193. Matters to be included in QWA 194. Nominal expiry date of QWA 195. Period of operation of QWA 196. Bargaining agents 197. Amending a QWA 198. Terminating a QWA Division 4--Filing QWAs and ancillary documents 199. Filing QWAs and ancillary documents 200. Filing requirements 201. Employer's declaration must be accurate Division 5--Approving QWAs and ancillary documents 202. Additional approval requirements for QWA and ancillary documents 203. Approving QWA 204. Approving amendment agreement 205. Approving other ancillary documents 206. Commission must issue approval or refusal notice 207. Undertakings taken to be included in QWAs 208. Commission to issue copies of approved QWAs and ancillary documents Division 6--No-disadvantage test 209. When does a QWA pass the no-disadvantage test 210. Special case—employee eligible for supported wage system 211. Special case—employee undertaking approved apprenticeship or traineeship 212. Deciding designated awards Division 7--Effect of QWAs 213. QWA's effect on awards, certified agreements or orders 214. Successor employers bound 215. Parties must not contravene QWA 216. Conciliation for agreements 217. Industrial action by party to QWA Division 8--Penalty provisions and remedies 218. Penalties for contravening this part 219. Damages for contravention of QWA 220. Compensation to new employee for shortfall in entitlements 221. Injunctions Division 9--General 222. Hindering QWA negotiations 223. Persons must not apply duress or make false statements in connection with QWA etc. 224. Employer must give copy of documents to employee 225. Intervention not permitted 226. Reports and advice about development in making QWAs 227. Evidence 228. Signature for corporation CHAPTER 7--INDUSTRIAL DISPUTES Part 1--Notice of industrial dispute 229. Notice of industrial dispute Part 2--Action for settling industrial disputes 230. Action on industrial dispute 231. Mediation by commission 232. Compulsory conference 233. Enforcing commission's orders 234. Remedies on show cause notice Part 3--Ballots 235. Secret ballot on strike action 236. Effect of ballot adverse to strike Part 4--Industrial action 237. Indemnity against agent's unauthorised actions 238. Payments for strikes can not be compelled 239. Orders the commission may make 240. Commission not to deal with claims for payments for strikes 241. Right to refuse to work if imminent health or safety risk CHAPTER 8--INDUSTRIAL TRIBUNALS AND REGISTRY Part 1--Industrial Court Division 1--Industrial Court of Queensland 242. Continuance 242A. Official seal 242B. Finances of court Division 2--President 243. President of the court 244. When a Supreme Court judge is appointed as president 245. When president holds office 246. Acting president of the court 246A. Functions of president Division 3--Jurisdiction and powers of the court 247. Constitution of court 248. Court's jurisdiction 249. Court's interpretation 250. Court may refuse to proceed 251. Contempt of court Division 4--President's annual report 252. President's annual report Part 2--Industrial relations commission Division 1--Continuance and composition 255. Continuance 255A. Official seal 255B. Finances of commission 256. Composition Division 2--Membership of the commission 257. President of the commission 258. Vice president of the commission 258A. Deputy presidents of the commission 259. Commissioners 259A. Commissioner may be appointed ombudsman 260. When commissioner holds office 261. Acting vice president, deputy president or other commissioner 262. Restrictions on appointment 263. Removal of commissioners from office Division 3--The commission 264. Administrative responsibilities for the commission and registry 265. Commission's jurisdiction 266. Commission to prevent discrimination in employment 267. Commission's jurisdiction is exclusive 268. Commission may refuse to proceed 269. President to consider efficiencies that may be achieved by using dual commissioners 270. Reallocation of commission's work 271. Commission may continue to hear reallocated work 272. Decision of full bench Division 4--Commission's functions and powers 273. Commission's functions 273A. Commission may perform dispute resolution functions 274. General powers 274A. Power to make declarations 275. Power to declare persons to be employees or employers 276. Power to amend or void contracts 277. Power to grant injunctions 278. Power to recover unpaid wages and superannuation contribution etc. 279. Orders about representation rights of associations or employee organisations 280. Procedures for reopening 281. Reference to full bench 282. Case stated to court 283. Power to enter and inspect 284. Interpretation of industrial instruments 285. Conducting a secret ballot 286. Other powers 287. General rulings 288. Statement of policy Part 3--Industrial magistrates Division 1--Industrial Magistrates Court 289. Industrial Magistrates Court Division 2--Industrial magistrates 290. Office of industrial magistrate Division 3--Constitution and jurisdiction of Industrial Magistrates Court 291. Constitution of Industrial Magistrates Court 292. Magistrate's jurisdiction 293. Magistrates' jurisdiction is exclusive Part 4--Industrial registry Division 1--Industrial registry 294. Industrial registry 295. Functions of the registry 296. Seal of the registry Division 2--Industrial registrar and staff 297. Appointment of registrar 298. Termination of appointment of registrar 299. Functions and powers of registrar 300. Deputy registrar 301. Delegation by registrar 302. Acting registrar 303. Staff 304. Officers of the court and commission Division 3--QIRC website 304A. What is the QIRC website 304B. When matter is published on QIRC website Part 5--Arrangements with other authorities Division 1--Member may also be member of Australian commission 305. Member may hold other appointment Division 2--Dual commissioners 306. Appointment of Commonwealth official as commissioner 307. Role of dual commissioner Division 3--References to Commonwealth official 308. Reference of matter to Commonwealth official Division 4--Conferences and joint sessions with industrial authorities 309. Conferences with industrial authorities 310. Joint sessions with industrial authorities 311. Similar matters before full bench and industrial authority 311A. Adoption of result of joint session 312. Member's powers in joint session 313. President may decide matter not to be dealt with in joint session Division 5--Other functions etc. and arrangements 314. Functions and powers vested in commission by other jurisdictions 315. Arrangements with Commonwealth public service Part 6--Proceedings of court, commission, magistrates and registrar Division 1--Definitions 316. Definitions for pt 6 Division 2--Starting proceedings and service of process 317. Starting proceedings 318. Service of process Division 3--Conduct of proceedings 319. Representation of parties 320. Basis of decisions of the commission and magistrates 321. Competence and compellability of witnesses 322. Intervention 323. Adjournment by registrar 324. State employee to give information Division 4--Powers 325. Exercise of commission's powers 326. Interlocutory proceedings 327. Power to order inquiry or taking of evidence 328. Power to administer oath 329. Powers incidental to exercise of jurisdiction 330. Power to obtain data and expert evidence Division 5--Decisions and enforcement 331. Decisions generally 332. Reserved decisions 333. Commission decisions to be in plain English 334. Extent of decisions and their execution 335. General power to award costs 336. Recovery of amounts under orders Division 6--Protections and immunities 337. Protections and immunities Division 7--Rules and practice 338. Rules 339. Directions about practice CHAPTER 8A--QUEENSLAND WORKPLACE RIGHTS OFFICE Part 1--Preliminary 339A. Definitions for ch 8A 339B. Purpose of ch 8A Part 2--The Queensland workplace rights ombudsman 339C. Ombudsman 339D. Functions of ombudsman 339E. Ombudsman not subject to direction 339F. Powers of ombudsman 339G. Restrictions on ombudsman's functions Part 3--Particular provisions about the ombudsman 339H. Appointment of ombudsman 339I. Eligibility for appointment 339J. Term of appointment 339K. Remuneration and conditions 339L. Acting ombudsman 339M. Resignation 339N. Vacating office 339O. Removal of ombudsman from office Part 4--Preservation of rights 339P. Preservation of ombudsman's rights if a public service officer 339Q. Preservation of ombudsman's rights if ombudsman becomes public service officer 339R. Preservation of ombudsman's rights if not previously public service officer Part 5--Establishment of QWRO 339S. Queensland Workplace Rights Office 339T. Function of QWRO 339U. Control of QWRO 339V. Officers of QWRO 339W. Officers not subject to direction 339X. Finances of QWRO Part 6--Other matters 339Y. Delegation by ombudsman 339Z. Quarterly report 339ZA. Annual report 339ZB. Offence of subjecting person to any detriment CHAPTER 9--APPEALS Division 1--Appeals to Court of Appeal 340. Appeal from court or full bench Division 2--Appeals to court 341. Appeal from commission, magistrate or registrar Division 3--Appeals to full bench 342. Appeal from commission, magistrate or registrar Division 4--Appeals to commission 343. Appeal from registrar 344. Appeal against stand-downs Division 5--General 345. Definition for div 5 346. Time limited for appeal 347. Stay of decision appealed against 348. Nature of appeal 349. Finality of decisions CHAPTER 10--ENFORCEMENT Division 1--Appointment 350. Appointment of inspectors 351. Functions 352. Powers Division 2--General powers 353. Entry to places 354. General powers after entering workplaces 355. Power to require documents to be produced 356. Power to require information 357. Power to require name and address Division 3--Powers to claim and deal with unpaid amounts 358. Paying employee's wages etc. to inspector 359. Inspector's obligation for amounts paid on demand Division 4--General 360. Obstructing inspectors 361. Impersonating inspectors 362. Validity of inspector's conduct despite administrative contravention CHAPTER 11--RECORDS AND WAGES Part 1--Employers records Division 1--Definitions 363. Definitions for pt 1 Division 2--Authorised industrial officers 364. Authorising industrial officers 365. Revocation and suspending industrial officer's authorisation Division 3--Employers to keep certain records 366. Time and wages record—industrial instrument employees 367. Time and wages record—non-industrial instrument employees 368. Employee register 369. Records to be kept in English 370. Notation of wages details Division 4--Power to inspect certain records 371. Inspection of time and wages record—inspector 372. Right of entry—authorised industrial officer 373. Right to inspect and request information—authorised industrial officer 374. Inspection of employee register and index—registrar 375. Inspection of time and wages book—employees Part 2--Wages and occupational superannuation Division 1--Interpretation 376. Definitions for pt 2 377. References to service Division 2--Protection for wages 378. Wages are first charge on amounts payable to employer 379. Assignment of amount payable ineffectual against claims for wages 380. Amounts paid or payable to employer to be applied in payment of wages 381. Attachment notices 382. Effect of attachment notice 383. Orders for payment by prime contractor or clerk of the court 384. Employees to be paid according to when attachment notices are served 385. Employee may sue prime contractor 386. Cessation of attachment not to prejudice prime contractor 387. Discharge by employee for payment received 388. Remedy of subcontractor's employees 389. Prime contractor's right to reimbursement 390. Magistrate may hear claim for wages ex parte Division 3--Paying and recovering wages 391. Wages etc. to be paid without deduction 392. Paying apprentices or trainees for supervised training 393. Paying wages 394. Contract not to stipulate mode of spending wages 395. Payment of unpaid wages if employee's whereabouts unknown 396. Overpaid wages 397. Deduction of wages in lieu of notice of termination 398. Minor may recover unpaid wages 399. Recovery of unpaid wages etc. 400. Enforcement of magistrate's order Division 3A--Recovery of wages for clothing outworkers 400A. Definitions for div 3A 400B. Claims by clothing outworkers for unpaid wages and super 400C. Liability of apparent employer for unpaid wages and super 400D. Liability of referred employer for unpaid wages 400E. Reimbursement of apparent or referred employer 400F. Recovery of unpaid wages 400G. Offences relating to claims under this division 400H. Effect of ss 400B-400G 400I. Mandatory code of practice for outworkers Division 4--Wages in rural and mining industries 401. Wages recoverable against mortgagee if mortgagor defaults 402. Distress warrant levied on property of mortgagor or mortgagee 403. Application of ss 401 and 402 to mines 404. Priority in payment of wages earned in mine Division 5--Occupational superannuation 406. Contributing occupational superannuation 407. Power to order contribution to particular fund 408. Recovery of unpaid superannuation contribution CHAPTER 11A--FEES CHARGED BY PRIVATE EMPLOYMENT AGENTS 408A. Definitions for ch 11A 408B. Meaning of private employment agent 408C. Meaning of manager 408D. When fees are or are not payable to private employment agent 408E. Magistrate may order repayment of fees received by private employment agent in criminal proceedings 408F. Commission may order repayment of fees received by private employment agent 408G. Magistrate may order repayment of fees received by private employment agent in civil proceedings 408H. Enforcement of magistrate's orders CHAPTER 12--INDUSTRIAL ORGANISATIONS Part 1--Preliminary 409. Definitions for ch 12 410. Meaning of corporation for ch 12 411. Meaning of counterpart federal body for ch 12 412. Meaning of office for ch 12 Part 2--Registration Division 1--Registration applications 413. Application is to commission 414. Who may apply 415. General requirements for applications 416. Additional requirements for employee organisation application 417. Additional requirements for employer organisation applications Division 2--Hearing of registration applications 418. Right to object 419. Registration criteria for all applications 420. Additional criteria for registration as employee organisation 421. Additional criteria for registration as employer organisation Division 3--Grant of application 422. Grant of application 423. Incorporation on registration if not already incorporated Division 4--Registered name and office 424. Registered name of organisation that is not a corporation 425. Registered office Division 5--Miscellaneous 426. Registrar's functions for register and rules 427. Change of callings Part 3--General contents of rules Division 1--Requirement to have rules 428. Organisation must have complying rules Division 2--General requirements for contents 429. Requirements for all organisations 430. Additional requirements for organisation that is not a corporation 431. Rules must give conditions for loans, grants and donations Division 3--Permitted contents 432. Permitted contents—general 433. Filling casual vacancies 434. Mortality benefit fund Division 4--Restrictions on contents 435. General restrictions 436. Maximum office term for organisation that is not a corporation Part 4--Election rules Division 1--Preliminary 437. Part does not apply to corporations 438. Meaning of direct voting system for pt 4 439. Meaning of collegiate electoral system for pt 4 Division 2--General requirements 440. General requirement of transparency 441. Rules must provide for elections 442. Direct voting or collegiate electoral system must be used Division 3--Direct voting systems Subdivision 1--Preliminary 443. Application of div 3 Subdivision 2--Requirements for direct voting systems 444. General requirements for direct voting system 445. Required contents—ballots 446. Compulsory voting permitted Subdivision 3--Alternative types of secret ballot 447. Approval application 448. Consideration of application 449. Grant of approval 450. Cancellation of approval Division 4--Collegiate electoral systems Subdivision 1--Preliminary 451. Application of div 4 Subdivision 2--Requirements for collegiate electoral systems 452. Restriction on persons who may be elected by electoral college 453. Requirements for second or subsequent stage Division 5--Model election rules 454. Model election rules 455. Model election rules may be adopted 456. Adoption without change 457. Effect of adoption without change 458. Model rules apply if election rules do not comply with pt 4 Part 5--Validity and compliance with rules 459. Powers of court 460. Who may apply 461. Financial help for application 462. Interim orders 463. Hearing application 464. Effect of declaration 465. Direction must be complied with Part 6--Amendment of rules Division 1--Amendments by commission or registrar 466. Breach of demarcation dispute undertaking 467. When registrar may amend rules 468. Amendment to cure noncompliance if rule declared void 469. How amendment must be made Division 2--Amendments by organisation Subdivision 1--Name or eligibility rule amendments 470. Application of sdiv 1 471. Requirements for amendment 472. Approval to change 'union' to 'organisation' in name 473. Approval for other name amendment 474. Approval for eligibility rule amendment 475. When amendment takes effect 476. Registrar must record amendment Subdivision 2--Other rule amendments 477. Application of sdiv 2 478. When amendment may be made 479. When amendment takes effect Part 7--Conduct of elections Division 1--Preliminary 480. Part does not apply to corporations Division 2--Preparatory steps 481. Organisation or branch must file prescribed election information 482. Registrar must arrange for elections Division 3--Conduct of elections 483. Electoral commission to conduct elections 484. Organisation's rules generally to be complied with 485. Action or directions by electoral officer 486. Substitute electoral officer 487. Death of candidate 488. Election result report 489. Election costs to be paid by State 490. Ballot records must be preserved Division 4--Offences about conduct of elections 491. Using organisation's resources for election purposes 492. Obstructing conduct of election 493. Failing to comply with electoral officer's direction 494. Obstructing electoral officer's direction 495. Offences about ballots 496. Disadvantaging candidates etc. 497. Unauthorised access to ballot paper Part 8--Election inquiries Division 1--Preliminary 498. Part does not apply to corporations Division 2--Applications and referrals to commission 499. Commission may conduct election inquiry 500. Who may apply 501. Requirements for application 502. Referral to commission Division 3--Investigations and interim orders 503. Commission may authorise registrar to investigate 504. Interim orders 505. Person acting under interim order 506. When interim order ends Division 4--Conduct of election inquiries 507. Commission's functions and powers for inquiry 508. Orders if irregularity found 509. Enforcing pt 8 orders Division 5--Offences about election inquiries 510. Disadvantaging applicant for inquiry 511. Obstructing orders being carried out Division 6--Miscellaneous 512. Financial help for application 513. Costs of fresh election ordered by inquiry Part 9--Officers Division 1--Preliminary 514. Definitions for pt 9 515. Meaning of convicted person for pt 9 Division 2--Disqualifications from candidature or holding office Subdivision 1--Disqualifications 516. Persons under 18 517. Convicted persons—candidature 518. Convicted persons—holding office Subdivision 2--Applications for leave to hold office 519. Prospective candidates 520. Existing office holders 521. Consideration of leave applications 522. Disqualification period may be given if leave refused 523. Leave or fixing of disqualification period does not affect div 2 Subdivision 3--Miscellaneous 524. Declaration about eligibility or ceasing to hold office 525. Certificate evidence for div 2 Division 3--Officers' financial management duties 526. Application of div 3 527. Duty of honesty 528. Duty of reasonable care and diligence 529. Officers with material personal interests 530. Other duties not affected Part 10--Membership Division 1--Eligibility and admission to membership 531. Eligibility 532. Obligation to admit 533. Obligation to give union card 534. Members under 18 Division 2--Membership disputes 535. Court may decide 536. Deciding application Division 3--Membership subscriptions 537. Obligation to give receipt Division 4--Resignation 538. Division applies despite rules 539. Resignation 540. Resignation if membership subscription unpaid for 2 years Division 5--Liabilities of member to organisation 541. Meaning of member's liability for div 5 542. Recovering member's liabilities 543. Limit on liability after resignation Part 11--Registers 544. Members and officers registers 545. Requirements for members register 546. Officers register—required particulars 547. Annual obligation to file officers register 548. Obligation to file officers register on change of office holder 549. Inspection of registers 550. Registrar's directions about registers Part 12--Accounts and audit Division 1--Preliminary 551. Definitions for pt 12 552. Meaning of financial year for pt 12 553. Part applies to branches with separate financial affairs Division 2--Accounting obligations 554. Obligation to keep accounting records 555. Obligation to prepare accounts 556. Member may apply for prescribed information 557. Registrar's directions about accounts and accounting records Division 3--Audits 558. Obligation to have auditor 559. How auditor may be removed 560. Requirements for audit report 561. Audit report must not be knowingly false or misleading 562. Auditor must notify registrar of contravention 563. Auditor's powers 564. Auditors have qualified privilege Division 4--Presentation and filing of audit reports 565. Obligation to present to general or committee meeting 566. Obligation to publish audit report and accounts 567. Notice of meetings to auditor 568. Auditor may attend meetings 569. False or misleading statements about reports 570. Report and accounts must be filed Division 5--Registrar's investigations and audits 571. Registrar's investigations 572. Registrar's directions for investigation 573. Notice of contravention to organisation 574. Court may order compliance with notice 575. Registrar's examinations and audits 576. Powers of registrar's auditor 577. Costs of examination and audit by registrar's auditor Division 6--Loans, grants and donations 578. Obligation to file details of loans, grants and donations 579. Member may inspect statement Part 13--Exemptions Division 1--Exemptions for organisations with counterpart federal bodies Subdivision 1--Exemption from holding election 580. Exemption if federal election held 581. Obligation to notify change in federal election result Subdivision 2--Exemption from keeping members or officers register 582. Exemption 583. Effect of exemption 584. Obligation to file copy of federal officers register 585. Obligation to give notice of change or contravention Subdivision 3--Exemption from accounting or audit provisions 586. Who may apply 587. Grant of exemption 588. Obligation to file copies of federal audit documents 589. Obligation to give notice of change or contravention Division 2--Exemption from accounting or audit obligations for employer organisations that are corporations 590. Who may apply 591. Grant of exemption 592. Obligation to file copies of reports under other Act or law 593. Obligation to notify registrar of contravention of other law Division 3--Exemptions from requirement that electoral commission conduct election Subdivision 1--Grant of exemption 594. Who may apply 595. Requirements for application 596. Publication of application 597. Hearing application Subdivision 2--Obligations if exemption granted 598. Application of sdiv 2 599. Obligation to appoint returning officer 600. Election result report 601. Ballot records must be preserved Division 4--Cancellation of exemptions 602. Cancellation grounds 603. Alternatives to cancellation for federal election exemption Part 14--Validations Division 1--Preliminary 604. Definitions for pt 14 Division 2--Validations 605. Limitation on validations if substantial injustice 606. Validation of certain acts done in good faith 607. Certain acts by person purporting to act in an office 608. Election not invalid because of compliance with order 609. Election not invalid because of contravention of pt 13, div 3, sdiv 2 610. Validation of certain events after 4 years 611. Counterpart federal body not a ground for challenge 612. Amalgamations and withdrawals Division 3--Orders about invalidity or its effects 613. Commission may decide 614. Who may apply 615. Orders about effects of invalidity Part 15--Amalgamations and withdrawals Division 1--Preliminary 616. Definitions for pt 15 Division 2--Amalgamations 617. Amalgamation permitted only under div 2 618. Commission to approve proposed amalgamation 619. Additional regulation-making powers for amalgamations 620. Effect of amalgamation 621. Holding office after amalgamation Division 3--Withdrawing from amalgamation 622. Requirements for withdrawal 623. Commission to approve proposed withdrawal 624. Additional regulation-making powers for withdrawals 625. Registration of constituent part on withdrawal 626. Members of constituent part may join newly registered organisation Division 4--Offences about amalgamation or withdrawal ballots 627. Obstructing conduct of ballot 628. Offences about ballots 629. Disadvantaging another to induce vote or omission to vote 630. Unauthorised access to ballot paper Division 5--Miscellaneous 631. Using resources for proposed amalgamation 632. Costs of ballot conducted by electoral commission 633. No action for defamation in certain cases 634. Commission may resolve difficulties 635. Registration of property transferred under pt 15 636. Part applies despite laws or instruments Part 16--Deregistration Division 1--Preliminary 637. Definitions for pt 16 Division 2--General deregistration provisions Subdivision 1--Bringing deregistration proceedings 638. General deregistration grounds 639. Who may bring deregistration proceedings Subdivision 2--Deciding deregistration proceedings 640. Hearing on ground other than industrial conduct 641. Hearing on industrial conduct ground 642. Deferral of deregistration for industrial conduct 643. When deferral order ends 644. Incidental orders or directions Division 3--Small organisations 645. Commission may review 646. Deregistration proceedings by commission 647. Deciding proceedings Division 4--Effects of deregistration 648. Application and purpose of div 4 649. When deregistration takes effect 650. Effect on corporate status 651. No release of liabilities 652. Effect on property 653. Effect on certain instruments Part 17--Miscellaneous 654. Hearing to be given before making decision 655. Notice of registrar's decisions 656. Falsely obtaining organisation's property 657. Wrongfully applying organisation's property CHAPTER 13--OFFENCES 659. Disobeying penalty orders 660. Improper conduct towards member, magistrate or registrar 661. Contempt by witness 662. False or misleading statements 663. False or misleading documents 664. Obstructing officers 665. Avoiding Act's obligations 666. Nonpayment of wages 667. Accepting reduced wages 668. Publishing statement about employment on reduced wages 669. Offence to offer or accept premiums 670. Contraventions of industrial instruments 671. Injunction restraining contraventions 672. Persons considered parties to offences 673. Executive officers must ensure corporation complies with ss 138, 368, 406 and 666 674. Attempt to commit offence 675. References to making false or misleading statements 676. References to engaging in conduct CHAPTER 14--LEGAL PROCEEDINGS 677. General application of jurisdictional provisions 678. Evidentiary provisions affecting proceedings 679. Confidential material tendered in evidence 680. Evidentiary value of official records 681. Proof of certain facts by statement 682. Evidentiary value of certificate of trustee of superannuation fund 683. Offence proceedings generally 684. Organisations may start proceedings 685. Recovering amounts from organisations CHAPTER 15--EMPLOYEES IN EMPLOYMENT OF STATE 686. Application of Act to State 687. Conflict between industrial instruments etc. and statutory decision 688. Protection of public property and officers 689. Ambit of reference to State 690. Representation of public sector units 691. Industrial cause affecting diverse employees CHAPTER 17--GENERAL 694. Employees working in and outside State 695. Student's work permit 696. Aged or infirm persons permits 697. Copy of award and certified agreement to be displayed 698. Incorporating amendments in awards, certified agreements or orders 699. Obsolete industrial instrument 700. Certificate of employment on termination 701. False pretences relating to employment 702. Protection from liability 703. Payments to financially distressed 704. Notices and applications to be written 705. Inaccurate descriptions 706. Confidentiality of information 707. Application of Act generally 708. Approved forms 709. Regulation-making power CHAPTER 18--SAVINGS AND REPEALS 710. Savings 712. Repeals CHAPTER 19--SAVING AND TRANSITIONAL PROVISIONS FOR INDUSTRIAL RELATIONS ACT 1999 Part 1--Existing industrial agreements 713. Existing industrial agreement continues 714. Industrial agreement displaced by QWA Part 2--Existing certified agreements 715. New termination provisions for existing certified agreements 716. EFAs that prevail over certified agreements 717. Certified agreements that prevail over EFAs Part 3--Existing EFAs 718. Existing EFA continues 719. EFA displaced by QWA and determination Part 4--Unlawful dismissals 720. Dismissals before commencement of this section Part 5--Representation rights of employee organisations 721. Applications under the repealed Act, s 293 Part 6--References and appointments 722. References to repealed Act or IO Act 723. Appointments continue Part 7--VETE orders and determinations 724. Proceedings commenced under the Vocational Education, Training and Employment Act 1991 725. Orders and determinations under the Vocational Education, Training and Employment Act 1991 Part 8--Organisations 726. Organisations with dual corporate status 727. Continued registration of organisations 728. Applications for exemption from membership of an organisation 729. Amalgamations 730. Withdrawals from amalgamation 731. Election and ballot expenses 732. Political objects funds CHAPTER 20--OTHER TRANSITIONAL PROVISIONS Part 1--Transitional provision for Industrial Relations Amendment Act 2002 733. Transitional provision for 2002 amendment Act Part 2--Transitional provision for Vocational Education, Training and Employment Amendment Act 2005 734. Continuation of decisions made by approving authority Part 3--2005 amendment Act 735. Definition for part 736. Continuity of service 737. Dismissals Part 4--Transitional provision for Workers' Compensation and Rehabilitation and Other Acts Amendment Act 2005 738. Dismissal of injured employee Part 5--Transitional provision for Child Employment Act 2006 739. Provision for agreed extensions of parental leave Part 6--Transitional provisions for Industrial Relations Act and Other Legislation Amendment Act 2007 740. Certification of agreements 741. Appointment as members 742. Appointments by industrial gazette notice 743. Appeals to Court of Appeal from full bench Part 7--Transitional provisions for Local Government and Industrial Relations Amendment Act 2008, part 3 Division 1--Preliminary 744. Application of pt 7 745. Definitions for pt 7 746. Interpretation Division 2--Provisions for federal instruments 747. Provision for original awards 748. Provision for pre-reform certified agreements 749. Provision for Australian workplace agreements and pre-reform AWAs 750. Provision for union collective agreements 751. Provision for employee collective agreements 752. Provision for notional agreements preserving State awards Division 3--General 753. Preservation of existing entitlements 754. Organisations bound by substitute State instruments 755. Provisions for minimum entitlements Part 8--Transitional provision for Industrial Relations Amendment Act 2009 756. Delegations by vice president Part 9--Transitional provisions for Electrical Safety and Other Legislation Amendment Act 2009 757. Definition for pt 9 758. Matters published in industrial gazette 759. Effect of regulation and tribunals rules amendment SCHEDULE 1 -- INDUSTRIAL MATTERS SCHEDULE 2 -- APPOINTMENTS Part 1--President, vice president, deputy presidents and commissioners 1. Remuneration 2. Benefits—Judges (Pensions and Long Leave) Act 1957 3. Benefits—Superannuation (State Public Sector) Act 1990 4. Leave under the pensions Act 4A. Other leave 4B. Other terms and conditions Part 1A--Associates 4C. Appointment conditions Part 2--Registrar 5. Preservation of registrar's rights if a public service officer 6. Leave of absence of registrar 7. Resignation of registrar Part 3--Inspectors 8. Appointment conditions 9. Limitation on powers 10. Identity cards SCHEDULE 3 -- MINIMUM REDUNDANCY PAYMENT SCHEDULE 5 -- DICTIONARY Endnotes - LONG TITLE An Act relating to industrial relations in Queensland, and for other purposes 1 Short title This Act may be cited as the Industrial Relations Act 1999 . 2 Commencement (1) Section 744 commences, or is taken to have commenced, on 1 July 1999. (2) The remaining provisions of this Act commence on a day to be fixed by proclamation. 3 Principal object of this Act The principal object of this Act is to provide a framework for industrial relations that supports economic prosperity and social justice by-- (a) providing for rights and responsibilities that ensure economic advancement and social justice for all employees and employers; and (b) 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 (c) preventing and eliminating discrimination in employment; and (d) ensuring equal remuneration for men and women employees for work of equal or comparable value; and (e) helping balance work and family life; and (f) promoting the effective and efficient operation of enterprises and industries; and (g) ensuring wages and employment conditions provide fair standards in relation to living standards prevailing in the community; and (h) promoting participation in industrial relations by employees and employers; and (i) encouraging responsible representation of employees and employers by democratically run organisations and associations; and (j) promoting and facilitating the regulation of employment by awards and agreements; and (k) meeting the needs of emerging labour markets and work patterns; and (l) promoting and facilitating jobs growth, skills acquisition and vocational training through apprenticeships, traineeships and labour market programs; and (m) providing for effective, responsive and accessible support for negotiations and resolution of industrial disputes; and (n) assisting in giving effect to Australia's international obligations in relation to labour standards; and (o) promoting collective bargaining and establishing the primacy of collective agreements over individual agreements. 4 Definitions The dictionary in schedule 5 defines particular words used in this Act. 5 Who is an employee (1) An employee is-- (a) a person employed in a calling on wages or piecework rates; or (b) a person whose usual occupation is that of an employee in a calling; or (c) a person employed in a calling, even though-- (i) the person is working under a contract for labour only, or substantially for labour only; or (ii) the person is a lessee of tools or other implements of production, or of a vehicle used to deliver goods; or (iii) the person owns, wholly or partly, a vehicle used to transport goods or passengers; or (d) a person who is a member of a class of persons declared to be employees under section 275; or (e) each person, being 1 of 4 or more persons who are, or claim to be, partners working in association in a calling or business; or (f) for proceedings for payment or recovery of amounts--a former employee; or (g) an outworker; or (h) an apprentice or trainee. (2) A person who is undertaking a vocational placement within the meaning of the Vocational Education, Training and Employment Act 2000 is not an employee. 6 Who is an employer (1) An employer is-- (a) a person employing, or who usually employs, 1 or more employees, for the person or someone else; or (b) for employees employed in a department of government--the chief executive of that department. (2) The following persons are also employers-- (a) a person carrying on a calling in which employees are usually employed, even though for the time being employees are not employed in it; (b) a person who is managing director, manager, secretary or member of the managing body (however called) of a corporation, partnership, firm or association of persons; (c) if 4 or more persons are, or claim to be, partners working in association in a calling or business--the partnership firm constituted, or claimed to be constituted, by the persons; (d) a group training organisation or labour hire agency that arranges for an employee (who is a party to a contract of service with the organisation or agency) to do work for someone else, even though the employee is working for the other person under an arrangement between the organisation or agency and the other person; (e) for proceedings for an offence or for payment or recovery of amounts--a former employer; (f) a person for whose calling or business an outworker works; (g) a person declared to be an employer under section 275. (3) In this section-- labour hire agency means an entity that conducts a business that includes the supply of services of employees to others. 7 What is an industrial matter (1) An industrial matter is a matter that affects or relates to-- (a) work done or to be done; or (b) the privileges, rights or functions of-- (i) employers or employees; or (ii) persons who have been, or propose to be, or who may become, employers or employees; or (c) a matter (whether or not an industrial matter as defined in this section) that the court or commission considers has been, is, or may be a cause or contributory cause of an industrial action or industrial dispute. (2) However, a matter is not an industrial matter if it is the subject of proceedings for an indictable offence. (3) Without limiting subsection (1) or affecting subsection (2), a matter is an industrial matter if it relates to a matter mentioned in schedule 1. 8 Provisions about appointments and procedures Schedule 2 contains provisions about-- (a) the president, vice president, deputy presidents and commissioners; and (b) the registrar; and (c) inspectors; and (d) associates. 8A Minimum wage (1) An employee is entitled to a wage that is not less than the Queensland minimum wage declared by the full bench's general ruling under section 287. (2) This section does not apply to an employee who is excluded from the operation of the general ruling under section 287(5). 8B Wage structuring to develop employee skills (1) An employer must, if it is appropriate to the employer's industry and the calling or callings of the employer's employees, structure the employees' wages in a way that encourages the development of the employees' skills. (2) If, after completing an apprenticeship in a trade, an employee works in the trade, the employee must be paid at least the minimum rate payable under the award or federal award applying to the trade. 8C Pay and conditions for workers working from home etc. and not covered by award or federal award (1) This section applies to a person-- (a) who is, for someone else's calling or business, engaged in or about a private residence or other premises that are not business or commercial premises; and (b) who, when so engaged, is not a person to whom an award or federal award applies. (2) The pay and conditions of the person must be fair and reasonable when compared with the pay and conditions of employees who perform the same kind of work at an employer's business or commercial premises under an award or federal award. 9 Working time for an employee under an industrial instrument made on or before 1 September 2005 etc. (1) This section applies to an employee under an industrial instrument, other than a certified agreement if the application to certify the agreement was made after 1 September 2005. (2) The periods for which an employee is required to work must not exceed-- (a) 6 days in any 7 consecutive days; or (b) 40 hours in any 6 consecutive days; or (c) 8 hours in any day. (3) An employee must be paid overtime at the rate of at least-- (a) for a calling in which more than 1 shift is worked in a day-- double time; and (b) for another calling--time and a half. (4) 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. (5) 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. (6) The rest pause-- (a) is part of the employee's working time; and (b) if continuity of work is necessary--must be taken when it does not interfere with continuity. (7) This section does not apply if an industrial instrument provides otherwise. (8) In this section-- overtime means time worked-- (a) outside any of the periods mentioned in subsection (2); or (b) before or after the fixed or recognised times of starting or finishing work on a day in a calling. 9A Working time for an employee under an industrial instrument made after 1 September 2005 etc. (1) This section applies to an employee under any of the following instruments, unless the instrument provides otherwise-- (a) an industrial instrument made after 1 September 2005, other than a certified agreement if the application to certify the agreement was made on or before 1 September 2005; (b) a federal award made or varied after 1 September 2005; (c) a federal agreement made, varied or approved after 1 September 2005, other than a federal agreement if the application to certify the agreement was made on or before 1 September 2005. (2) The periods for which the employee is required to work must not exceed-- (a) 6 days in any 7 consecutive days; or (b) 38 hours in any 6 consecutive days; or (c) 7.6 hours in any day. (3) The employee must be paid overtime at the rate of at least-- (a) for a calling in which more than 1 shift is worked in a day-- double time; and (b) for another calling--time and a half. (4) If the employee is paid at a higher rate than the minimum rate provided for in the relevant instrument mentioned in subsection (1), the overtime rate must be worked out on the higher rate. (5) If practicable, the employee is entitled to a rest pause of at least 10 minutes in each 4 hours of working time on a day. (6) The rest pause-- (a) is part of the employee's working time; and (b) if continuity of work is necessary--must be taken when it does not interfere with continuity. (7) If the employee is required to work for more than 5 hours, the employee is entitled to an unpaid meal break of at least 30 minutes after the end of the fourth hour of work and before the start of the sixth hour of work. (8) If the employee is required to work in a way that is contrary to subsection (7), the employee is entitled to be paid at a rate that is double the rate the employee would have been entitled to for the 30 minutes of work. (9) If the employee performs shift work, the employee must be paid as follows-- (a) for ordinary time worked on Monday, Tuesday, Wednesday, Thursday or Friday-- (i) for afternoon shift work--at least 12.5% more than the ordinary rate applicable to the employee; or (ii) for night shift work--at least 15% more than the ordinary rate applicable to the employee; (b) for ordinary time worked on Saturday--at least 25% more than the ordinary rate applicable to the employee; (c) for ordinary time worked on Sunday--at least 50% more than the ordinary rate applicable to the employee. (10) If the employee's ordinary time includes working between midnight Friday and midnight Sunday, other than as part of performing shift work, the employee is entitled to be paid the following-- (a) for ordinary time worked between midnight Friday and midnight Saturday--at least 25% more than the ordinary rate applicable to the employee; (b) for ordinary time worked between midnight Saturday and midnight Sunday--at least 50% more than the ordinary rate applicable to the employee. (11) Without limiting the application of this section to a casual employee, if the employee is a casual employee, the employee is entitled to be paid the following-- (a) for time other than overtime--an ordinary rate that is at least 123% of the ordinary rate for a permanent employee for the work performed, worked out on an hourly basis; (b) for overtime--at least at the relevant overtime rate specified in subsection (3) worked out on the ordinary rate for the casual employee as specified in paragraph (a). (12) In this section-- afternoon shift work means all work performed as part of a shift that finishes after 6.00p.m. and at or before midnight, if the majority of hours for the shift are between 6.00p.m. and midnight. night shift work means all work performed as part of either of the following-- (a) a shift finishing after midnight and at or before 8.00a.m.; (b) a shift if the majority of hours for the shift are between midnight and 8.00a.m. overtime means time worked-- (a) outside any period mentioned in subsection (2); or (b) before or after the fixed or recognised times of starting or finishing work on a day in a calling. shift work means a system in which employees perform ordinary hours of work in separate shifts. 10 Entitlement (1) This section does not apply to-- (a) casual employees; or (b) pieceworkers; or (c) school-based apprentices or trainees. (2) An employee is entitled to-- (a) at least 8 days sick leave on full pay for each completed year of employment with an employer; and (b) for each completed period of employment of less than a year--at least 1 day's sick leave on full pay for each completed 6 weeks of employment with an employer. (3) However, the employee's entitlement is conditional on-- (a) the employee promptly notifying the employer of-- (i) any illness that will cause the employee to be absent from work; and (ii) the approximate period for which the employee will be absent; and (b) if the employee is absent for more than 2 days-- (i) the employee giving the employer a doctor's certificate about the nature of the illness and the approximate period for which the employee will be absent; or (ii) the employee giving the employer other evidence of the illness to the employer's satisfaction. (4) Subsection (3) does not apply if-- (a) an industrial instrument provides otherwise; or (b) the employee and employer agree otherwise. (5) Sick leave may be taken for part of a day. Examples-- 1 An employee is ordinarily required to work for 8 hours on a particular day and on that day becomes sick after working 3 hours. The employee may take sick leave for the remaining 5 hours that the employee is unable to work because of the sickness. 2 An employee is ordinarily required to perform work for 40 hours a week over 5 days, but has come to an arrangement with the employer to work 10 hours a day for 4 days a week. If the employee is unable to work because of sickness on a day, the employee may take 10 hours sick leave, which equates to 11/4 days sick leave. (6) Sick leave accumulates, unless an industrial instrument provides otherwise. (7) This section does not operate to confer an entitlement or an additional entitlement in relation to employment before the commencement of this section. (8) In subsections (2) and (5)-- day, for an employee who is paid on the basis of the number of hours worked, means-- (a) for an employee for whom an industrial instrument provides sick leave--a day within the meaning of the industrial instrument so far as it relates to sick leave; or (b) otherwise--one-fifth of the number of ordinary hours that the employee would ordinarily have been required to work in a week, averaged over each completed 6 weeks of employment with the employer. 11 Entitlement (1) This section does not apply to-- (a) casual employees; or (b) pieceworkers; or (c) school-based apprentices or trainees. (2) For each completed year of employment with an employer, an employee is entitled to-- (a) if the employee is not a shift worker--at least 4 weeks annual leave; or (b) if the employee is a shift worker--at least 5 weeks annual leave. (3) Annual leave is exclusive of a public holiday that falls during the leave. (4) However, if an employee is entitled to additional annual leave as compensation for working on a particular public holiday, annual leave is inclusive of the particular public holiday. (5) In working out a completed year of employment, the following periods when an employee is absent without pay are not to be taken into account-- (a) a period of more than 3 months when an employee is absent with the employer's approval; (b) a period when an employee is absent without the employer's approval, unless the employee is absent for not more than 3 months because of illness or injury certified to by a doctor. (6) This section does not operate to confer an entitlement or an additional entitlement in relation to employment before the commencement of this section. (7) Annual leave accumulates, unless an industrial instrument provides otherwise. (8) In this section-- shift worker means an employee who-- (a) is employed in a calling in which shifts are worked 24 hours a day, 7 days a week; and (b) works a rotating roster that includes each of the shifts. 12 Taking annual leave (1) An employee and employer may agree when the employee is to take annual leave. (2) If the employee and employer can not agree, the employer-- (a) may decide when the employee is to take leave; and (b) must give the employee at least 14 days written notice of the starting date of the leave. (3) An employee and employer may agree that the employee take all or any part of the employee's annual leave before becoming entitled to it. (4) If the employee takes leave before becoming entitled to it, the employee is only entitled, at the end of the completed year of employment, to the balance of the leave that would be due at the end of the year. 13 Payment for annual leave (1) Unless an employee and employer otherwise agree, the employer must pay the employee for annual leave in advance. (2) The employer must pay for the leave-- (a) at the ordinary rate being paid to the employee immediately before the leave is taken; or (b) if, immediately before taking the leave, the employee is being paid at a higher rate than the ordinary rate--at the higher rate. (3) If an employee is entitled to receive an amount representing commission in the employee's annual leave payment, the employer must pay the default average commission unless-- (a) a relevant industrial instrument or contract between the employer and employee otherwise provides; or (b) the commission, on application, considers that the default average commission would not represent a fair amount in the circumstances. (4) If, on application under subsection (3)(b), the commission considers that the default average commission would not represent a fair amount in the circumstances, the commission may make the order it considers appropriate in the circumstances. (5) In this section-- default average commission means-- * the total commissions payable to the employee in the 1 year before the leave is taken, or during the employee's period of employment, whichever is less * divided by 365.25, or the number of days in the employee's period of employment, whichever is less • multiplied by the number of days starting on the day the leave commences and ending on the day before the employee is due to return to work. 13A Annual leave loading (1) This section applies to an employee under any of the following instruments, unless the instrument provides otherwise-- (a) an industrial instrument made after 1 September 2005, other than a certified agreement if the application to certify the agreement was made on or before 1 September 2005; (b) a federal award made or varied after 1 September 2005; (c) a federal agreement made, varied or approved after 1 September 2005, other than a federal agreement if the application to certify the agreement was made on or before 1 September 2005. (2) In addition to the employee's annual leave entitlement under this division, the employee is entitled to receive a further amount of at least 17% of the amount payable under section 13(2)(a). (3) However, if the employee's employer pays the employee an amount (however the amount is described, including, for example, an annual leave bonus or annual leave loading) in addition to the employee's annual leave entitlement under this division and that amount-- (a) is less than 17% of the amount payable under section 13(2)(a)-- the employee is entitled to receive a further amount so that the employee receives the amount the employee is entitled to under subsection (2); or (b) is at least 17% of the amount payable under section 13(2)(a)--the employee is not entitled to receive an amount under subsection (2). 14 Payment for annual leave on termination of employment (1) This section applies if an employee's employment is terminated by the employee or employer. (2) If the employee has not taken all the annual leave the employee is entitled to, the employee is presumed to have taken the leave from the day the termination takes effect (the termination day). (3) The employer must immediately pay the employee for the annual leave not taken, including any public holiday that falls in the period the employee is presumed to have taken the leave. (4) If the employee has been employed for any period of less than 1 year, the employer must pay the employee proportionate annual leave for the period. (5) The employer must pay the employee at least the ordinary rate being paid to the employee immediately before the termination day, unless an industrial instrument states otherwise. 14A Jury service leave (1) This section applies to an employee under any of the following instruments, unless the instrument provides otherwise-- (a) an industrial instrument made after 1 September 2005, other than a certified agreement if the application to certify the agreement was made on or before 1 September 2005; (b) a federal award made or varied after 1 September 2005; (c) a federal agreement made, varied or approved after 1 September 2005, other than a federal agreement if the application to certify the agreement was made on or before 1 September 2005. (2) If the employee is required to attend for jury service, the employee-- (a) is entitled to take jury service leave; and (b) must, as soon as is practicable, tell the employer about the requirement to attend for jury service and the period the employee is required to perform jury service. (3) If the employee is given a document relating to jury service, the employee must give the document, or a copy of it, to the employer. (4) For the period of jury service leave, the employer must pay the employee the difference between the following-- (a) the amount stated in the document relating to jury service, or the copy, as the amount received as remuneration and allowances, other than meal allowances; (b) the ordinary rate the employee would have been paid if the employee had not taken jury service leave. (5) The amount payable under subsection (4) must be paid on or before the first pay day that is practicable after the employee gives the employer the employee's document relating to jury service or a copy of it. (6) Also, if the employee is not required to serve on a jury for a day or part of a day after attending for jury service and the employee would ordinarily be working for all or part of the remaining day, the employee must, if practicable, present for work at the earliest reasonable opportunity. (7) In this section-- document relating to jury service, in relation to an employee, means a document stating the employee's attendance under a requirement to attend for jury service, the number of days of attendance and the amount received as remuneration and allowances, other than meal allowances, under the Jury Act 1995. employee does not include a casual employee. jury service leave, in relation to an employee, means leave taken by an employee required to attend for jury service. required to attend for jury service, in relation to an employee, means the employee-- (a) is given a summons under the Jury Act 1995, section 27 requiring the employee to attend for jury service; or (b) is instructed under the Jury Act 1995, section 38 to attend for jury service. 15 Public holidays (1) An employee who would ordinarily be required to work on a day on which a public holiday falls is entitled to full pay for the time the employee would ordinarily have been required to perform work on that day. (2) Subsection (1) applies to an employee whether the employee-- (a) works on the public holiday; or (b) does not work on that day because of the public holiday. (2A) Despite subsection (2), subsection (1) applies to a school-based apprentice or trainee only if the apprentice or trainee works on the public holiday. (3) Subsection (1) does not apply-- (a) to a casual employee or pieceworker; or (b) if the employee is rostered off on the public holiday. (4) If an employee who is bound by a relevant instrument does work on a public holiday, the employer must pay the employee-- (a) for the greater of the hours worked or 4 hours-- (i) if the employee would ordinarily be required to work on a day on which a public holiday falls--at the rate of 1.5 times the hourly rate, in addition to the amount payable under subsection (1); or (ii) if the employee would not ordinarily be required to work on a day on which a public holiday falls--at the rate of double time and a half; or (iii) if the employee is a casual employee--at the rate of double time and a half; and (b) if the employee works outside the employee's ordinary working hours--at double the rate stated in the instrument for that work. (5) Subsections (3) and (4) do not apply if a relevant instrument provides otherwise. (6) Subject to another Act that restricts work or trading hours on particular days of the year, the employee and employer may agree that the employee work on a public holiday at ordinary rates in exchange for another day off on full pay. (7) The commission may confer on an employee an entitlement to extra annual leave on full pay, instead of extra pay, for work on a public holiday. (8) In a district in which a holiday is not appointed for an annual agricultural, horticultural or industrial show, the employee and employer must agree on an ordinary working day that is to be treated as a show holiday for all purposes. (9) An employee, while employed by the 1 employer, is only entitled to leave on full pay for a show holiday once each calendar year. (10) In this section-- double time and a half means 2.5 times the hourly rate. ordinary working day means a day on which the employee would ordinarily be required to perform work. ordinary working hours, for an employee, means the hours between the employee's ordinary starting time and ordinary finishing time under a relevant instrument. relevant instrument means any of the following-- (a) an industrial instrument; (b) a federal award made or varied after 1 September 2005; (c) a federal agreement made, varied or approved after 1 September 2005, other than a federal agreement if the application to certify the agreement was made on or before 1 September 2005. show holiday means-- (a) a public holiday appointed for an annual agricultural, horticultural or industrial show under the Holidays Act 1983, section 4; or (b) for a district in which a public holiday is not appointed for an annual agricultural, horticultural or industrial show--the day agreed on by the employee and employer under subsection (8). 15A Who is a long term casual employee for pt 2 (1) A long term casual employee is a casual employee engaged by a particular employer, on a regular and systematic basis, for several periods of employment during a period of at least 1 year immediately before the employee seeks to access an entitlement under this part. (2) The periods of employment mentioned in subsection (1) include periods before and after the commencement of this section. 16 Who this division does not apply to This division does not apply to-- (a) casual employees, other than long term casual employees; or (b) seasonal employees; or (c) pieceworkers. 17 Definitions for pt 2 In this part-- adoption leave means short adoption leave or long adoption leave. child, for adoption leave, means a child who is under the age of 5 years, but does not include a child who-- (a) has previously lived continuously with the employee for a period of at least 6 months; or (b) is the child or stepchild of the employee or employee's spouse. long adoption leave means leave taken by an employee to enable the employee to be the primary caregiver of an adopted child. long parental leave means-- (a) for a pregnant employee--maternity leave; or (b) for an employee whose spouse gives birth--leave taken by the employee to enable the employee to be the child's primary caregiver. maternity leave means leave that a pregnant employee takes-- (a) for the birth of her child; or (b) to enable her to be the child's primary caregiver. parental leave means long parental leave, short parental leave or adoption leave. parental leave entitlement means the parental leave entitlement mentioned in section 18(2), (3) or (4). short adoption leave means leave taken by an employee at the time of the placement of an adopted child with the employee. short parental leave means leave taken by an employee, in connection with the birth of a child of the employee's spouse, at the time of-- (a) the birth of the child; or (b) the other termination of the pregnancy. short term casual employee means a casual employee, other than a long term casual employee. 18 Entitlement (1) This section details the parental leave entitlement of an employee for-- (a) an employee who is not a long term casual employee and who has had at least 12 months continuous service with the employer; or (b) a long term casual employee. (2) A pregnant employee is entitled to an unbroken period of up to 52 weeks unpaid maternity leave-- (a) for the child's birth; and (b) to be the child's primary caregiver. (3) For the birth of a child of an employee's spouse, the employee is entitled to the following leave-- (a) an unbroken period of up to 1 week's unpaid short parental leave; (b) a further unbroken period of up to 51 weeks unpaid long parental leave. (4) For the adoption of a child, an employee is entitled to the following leave-- (a) an unbroken period of up to 3 weeks unpaid short adoption leave; (b) a further unbroken period of up to 49 weeks unpaid long adoption leave. (5) However, parental leave must not extend-- (a) beyond 1 year after the child was born or adopted; or (b) if an application for an extension of parental leave under section 29A is agreed to--beyond 2 years after the child was born or adopted. (6) In this section-- continuous service means service, including a period of authorised leave or absence, under an unbroken employment contract. 19 Notices and documents--maternity leave (1) This section applies if a pregnant employee wants to take maternity leave. (2) The employee must give the employer-- (a) at least 10 weeks written notice of intention to take the leave; and (b) at least 4 weeks written notice of the dates on which she wants to start and end the leave. (3) The employee must, before starting the leave, give the employer-- (a) a doctor's certificate confirming that she is pregnant and the expected date of birth; and (b) a statutory declaration by the employee stating the period of any parental leave sought by her spouse. 20 Notices and documents--parental leave other than maternity or adoption leave (1) This section applies if an employee wants to take parental leave, other than maternity leave or adoption leave. (2) The employee must give the employer-- (a) for long parental leave--at least 10 weeks written notice of intention to take the leave; and (b) at least 4 weeks written notice of the dates on which the employee wants to start and end the leave. (3) The employee must, before starting the leave, give the employer-- (a) a doctor's certificate confirming that the employee's spouse is pregnant and the expected date of birth; and (b) for long parental leave--a statutory declaration by the employee stating-- (i) the period of any maternity leave sought by the employee's spouse; and (ii) the employee is seeking the leave to be the child's primary caregiver. 21 Notices and documents--adoption leave (1) This section applies if an employee wants to take adoption leave. (2) The employee must give the employer-- (a) for long adoption leave--written notice of any approval to adopt a child at least 10 weeks before the expected date of placement of the child for adoption purposes (the expected placement date); and (b) written notice of the dates on which the employee wants to start and end the leave, as soon as practicable after the employee is notified of the expected placement date but, in any case, at least 14 days before starting the leave. (3) The employee must, before starting the leave, give the employer-- (a) a statement from an adoption agency of the expected placement date; and (b) for long adoption leave--a statutory declaration by the employee stating-- (i) the period of any adoption leave sought by the employee's spouse; and (ii) the employee is seeking the leave to be the child's primary caregiver. (4) In this section-- adoption agency means an agency, body, office or court, authorised by a Commonwealth or State law to perform functions about adoption. 22 Reasons not to give notice or documents (1) An employee does not fail to comply with section 19, 20 or 21 if the failure was caused by-- (a) the child being born, or the pregnancy otherwise terminating, before the expected date of birth; or (b) the child being placed for adoption before the expected placement date; or (c) another reason that was reasonable in the circumstances. (2) However, the employee must give the employer-- (a) notice of the period of the leave within 2 weeks after the birth or placement; and (b) in the case of the birth of a living child--a doctor's certificate stating the date on which the child was born. 23 Notice of change to situation An employee must notify the employer of any change in the information provided under section 19, 20 or 21 within 2 weeks after the change. 24 Continuity of service (1) Parental leave does not break an employee's continuity of service. (2) Parental leave is not to be taken into account in working out the employee's period of service, other than-- (a) to decide the employee's entitlement to a later period of parental leave; or (b) as expressly provided in this Act, an industrial instrument or employment contract. 25 Spouses not to take parental leave at same time (1) An employee is not entitled to parental leave, other than short parental leave or short adoption leave, when his or her spouse is on parental leave. (2) If the employee contravenes subsection (1), the period of parental leave that the employee is entitled to is reduced by the period of leave taken by his or her spouse. 26 Cancelling parental leave (1) Parental leave applied for but not started is automatically cancelled if-- (a) the employee withdraws the application for leave by written notice to the employer; or (b) the pregnancy terminates other than by the birth of a living child; or (c) the placement of the child with the employee for adoption purposes does not proceed. (2) If, while an employee is on parental leave-- (a) the pregnancy terminates other than by the birth of a living child; or (b) the child in relation to whom the employee is on parental leave dies; or (c) the placement of the child with the employee for adoption purposes does not proceed or continue; the employee is entitled to resume work at a time nominated by his or her employer within 2 weeks after the day on which the employee gives his or her employer a written notice stating the employee intends to resume work and the reason for the resumption. (3) This section does not affect an employee's entitlement to special maternity leave or sick leave under section 37. 27 Parental leave with other leave (1) An employee may take any annual leave or long service leave to which the employee is entitled instead of or together with parental leave. (2) However, the total period of leave can not extend beyond the total period allowed under section 18. (3) While the employee is on unpaid parental leave, the employee is not entitled to paid sick leave or other paid leave, unless the employer agrees. (4) In this section-- other paid leave means paid leave authorised by law or by an industrial instrument or employment contract. 28 Interruption of parental leave by return to work (1) An employee and employer may agree that the employee break the period of parental leave by returning to work for the employer, whether on a full-time, part-time or casual basis. (2) The period of parental leave can not be extended by the return to work beyond the total period allowed under section 18. 29 Extending period of parental leave by notice (1) An employee may extend the period of parental leave once only by written notice given to the employer at least 14 days-- (a) before the start of the parental leave; or (b) if the parental leave has been started--before the parental leave ends. (2) The notice must state when the extended period of parental leave ends. (3) The total period of parental leave can not be extended under subsection (1) beyond the total period mentioned in section 18(5)(a). 29A Extending period of parental leave by agreement (1) A pregnant employee entitled to maternity leave under section 18(2), or an employee who is taking maternity leave, may apply to the employer for an extension of the maternity leave for an unbroken period of up to 104 weeks in total. (2) An employee entitled to parental leave for the birth of a child of the employee's spouse under section 18(3), or who is taking parental leave for the birth, may apply to the employer for either or both of the following-- (a) an extension of the short parental leave for an unbroken period of up to 8 weeks in total; (b) an extension of the long parental leave for an unbroken period of up to 96 weeks in total. (3) An employee entitled to parental leave for the adoption of a child under section 18(4), or who is taking adoption leave for the adoption, may apply to the employer for either or both of the following-- (a) an extension of the short adoption leave for an unbroken period of up to 8 weeks in total; (b) an extension of the long adoption leave for an unbroken period of up to 96 weeks in total. (4) An employee may not make more than 1 application under subsection (1), (2) or (3) within any 12 month period, unless the employer agrees. 29B Employee on parental leave may apply to work part-time (1) An employee on parental leave may apply to the employer to return to work on a part-time basis. (2) An employee may not make more than 1 application under this section within any 12 month period, unless the employer agrees. 29C Application for extension or part-time work (1) An application mentioned in section 29A or 29B must-- (a) be in writing; and (b) be made-- (i) for an application for an extension of short parental leave or short adoption leave--at least 2 business days before the leave ends; or (ii) for an application for an extension of maternity leave, long parental leave or long adoption leave--at least 4 weeks before the leave ends; or (iii) for an application to return to work on a part-time basis--at least 7 weeks before the leave ends; and (c) state that it is an application for an extension of parental leave under section 29A or an application to return to work on a part-time basis under section 29B, as appropriate; and (d) state the dates the extension, or return to work on a part-time basis, being applied for is to start and end; and (e) state the impact refusal of the application might have on the employee and the employee's dependants; and (f) be accompanied by a statutory declaration by the employee stating-- (i) for an application for an extension of maternity leave, long parental leave or long adoption leave--the employee is seeking the extension so the employee can continue to be the child's primary caregiver; or (ii) for an application to return to work on a part-time basis--the employee is seeking to work on a part-time basis so the employee can continue to be the child's primary caregiver when not at work. (2) The period in relation to which an application under section 29B may be made can not extend beyond the day the child in relation to whom parental leave was taken is required to be enrolled for compulsory schooling under the Education (General Provisions) Act 2006. (3) A person may apply under section 29A or 29B even if the person started parental leave before the commencement of this section. 29D Employer to give proper consideration to application for extension or part- time work (1) In deciding whether to agree to an application for an extension of the period of parental leave under section 29A or an application to return to work on a part-time basis under section 29B, the employer must consider the following-- (a) the particular circumstances of the employee that give rise to the application, particularly circumstances relating to the employee's role as the child's caregiver; (b) the impact refusal of the application might have on the employee and the employee's dependants; (c) the effect that agreeing to the application would have on the conduct of the employer's business, including, for example-- (i) any additional cost the employer would incur; and (ii) the employer's capacity to reorganise work arrangements; and (iii) the availability of competent replacement staff; and (iv) any loss of efficiency in the conduct of the employer's business; and (v) the impact of the employee's absence or temporary absence on the delivery of customer service. (2) The employer must not unreasonably refuse an application under section 29A or 29B. (3) The employer must advise the employee, in writing, of the employer's decision-- (a) if the application is for an extension of short parental leave or short adoption leave--as soon as possible after receiving the application but before the short parental leave or short adoption leave ends; or (b) for any other application--within 14 days after receiving the application. (4) If the employer refuses the application, the employer must provide the employee with written reasons for refusing the application. 30 Shortening period of parental leave If the employer agrees, an employee may shorten parental leave by written notice given to the employer at least 14 days before the employee wants to return to work. 31 Effect on parental leave of ceasing to be the primary caregiver (1) This section applies if-- (a) during a substantial period starting on or after the start of an employee's long parental leave, the employee is not the child's primary caregiver; and (b) 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 caregiver within a reasonable period. (2) The employer may notify the employee of the day, at least 4 weeks after the employer gives the notice, on which the employee must return to work. (3) If the employee returns to work, the employer must cancel the rest of the leave. 32 Return to work after parental leave etc. (1) This section applies to-- (a) an employee who returns to work after parental leave; or (b) a female employee who returns to work after special maternity leave or sick leave under section 37. (2) The employee is entitled to be employed in-- (a) the position held by the employee immediately before starting parental leave; or (b) if the employee worked part-time because of the pregnancy before starting maternity leave--the position held by the employee immediately before starting part-time work; or (c) if the employee was transferred to a safe job under section 36 before starting maternity leave--the position held by the employee immediately before the transfer. (3) If the position no longer exists but there are other positions available that the employee is qualified for and is capable of performing, the employee is entitled to be employed in a position that is, as nearly as possible, comparable in status and remuneration to that of the employee's former position. (4) An employer must make a position to which an employee is entitled available to the employee. (5) 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. 33 Employer's obligation to advise about parental leave entitlements (1) On becoming aware that an employee or an employee's spouse is pregnant, or that an employee is adopting a child, an employer must inform the employee of-- (a) the employee's entitlement to parental leave under this division; and (b) the employee's obligations to notify the employer of any matter under this division. (2) An employer can not rely on an employee's failure to give a notice or other document required by this division unless the employer establishes that subsection (1) has been complied with. 34 Dismissal because of pregnancy or parental leave (1) An employer must not dismiss an employee because-- (a) the employee or employee's spouse is pregnant or has applied to adopt a child; or (b) the employee or employee's spouse has given birth to a child or adopted a child; or (c) the employee has applied for, or is absent on, parental leave. (2) This section does not affect any other rights of-- (a) an employer to dismiss an employee; or (b) a dismissed employee. 35 Replacement employees (1) The employer must, before a replacement employee starts employment, give the replacement employee a written notice informing the replacement employee of-- (a) the temporary nature of the employment; and (b) the parent's right to return to work. (2) In this section-- replacement employee means-- (a) a person who is specifically employed because an employee (the parent)-- (i) starts parental leave; or (ii) is transferred to a safe job under section 36; or (b) a person replacing an employee who is temporarily promoted or transferred to replace the parent. 36 Transfer to a safe job (1) This section applies whenever 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. (2) The assessment of the risk is to be made on the basis of-- (a) a doctor's certificate given by the employee to the employer; and (b) the employer's obligations under the Workplace Health and Safety Act 1995. (3) The employer must temporarily adjust the employee's working conditions or hours of work to avoid exposure to the risk. (4) If an adjustment is not feasible or can not reasonably be required to be made, the employer must transfer the employee to other appropriate work that-- (a) will not expose her to the risk; and (b) is, as nearly as possible, comparable in status and remuneration to that of her present work. (5) If a transfer is not feasible or can not reasonably be required to be made, the employer must grant the employee maternity leave, or any available paid sick leave, for as long as a doctor certifies it is necessary to avoid exposure to the risk. 37 Special maternity leave and sick leave (1) This section applies if, before an employee starts maternity leave-- (a) the employee's pregnancy terminates before the expected date of birth, other than by the birth of a living child; or (b) the employee suffers illness related to her pregnancy. (2) For as long as a doctor certifies it to be necessary, the employee is entitled to the following types of leave-- (a) unpaid leave (special maternity leave); (b) paid sick leave, either instead of, or as well as, special maternity leave. 38 Special adoption leave An employee who is seeking to adopt a child is entitled to up to 2 days unpaid leave to attend compulsory interviews or examinations as part of the adoption procedure. 38A Employer's obligation to advise about significant change at the workplace (1) This section applies-- (a) if an employer decides to implement significant change at a workplace; and (b) whether or not the decision was made before the commencement of this section if the decision had not been implemented at the commencement. (2) The employer must take reasonable action to advise each employee who is absent from the workplace on parental leave about the proposed change before it is implemented. (3) The advice must inform the employee of the change and any effect it will have on the position the employee held before starting parental leave, including, for example, its status or the level of responsibility attaching to the position. (4) The employer must give the employee a reasonable opportunity to discuss any significant effect the change will have on the employee's position. 38B Employee's obligations to advise employer about particular changes (1) An employee who is absent on parental leave must advise the employer of any change in the employee's contact details, including any change of address. Note-- Advice given under subsection (1) may be used by an employer for section 38A if a need arises to advise the employee about significant change at the workplace. (2) An employee who is absent on parental leave must also take reasonable steps to advise the employer of any significant change affecting the following as soon as possible after the change happens-- (a) the length of the employee's parental leave; (b) the date the employee intends to return to work; (c) an earlier decision to return to work on a full-time basis or to apply to return to work on a part-time basis. 38C Review of ss 29A-29D (1) The full bench must review the operation of sections 29A, 29B, 29C and 29D- - (a) on its own initiative; or (b) on the Minister's direction. (2) In the absence of a direction from the Minister, the full bench must start a review on its own initiative within 3 years after the commencement of this section. (3) In undertaking a review, the full bench must consider, in particular-- (a) whether the sections are meeting the reasonable needs of employees; and (b) the impact the operation of the sections is having on the ability of employers to conduct their businesses efficiently. (4) The full bench must report the result of a review, and make recommendations, to the Minister. 39 Employee's entitlement to carer's leave (1) An employee may use up to 10 days of sick leave on full pay (carer's leave) in each year to care for and support members of the employee's immediate family or household-- (a) when they are ill; or (b) because an unexpected emergency arises. Example for paragraph (b)-- unexpected failure of child care arrangements (2) If the employee has exhausted his or her entitlement under subsection (1), the employee may take up to an additional 2 days unpaid carer's leave each time the employee needs to care for and support members of the employee's immediate family or household-- (a) when they are ill; or (b) because an unexpected emergency arises. (3) The employee may take additional unpaid carer's leave if the employer agrees. (4) An employee can not take carer's leave if another person has taken leave to care for the same person unless there are special circumstances requiring more than 1 person to care for the person. (5) Carer's leave may be taken for part of a day. (6) In this section-- employee does not include casual employee. sick leave includes sick leave accrued before the commencement of this section. 39A Long term casual employee's entitlement to carer's leave (1) A long term casual employee is entitled to 10 days unpaid leave (also carer's leave) in each year to care for and support members of the employee's immediate family or household-- (a) when they are ill; or (b) because an unexpected emergency arises. (2) The long term casual employee may take additional unpaid carer's leave if the employer agrees. (3) A long term casual employee can not take carer's leave if another person has taken leave to care for the same person unless there are special circumstances requiring more than 1 person to care for the person. (4) Carer's leave may be taken for part of a day. (5) The employer must not fail to re-engage a long term casual employee only because the long term casual employee has taken carer's leave under this section. (6) However, the rights of an employer not to re-engage a long term casual employee are not otherwise affected. 39B Short term casual employee's entitlement to carer's leave (1) A short term casual employee is entitled to leave work or to be unavailable to attend work for up to 2 days (also carer's leave) each time the employee needs to care for and support members of the employee's immediate family or household-- (a) when they are ill; or (b) because an unexpected emergency arises; or (c) because of the birth of a child. (2) The short term casual employee may leave work or be unavailable to attend work for reasons mentioned in subsection (1) for additional periods if the employer agrees. (3) A short term casual employee can not take carer's leave if another person has taken leave to care for the same person unless there are special circumstances requiring more than 1 person to care for the person. (4) Carer's leave may be taken for part of a day. (5) The employer must not fail to re-engage a short term casual employee only because the short term casual employee has taken carer's leave under this section. (6) However, the rights of an employer not to re-engage a short term casual employee are not otherwise affected. (7) Leave taken under this section is unpaid. 39C Employees etc. to provide supporting information to employer (1) If an employee is taking carer's leave to care for and support a member of the employee's immediate family or household who is ill, the employee must, if required by the employer, produce a doctor's certificate or statutory declaration evidencing that the member is ill with an illness requiring care by another. (2) An employee must, if practicable, give the employer-- (a) notice of the intention to take carer's leave before taking the leave; and (b) the name of the person requiring care and the person's relationship to the employee; and (c) the reason for taking the leave; and (d) the period that the employee estimates he or she will be absent; and (e) if the reason for taking the leave is because an unexpected emergency has arisen, the nature of the emergency. (3) If it is not practicable for the employee to notify the employer of the intention to take carer's leave before taking the leave, the employee must notify the employer at the first reasonable opportunity. 40 Entitlement (1) This section does not apply to pieceworkers. (2) An employee, other than a long term casual employee or short term casual employee, is entitled to-- (a) at least 2 days bereavement leave on full pay on the death of a member of the person's immediate family or household; and (b) if the employee reasonably requires extra time to travel to and from the funeral or other ceremony for the death--an amount of unpaid bereavement leave equal to the time reasonably required for the travel. (3) A long term casual employee is entitled to-- (a) at least 2 days unpaid bereavement leave on the death of a member of the person's immediate family or household; and (b) if the employee reasonably requires extra time to travel to and from the funeral or other ceremony for the death--an amount of unpaid bereavement leave equal to the time reasonably required for the travel. (4) A short term casual employee is entitled to be unavailable to attend work-- (a) for up to 2 days on unpaid bereavement leave on the death of a member of the person's immediate family or household; and (b) if the employee reasonably requires extra time to travel to and from the funeral or other ceremony for the death--an amount of unpaid bereavement leave equal to the time reasonably required for the travel. (5) The employee must give the employer a copy of the funeral notice or other evidence of the death the employer reasonably requires. (6) An employee may take additional leave as unpaid bereavement leave if the employer agrees. (7) The employer must not fail to re-engage a casual employee only because the casual employee has taken bereavement leave under this section. (8) However, the rights of an employer not to re-engage a casual employee are not otherwise affected. 40A Entitlement (1) An employee may take up to 5 days unpaid cultural leave in each year, if the employer agrees. (2) The employer must not unreasonably refuse the leave. (3) In considering the employee's request for leave, the employer must consider at least the following-- (a) the employer's capacity to reorganise work arrangements to accommodate the employee's request; (b) the impact of the employee's absence on the delivery of customer service; (c) the particular circumstances of the employee; (d) the impact of a refusal on the employee, including the employee's ability to balance his or her work and family responsibilities. (4) The employee must, if practicable, give the employer-- (a) reasonable notice of the intention to take cultural leave before taking the leave; and (b) the reason for taking the leave; and (c) the period that the employee estimates the employee will be absent. (5) If it is not practicable for the employee to give the notice before taking the leave, the employee must give the employer notice of the matters in subsection (4)(b) and (c) at the first opportunity. (6) It is declared that leave provided under this section is a welfare measure for the purposes of the Anti-Discrimination Act 1991, section 104. (7) In this section-- employee means an employee who is required by Aboriginal tradition or Island custom to attend an Aboriginal or Torres Strait Islander ceremony. 41 This part overrides less favourable conditions This part has effect despite-- (a) another law of the State; or (b) an industrial instrument or order; to the extent that the law, instrument or order provides an employee with a benefit that is less favourable to the employee. 42 Definitions for pt 3 In this part-- continuous service of an employee means-- (a) in section 50--the period of continuous service the employee is taken to have had with an employer under section 50(4); and (b) elsewhere--the employee's continuous service with the same employer (whether wholly in the State, or partly in and partly outside the State). owner of a meat works includes a person who carries on the business of the works. period between seasons includes the period between-- (a) the end of 1 season and the start of the next season; and (b) for a particular employee--the day the employee stops employment in 1 season and the day the employee starts employment in the next season. season means a period (whether falling completely in 1 calendar year or partly in 1 calendar year and partly in the next calendar year) when-- (a) for the sugar industry-- (i) sugar cane is delivered to, and crushed at, a sugar mill; or (ii) sugar cane is harvested, or farm work is performed, in the sugar industry; or (b) for a meat works--stock are delivered to, and slaughtered at, the works. 42A Application of pt 6 for particular purposes To remove any doubt, it is declared that the provisions of part 6 are to be applied when working out an employee's rights and entitlements to long service leave under this part or an industrial instrument. 43 Entitlement (1) This section applies to all employees, other than seasonal employees. (2) An employee is entitled to long service leave on full pay of-- (a) for the first 10 years continuous service--8.6667 weeks; and (b) if the employee has completed at least a further 5 years continuous service--another period that bears to 8.6667 weeks the proportion that the employee's further period of continuous service bears to 10 years. (3) An employee who has completed at least 7 years continuous service is entitled to a proportionate payment for long service leave on the termination of the employee's service. (4) However, if the employee's service is terminated before the employee has completed 10 years continuous service, the employee is entitled to a proportionate payment only if-- (a) the employee's service is terminated because of the employee's death; or (b) the employee terminates the service because of-- (i) the employee's illness or incapacity; or (ii) a domestic or other pressing necessity; or (c) the termination is because the employer-- (i) dismisses the employee for a reason other than the employee's conduct, capacity or performance; or (ii) unfairly dismisses the employee; or (d) the termination is because of the effluxion of time and-- (i) the employee had a reasonable expectation that the employment with the employer would continue until the employee had completed at least 10 years continuous service; and (ii) the employee was prepared to continue the employment with the employer. (5) Long service leave is exclusive of a public holiday that falls during the period of the leave. (6) An employee who is entitled to long service leave elsewhere than under this Act, is entitled to leave that is at least as favourable as the entitlement under this section. (7) For the purposes of working out when an employee may take long service leave, only two-thirds of the employee's continuous service completed before the commencement of this subsection counts as continuous service. (8) Subsection (7) does not reduce an entitlement to long service leave that an employee has accrued before subsection (7) commences. Examples of subsections (7) and (8)-- An employee has completed 15 years continuous service immediately before the commencement. The 15 years counts as 10 years continuous service for working out when the employee may take long service leave. The employee may take the leave immediately. The employee's entitlement then is 13 weeks (15 x 0.86667 weeks). An employee has completed 10 years continuous service immediately before the commencement. The 10 years counts as 6.6667 years continuous service for working out when the employee may take long service leave. The employee may take the leave after completing another 3.3333 years continuous service. The employee's entitlement then will be 11.5556 weeks ([10 + 3.3333] x 0.86667 weeks). An employee has completed 1 year continuous service immediately before the commencement. The 1 year counts as 0.6667 years continuous service for working out when the employee may take long service leave. The employee may take the leave after completing another 9.3333 years continuous service. The employee's entitlement then will be 8.9556 weeks ([1 + 9.3333] x 0.86667 weeks). An employee starts employment after the commencement. The employee may take long service leave after completing 10 years continuous service. The employee's entitlement then will be 8.6667 weeks (10 x 0.86667 weeks). (9) In this section-- proportionate payment means a payment equal to the employee's full pay for a period that bears to 8.6667 weeks the proportion that the employee's period of continuous service (stated in years, and a fraction of a year if necessary) bears to 10 years. 44 Working out continuity of service for service before 23 June 1990 (1) This section applies to service of all employees who are not casual employees before 23 June 1990. (2) The repealed Industrial Conciliation and Arbitration Act 1961, sections 17, 18, 19 and 20, applies to-- (a) the determination of the employee's continuous service before 23 June 1990; and (b) the calculation of the employee's entitlement to long service leave in relation to continuous service before 23 June 1990. 45 Taking long service leave (1) The commission may insert in an industrial instrument provisions-- (a) about the time when, the way in which, and the conditions on which, long service leave may be taken; or (b) to the effect that leave in the nature of long service leave taken, before the provisions take effect, by an employee bound by the instrument must be deducted from the long service leave that the employee becomes entitled to under the provisions. (2) An employee and employer may agree when the employee is to take long service leave. (3) If the employee and employer can not agree, the employer may decide when the employee is to take leave by giving the employee at least 3 months written notice of the date on which the employee must take at least 4 weeks long service leave. (4) Subsection (3) applies subject to an industrial instrument. 46 Payment for long service leave (1) The employer must pay the employee for long service leave at the ordinary rate being paid to the employee immediately before the leave is taken. (2) However, if the employee is, immediately before taking the leave, being paid at a higher rate than the ordinary rate, the employer must pay the employee at the higher rate. (3) An employer must not reduce an employee's usual rate, before an employee starts long service leave, with intent to avoid the employer's obligation under subsection (2). (4) If satisfied an employer has done so, the commission may order the employer to pay the employee at the usual rate even though the employee was not being paid the usual rate immediately before starting leave. (5) If, during the employee's leave-- (a) the ordinary rate is increased above the higher rate--the employer must pay the employee at the increased rate for the part of the leave period that the increased rate applies to; or (b) the ordinary rate is reduced--the employer may pay the employee at the reduced rate for the part of the leave period that the reduced rate applies to. (6) If an employee is entitled to receive an amount representing commission in the employee's long service leave payment, the employer must pay the default average commission unless-- (a) a relevant industrial instrument or contract between the employer and employee otherwise provides; or (b) the commission, on application, considers that the default average commission would not represent a fair amount in the circumstances. (7) If, on application under subsection (6)(b), the commission considers that the default average commission would not represent a fair amount in the circumstances, the commission may make the order it considers appropriate in the circumstances. (8) If a dispute arises between an employee who is paid at piecework rates and the employer about the rate the employee should be paid for long service leave, the commission may decide the rate payable. (9) An employee and employer may agree on the times when, and the way in which, the employee will be paid for long service leave. (10) The commission may decide any matter relating to payment for long service leave that the employee and employer can not agree on. (11) An amount payable for long service leave becomes payable at a time agreed between the employee and employer or, if they can not agree, at a time decided by the commission. (12) In this section-- default average commission means-- * the total commissions payable to the employee in the 1 year before the leave is taken * divided by 52.179 * multiplied by the number of weeks leave for which payment is being made. usual rate the rate at which the employee is being paid for ordinary time, being a rate that is higher than the ordinary rate. 47 Continuity of service--additional considerations for casual employees (1) The service of an employee (a casual employee) who is employed more than once by the same employer over a period is continuous service with the employer even though-- (a) the employment is broken; or (b) any of the employment is not full-time employment; or (c) the employee is employed by the employer under 2 or more employment contracts; or (d) the employee would, apart from this section, be taken to be engaged in casual employment; or (e) the employee has engaged in other employment during the period. (2) However, the continuous service ends if the employment is broken by more than 3 months between the end of 1 employment contract and the start of the next employment contract. (3) In working out the length of an employee's continuous service-- (a) the following service must not be taken into account-- (i) service by the employee before 23 June 1990; (ii) if the employee only obtained the entitlement because of the enactment of the repealed Industrial Relations Reform Act 1994, section 17--the employee's service between 23 June 1990 and 30 March 1994; and (b) subject to subsection (2), a period when the employee was not employed by the employer must be taken into account. (4) Subsection (3)(a)(i) does not affect an employee's entitlement to long service leave under-- (a) an award made before 23 June 1990; or (b) the Industrial Conciliation and Arbitration Act 1961. (5) This section does not limit any other entitlement to long service leave that an employee may have. 48 Taking long service leave--alternative provision for casual or regular part- time employees (1) An employer may agree with a casual or regular part-time employee that the entitlement to long service leave may be taken in the form of its full-time equivalent. Example-- If an employee-- (a) is entitled to be paid for 260 hours long service leave; and (b) works under an award that provides for a full-time working week of 40 ordinary working hours; the employee and the employer may agree that the employee take 61/ 2 weeks leave (260 40 = 61/2). (2) This section applies subject to a provision in an industrial instrument about the employee's long service leave. 49 Payment for long service leave (1) This section applies if an employee who is entitled to long service leave was a casual or regular part-time employee at any time during the employee's continuous service to which the long service leave relates. (2) The minimum amount payable to the employee for long service leave is worked out using the formula-- > Example-- An employee who worked 15600 ordinary working hours over a 10 year period and is being paid an hourly rate of $12 is entitled to be paid-- > (7) In this section-- actual service means the total ordinary working hours actually worked by an employee during the employee's period of continuous service. casual employee means an employee mentioned in section 47(1). hourly rate means the hourly rate for ordinary time payable to the employee-- (a) if the employee takes the long service leave--on the day that the employee starts the leave; or (b) if the employee's employment is terminated--on the date that the termination takes effect. 50 Entitlement--employees in sugar industry and meat works (1) This section applies to the following seasonal employees-- (a) an employee employed in seasonal employment in the sugar industry; (b) an employee employed in or about meat works in seasonal employment by the meat works owner. (2) The employee is entitled to long service leave on full pay of at least the number of weeks worked out using the following formula-- > Example-- An employee who worked half of each year, over a 10 year period, is entitled to half the section 43 entitlement, that is, half of 8.6667 weeks leave (8.6667 x 5 = 4.3334). 10 (3) Service with the employer of an employee engaged in harvesting sugar cane or farm work in the sugar industry before 23 June 1990 must not be taken into account in working out the length of the employee's continuous service. (4) A period between seasons when the employee is not employed by the employer must be taken into account in working out the length of an employee's continuous service if-- (a) in 1 season--the employee's service with the employer continued until the end of the season or until an earlier day when the employee's employment was terminated by the employer; and (b) in the next season--the employee's service with the same employer started on the season's opening or on a later day in the season when the employer required the employee to start employment. (5) If an employee is employed by the employer between seasons, the part of the period between seasons when the employee is employed must be taken into account in working out the length of the employee's actual service. (6) An employee who is entitled to long service leave elsewhere than under this Act, is entitled to leave that is at least as favourable as the entitlement under this section. (7) In this section-- actual service means the total ordinary time actually worked by an employee during the employee's period of continuous service. section 43 entitlement means the entitlement to long service leave of an employee under section 43. 51 Taking long service leave--employees in sugar industry and meat works (1) This section applies to the following seasonal employees-- (a) an employee employed in seasonal employment in the sugar industry; (b) an employee employed in or about meat works in seasonal employment by the meat works owner. (2) An employee may take long service leave between seasons. (3) If an employee takes leave between seasons, the leave is taken to have started when the employee last ceased employment with the employer. 52 Other seasonal employees The commission may decide the entitlement to long service leave of an employee- - (a) who is employed in seasonal employment, but who is not employed-- (i) in the sugar industry; or (ii) in or about meat works; or (b) who is employed in other periodic employment that is not defined as casual employment by the relevant industrial instrument. 53 Payment instead of long service leave (1) An employee may be paid for all or part of an entitlement to long service leave instead of taking the leave or part of the leave if subsection (2) or (3) applies. (2) If the relevant industrial instrument provides for the employee to be paid for all or part of an entitlement to long service leave instead of taking the leave or part of the leave, payment may be made, in accordance with the industrial instrument, if the employee and employer agree by a signed agreement. (3) If no industrial instrument provides for the employee to be paid for all or part of an entitlement to long service leave instead of taking the leave or part of the leave, payment may be made only if the payment is ordered by the commission on application by the employee. (4) The commission may order the payment only if satisfied the payment should be made-- (a) on compassionate grounds; or (b) on the ground of financial hardship. (5) Despite section 58(2), the full bench must not make a general ruling that allows an employee to be paid for an entitlement to long service leave instead of taking the leave. (6) In subsection (3)-- employee includes a registered worker under the Building and Construction Industry (Portable Long Service Leave) Act 1991. entitlement to long service leave includes an entitlement to long service leave under the Building and Construction Industry (Portable Long Service Leave) Act 1991, section 57(1). 54 Payment instead of long service leave on death (1) This section applies if an employee entitled to long service leave dies-- (a) before taking the leave; or (b) after starting, but before finishing, the leave. (2) The employer must pay the employee's legal personal representative any amount payable for the employee's entitlement to long service leave that has not been already been paid. (3) If the employer does not do so, the employee's legal personal representative or an inspector may recover the amount as unpaid wages. 55 Continuity not broken by service in Reserve Forces (1) An employee's service in the reserve forces is taken to be continuous service with the employer who employed the employee immediately before the employee starting service with the Forces. (2) In this section-- reserve forces means the Australian Naval Reserve, Australian Army Reserve or Australian Air Force Reserve. 56 Recognition of certain exemptions (1) This part does not apply to an employer if-- (a) the commission has exempted the employer, under the repealed Industrial Conciliation and Arbitration Act 1961, from the application of long service leave provisions in that Act or an award; and (b) the exemption is in force. (2) On application, the commission may revoke an exemption. 57 Person may be employer and employee If in performing duties in a calling a person is an employee, the person is entitled to long service leave as prescribed under this part despite the person being, by definition for this Act, an employer because of-- (a) the person's engagement in the calling; or (b) the position the person holds in the calling. 58 Review of general employment conditions (1) On application by the Minister, an organisation or a State peak council, the full bench may review a condition under this chapter. (2) The full bench may, by a general ruling under section 287, substitute the condition with another condition that is no less favourable. 59 Definition for pt 5 In this part-- equal remuneration for work of equal or comparable value means equal remuneration for men and women employees for work of equal or comparable value. 60 Orders requiring equal remuneration (1) The commission may make any order it considers appropriate to ensure employees covered by the order receive equal remuneration for work of equal or comparable value. (2) An order may provide for an increase in remuneration rates, including minimum rates. 61 Orders only on application The commission may make an order under this part only on application by-- (a) an employee to be covered by the order; or (b) an organisation whose rules entitle it to represent the industrial interests of employees to be covered by the order; or (c) a State peak council; or (d) the Minister; or (e) the anti-discrimination commissioner. 62 When commission must and may only make order The commission must, and may only, make an order if it is satisfied the employees to be covered by the order do not receive equal remuneration for work of equal or comparable value. 63 Immediate or progressive introduction of equal remuneration The order may introduce equal remuneration for work of equal or comparable value-- (a) immediately; or (b) progressively, in specified stages. 64 Employer not to reduce remuneration (1) An employer must not reduce an employee's remuneration because an application or order has been made under this part. (2) If an employer purports to do so, the reduction is of no effect. 65 Part does not limit other rights (1) This part does not limit any right a person or organisation may otherwise have to secure equal remuneration for work of equal or comparable value. (2) Subsection (1) is subject to section 66. 66 Applications under this part (1) An application can not be made under this part for an order to secure equal remuneration for work of equal or comparable value for an employee if proceedings for an alternative remedy-- (a) to secure the remuneration for the employee; or (b) against unequal remuneration for work of equal or comparable value for the employee; have started under another provision of this Act or under another Act. (2) Subsection (1) does not prevent an application under this part if the proceedings for the alternative remedy have-- (a) been discontinued by the party who started the proceedings; or (b) failed for want of jurisdiction. (3) If an application under this part has been made for an order to secure equal remuneration for work of equal or comparable value for an employee, a person is not entitled to start proceedings for an alternative remedy under a provision or Act mentioned in subsection (1)-- (a) to secure the remuneration for the employee; or (b) against unequal remuneration for work of equal or comparable value for the employee. (4) Subsection (3) does not prevent proceedings being started for an alternative remedy if the proceedings under this part have-- (a) been discontinued by the party who started the proceedings; or (b) failed for want of jurisdiction. 67 Definition for pt 6 In this part-- service includes employment. 68 How part applies (1) This part applies when working out an employee's rights and entitlements under this Act or an industrial instrument by prescribing when the employee's continuity of service is not broken. (2) An employee is not entitled to claim the benefit of a right or entitlement more than once for the same period of service. (3) However, when working out the minimum period of notice required to be given under section 84 to a transferred employee, any period of notice previously given in relation to the transfer of the calling (whether given before or after the commencement of this subsection) is to be disregarded. (4) In subsection (3)-- transferred employee see section 69(1). 69 Continuity of service--transfer of calling (1) A transferred employee is a person who becomes an employee of an employer (the new employer) because of the transfer of a calling to the new employer from another employer (the former employer). (2) Even if a person is dismissed by the former employer before the transfer of a calling, the person is taken to be a transferred employee if-- (a) the person is employed by the new employer after the transfer; and (b) the employee-- (i) was dismissed by the former employer within 1 month immediately before the transfer; and (ii) is re-employed by the new employer within 3 months after the dismissal. (3) The transfer of the calling is taken not to break the transferred employee's continuity of service. (4) A period of service with the former employer (including service before the commencement of this section) is taken to be a period of service with the new employer. (4A) In relation to the transfer, the transferred employee is not an employee to whom chapter 3, part 4, division 1AA applies, unless an instrument mentioned in section 85A(1) provides otherwise. (5) In this section-- dismissed includes stood down. 70 Continuity of service--apprentices or trainees (1) This section applies if-- (a) an employee, while employed with the employer, starts an apprenticeship or traineeship; or (b) the employer-- (i) continues to employ an apprentice or trainee (the employee) on the completion of the apprenticeship or traineeship; or (ii) re-employs the employee within 3 months after completion of the employee's apprenticeship or traineeship. (2) The period of the apprenticeship or traineeship does not break the employee's continuity of service. 71 Continuity of service--generally (1) Service with a partnership and an employer who was, or becomes, a member of the partnership is taken to be continuous service with the same employer. (2) An employee's continuity of service with an employer is not broken if the employee's service is temporarily lent or let on hire by the employer to another employer. (3) An employee's continuity of service with an employer is not broken by an absence, including through illness or injury-- (a) on paid leave approved by the employer; or (b) on unpaid leave approved by the employer. (4) An employee's continuity of service with an employer is not broken if-- (a) the employee's employment is terminated by the employer or employee because of illness or injury; and (b) the employer re-employs the employee; and (c) the employee has not been employed in a calling (whether on the employee's own account or as an employee) between the termination and the re-employment. (5) An employee's continuity of service with an employer is not broken if-- (a) the employee's employment is terminated by the employer or employee; and (b) the employer re-employs the employee within 3 months after the termination. (6) An employee's continuity of service with an employer is not broken if-- (a) the employee's employment is interrupted or terminated by the employer with intent to avoid an obligation under this part, an industrial instrument or employment contract; or (b) the employee's employment is interrupted or terminated by the employer as a direct or indirect result of an industrial dispute, and the employer re-employs the employee. (7) An employee's continuity of service is not broken if-- (a) the employee's employment is interrupted or terminated by the employer because of slackness of trade or business; and (b) the employer re-employs the employee. (8) Service with a corporation and any of its subsidiaries is taken to be continuous service with the same employer. (9) However, a period for which the employee is away from work under subsection (3)(b), (4), (5), (6)(b) or (7) is not service under this part unless-- (a) this Act or an industrial instrument provides otherwise; or (b) the commission directs otherwise. (10) In this section-- subsidiary has the meaning given by the Corporations Act. terminate includes stand down. 71A Minimum period of notice required from employee under particular instrument, federal award or federal agreement (1) This section applies to an employee under any of the following instruments, unless the instrument provides otherwise-- (a) an industrial instrument made after 1 September 2005, other than a certified agreement if the application to certify the agreement was made on or before 1 September 2005; (b) a federal award made or varied after 1 September 2005; (c) a federal agreement made, varied or approved after 1 September 2005, other than a federal agreement if the application to certify the agreement was made on or before 1 September 2005. (2) However, this section does not apply to an employee, apprentice or trainee mentioned in section 72(3) or (7). (3) The minimum period of notice an employee must give to an employer is 1 week. (4) If an employee does not give at least the minimum period of notice required under subsection (3), the employer may deduct from the employee's wages an amount that is not more than the wages, at the ordinary rate, that would have been payable to the employee for the period for which notice was not given. 72 Who this chapter does not apply to (1) Section 73(1) does not apply to-- (a) an employee during the first 3 months of employment with an employer (the probationary period), if the dismissal is for a reason other than an invalid reason, unless the employee and employer agree in writing that the employee serve-- (i) a period of probation that is shorter than the probationary period; or (ii) no period of probation; or (b) an employee serving a period of probation that is longer than the probationary period, if-- (i) the period decided, by written agreement between the employee and employer before the employment started, is a reasonable period having regard to the nature and circumstances of the employment; and (ii) the dismissal is for a reason other than an invalid reason; or (c) a short term casual employee, unless the reason for the dismissal is an invalid reason; or (d) an employee engaged for a specific period or task, unless-- (i) the main purpose of engaging the employee in that way is, or was at the time of the employee's engagement, to avoid the employer's obligations under part 2; or (ii) the employee is participating in a labour market program and is dismissed before the period ends or the task is complete; or (iii) the reason for the dismissal is an invalid reason; or (e) an employee-- (i) who is not employed under an industrial instrument; and (ii) who is not a public service officer employed on tenure under the Public Service Act 2008; and (iii) whose annual wages immediately before the dismissal are more than $68000 or a greater amount stated in, or worked out in a way prescribed under a regulation; or (f) an apprentice or trainee. (2) In deciding-- (a) the probationary period for subsection (1)(a); or (b) whether an employee is a short term casual employee for subsections (1)(c) and (8); periods of employment with a former employer that are taken to be service with a new employer because of section 69 must be taken into account. (3) Parts 3 and 4 do not apply to-- (a) a casual employee; or (b) an employee engaged by the hour or day; or (c) an employee engaged for a specific period or task; or (d) an employee during the first 3 months of employment with an employer (the probationary period) unless the employee and employer agree in writing that the employee serve-- (i) a period of probation that is shorter than the probationary period; or (ii) no period of probation; or (e) an employee serving a period of probation that is longer than the probationary period if the period decided by written agreement between the employee and employer before the employment started, is a reasonable period having regard to the nature and circumstances of the employment; or (f) an employee-- (i) who is not employed under an industrial instrument; and (ii) who is not a public service officer employed on tenure under the Public Service Act 2008; and (iii) whose annual wages immediately before the dismissal are more than $68000 or a greater amount stated in, or worked out in a way prescribed, under a regulation. (4) Part 4 does not apply to an employee with less than 1 year of continuous service. (5) A regulation may exclude particular employees from the operation of particular provisions of this chapter. (6) Without limiting subsection (5), the regulation may identify as a class of employees those employees whose wages or salary immediately before dismissal was more than an amount, or an amount worked out in a way, prescribed under the regulation. (7) Parts 3 to 7 do not apply to-- (a) an apprentice or trainee; or (b) an employee participating in a labour market program. (8) In this section-- short term casual employee means a casual employee, other than a casual employee who-- (a) is engaged-- (i) by a particular employer on a regular and systematic basis; and (ii) for several periods of employment during a period of at least 1 year; and (b) apart from the employer's decision not to offer the person further employment, had a reasonable expectation of further employment by the employer. 73 When is a dismissal unfair (1) A dismissal is unfair if it is-- (a) harsh, unjust or unreasonable; or (b) for an invalid reason. (2) Each of the following is an invalid reason-- (a) temporary absence, within the meaning of a regulation, from work because of illness or injury (other than an injury to which chapter 4, part 6 of the Workers' Compensation and Rehabilitation Act 2003 applies); (aa) temporary absence from work if-- (i) the absence is-- (A) by an SES member or an ESU member under the Disaster Management Act 2003 and for the purpose of performing an SES function or an ESU function under that Act in an emergency situation; or (B) by a member of a rural fire brigade under the Fire and Rescue Service Act 1990 and for the purpose of performing a function of a rural fire brigade under that Act in an emergency situation; or (C) by an honorary ambulance officer under the Ambulance Service Act 1991 and for the purpose of performing a function of an honorary ambulance officer under that Act in an emergency situation; or (D) by a hazmat advisor under the Dangerous Goods Safety Management Act 2001 and for the purpose of performing a function of a hazmat advisor under that Act in an emergency situation; and (ii) having regard to all the circumstances, the period of absence is reasonable; (b) seeking office as, or acting or having acted in the capacity of, an employees' representative; (c) membership of an employee organisation or participation in the organisation's activities outside working hours or, with the employer's consent, during working hours; (d) non-membership of an employee organisation; (e) filing a complaint, or taking part in proceedings, against an employer involving alleged violation of laws or recourse to competent administrative authorities; (f) the making by anyone, or a belief that anyone has made or may make-- (i) a public interest disclosure under the Whistleblowers Protection Act 1994; or (ii) a complaint under the repealed Health Rights Commission Act 1991; or (iii) a complaint under the Health Quality and Complaints Commission Act 2006; (g) refusing to negotiate for, make, sign, extend, amend or terminate a certified agreement or QWA; (h) refusing to negotiate for or make a certified agreement, or Australian workplace agreement, under the Commonwealth Act; (i) the employee or employee's spouse is pregnant or has applied to adopt a child; (j) the employee or employee's spouse has given birth to a child or adopted a child; (k) applying for, or being absent on, parental leave; (ka) a reason mentioned in section 39B(5) or 40(7); (l) a reason mentioned in section 394(2); (m) discrimination. (3) In this section-- parental leave has the meaning given in section 17. 74 Application for reinstatement (1) If it is alleged that an employee has been unfairly dismissed, an application for reinstatement may be made to the commission for the dismissal to be dealt with under this chapter. (2) The application must be made within-- (a) 21 days after the dismissal takes effect; or (b) a further period the commission allows on an application made at any time. (2A) However, a person-- (a) who, immediately before the commencement of this subsection, was a federal award employee within the meaning of section 72(8), as in force immediately before the commencement of this subsection; and (b) who was dismissed after 30 June 1999, but before the commencement of this subsection; and (c) who-- (i) has made an application for reinstatement relating to that dismissal to the commission, but the application was rejected or dismissed because the person was a federal award employee; and (ii) has not made an application for reinstatement relating to that dismissal to the Australian commission; may make an application within 21 days after the commencement of this subsection. (3) An application may be made by-- (a) an employee; or (b) with the employee's consent--an organisation whose rules entitle it to represent the employee's industrial interests. (4) The registrar may reject an application if the registrar considers the dismissed employee is a person mentioned in section 72(1) as a person to whom section 73(1) does not apply. (5) If the registrar rejects the application, the registrar must, by written notice, notify the applicant-- (a) that the application has been rejected; and (b) of the reasons why the registrar considers the dismissed employee is a person mentioned in section 72(1) as a person to whom section 73 (1) does not apply. (6) The applicant may, by written notice given within 21 days after the registrar's notice is received, inform the registrar that the applicant wishes the application to proceed. (7) If the applicant does so, the commission must deal with the application, despite the registrar's rejection. (8) The commission and registrar must deal with an application as quickly as possible. 75 Conciliation before application heard (1) The commission must hold a conference to attempt to settle an application under section 74 by conciliation before it hears the application. (2) The commission may, by written notice, require the applicant, employee or employer to attend the conference at a stated time and place. (3) If the commission is satisfied all reasonable attempts to settle the matter by conciliation are, or are likely to be, unsuccessful so far as it relates to at least 1 ground of the application or because the applicant is a person to whom section 73(1) does not apply, it-- (a) must issue a written certificate stating that the commission-- (i) is so satisfied for a stated ground; or (ii) considers the applicant is a person to whom section 73 (1) does not apply; and (b) must inform the parties to the conciliation of-- (i) the commission's assessment of the merits of the application in relation to the stated ground or in relation to how the applicant is a person to whom section 73(1) does not apply; and (ii) the possible consequences of further proceeding on the application; and (c) may recommend the application be discontinued, whether or not it also recommends another way of resolving the matter. (4) The application lapses if the applicant has not, within 6 months after the applicant has been informed by the commission under subsection (3)-- (a) taken any action in relation to the application; or (b) discontinued the application. (5) The parties may seek further conciliation, or settle the matter, at any time before an order is made under section 78, 79 or 80. (6) The president may delegate the functions of the commission under this section to the registrar or a deputy registrar. 76 Arbitration when conciliation unsuccessful If the commission considers all reasonable attempts to settle an application by conciliation have been made, but have been unsuccessful, the commission may hear and decide the application by-- (a) making an order under section 78, 79 or 80; or (b) dismissing the application. 77 Matters to be considered in deciding an application In deciding whether a dismissal was harsh, unjust or unreasonable, the commission must consider-- (a) whether the employee was notified of the reason for dismissal; and (b) whether the dismissal related to-- (i) the operational requirements of the employer's undertaking, establishment or service; or (ii) the employee's conduct, capacity or performance; and (c) if the dismissal relates to the employee's conduct, capacity or performance-- (i) whether the employee had been warned about the conduct, capacity or performance; or (ii) whether the employee was given an opportunity to respond to the allegation about the conduct, capacity or performance; and (d) any other matters the commission considers relevant. 78 Remedies--reinstatement or re-employment (1) This section applies if the commission is satisfied an employee was unfairly dismissed. (2) The commission may order the employer to reinstate the employee to the employee's former position on conditions at least as favourable as the conditions on which the employee was employed immediately before dismissal. (3) If the commission considers reinstatement would be impracticable, the commission may order the employer to re-employ the employee in another position that the employer has available and that the commission considers suitable. (4) The commission may also-- (a) make an order it considers necessary to maintain the continuity of the employee's employment or service; and (b) order the employee to repay any amount paid to the employee by, or for, the employer on the dismissal; and (c) order the employer to pay the employee the remuneration lost, or likely to have been lost, by the employee because of the dismissal, after taking into account any employment benefits or wages received by the employee since the dismissal. (5) This section does not limit the commission's power to make an interim or interlocutory order. 79 Remedies--compensation (1) If, and only if, the commission considers reinstatement or re-employment would be impracticable, the commission may order the employer to pay the employee an amount of compensation decided by the commission. (2) The commission must not award an amount of compensation that is more than-- (a) if the employee was employed under an industrial instrument--the wages the employer would have been liable to pay the employee for the 6 months immediately after the dismissal, paid at the rate the employee received immediately before the dismissal; or (b) if the employee was not employed under an industrial instrument-- the lesser of the wages under paragraph (a) and an amount equal to half the amount prescribed under section 72(1)(e)(iii). (3) The commission must take into account any amount paid to the employee by the employer on the dismissal. (4) This section does not limit the commission's power to make an interim or interlocutory order. 80 Sanctions for unfair dismissal--invalid reason (1) If satisfied an employer has dismissed an employee for an invalid reason, the commission may order the employer to pay the employee an amount of not more than the monetary value of 135 penalty units. (2) The commission may make the order in addition to an order for reinstatement, re-employment or compensation. 81 Further orders if employer fails to reinstate (1) If an employer wilfully contravenes an order to reinstate or re-employ an employee, the commission may-- (a) further order the employer to pay the employee-- (i) an amount of not more than the monetary value of 50 penalty units; and (ii) an amount for lost wages; and (b) make further orders until the employer complies with an order under section 78 or this section. (2) This section does not affect another provision of this Act allowing proceedings to be taken against the employer. 82 Effect of order on leave If the commission makes an order under section 78, the interruption to the employee's continuity of employment or service caused by the dismissal must be disregarded when working out the employee's entitlement-- (a) to annual, sick, family or long service leave; or (b) under this chapter. 83 What employer must do to dismiss employee (1) An employer may dismiss an employee only if-- (a) the employee has been-- (i) given the period of notice required by section 84; or (ii) paid the compensation required by section 85; or (b) the employee engages in misconduct of a type that would make it unreasonable to require the employer to continue the employment during the notice period. (2) Misconduct under subsection (1)(b) includes-- (a) theft; and (b) assault; and (c) fraud; and (d) other misconduct prescribed under a regulation. (3) However, subsection (1)(b) does not apply if the employee can show that, in the circumstances, the conduct was not conduct that made it unreasonable to continue the employment during the notice period. (4) If an employer dismisses an employee, to whom subsection (1)(a) applies, without giving the required notice or paying the required compensation-- (a) on an application under section 74--the commission may order the employer to pay the employee the compensation that the employer was required to pay under section 85; or (b) otherwise--the commission or a magistrate may order the employer to pay the employee the compensation that the employer was required to pay under section 85. (5) An application for an order under subsection (4)(b) may be made by-- (a) an employee who has been dismissed; or (b) with the employee's consent--an organisation whose rules entitle it to represent the employee's industrial interests; or (c) an inspector. (6) The application must be made within 6 years after the day on which the employee is dismissed. (7) A regulation may exclude from the operation of this section dismissals happening in specified circumstances that relate to the transfer of the employer's business. 84 Minimum period of notice required from employers (1) The minimum period of notice is-- (a) if the employee's continuous service is-- (i) not more than 1 year--1 week; and (ii) more than 1 year, but not more than 3 years--2 weeks; and (iii) more than 3 years, but not more than 5 years-- 3 weeks; and (iv) more than 5 years--4 weeks; and (b) increased by 1 week if the employee-- (i) is 45 years old or over; and (ii) has completed at least 2 years of continuous service with the employer. (2) A regulation may prescribe matters that must be disregarded when working out continuous service under subsection (1). 85 Minimum amount of compensation required (1) The minimum compensation payable to an employee is at least equal to the total of the amounts the employer would have been liable to pay the employee if the employee's employment had continued until the end of the required notice period. (2) The total must be worked out on the basis of-- (a) the ordinary working hours worked by the employee; and (b) the amounts payable to the employee for the hours, including, for example, allowances, loadings and penalties; and (c) any other amounts payable under the employee's employment contract. (3) 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 subsection (2)(c), to an employee whose wages before dismissal were decided wholly or partly on the basis of commission or piece rates. 85A Application of div 1AA (1) This division applies to an employee (a prescribed employee) under any of the following instruments, unless the instrument provides otherwise-- (a) an industrial instrument made after 1 September 2005, other than a certified agreement if the application to certify the agreement was made on or before 1 September 2005; (b) a federal award made or varied after 1 September 2005; (c) a federal agreement made, varied or approved after 1 September 2005, other than a federal agreement if the application to certify the agreement was made on or before 1 September 2005. (2) However, this division does not apply to a prescribed employee if all employees of the prescribed employee's employer work a total of less than 550 hours a week (Monday to Sunday) excluding overtime, averaged over the previous 12 months. (3) In this section-- employer, if the employer is a body corporate, includes each body corporate that is a related body corporate to the employer. related body corporate, of an employer that is a body corporate, means a body corporate that is related to the employer because of the Corporations Act, section 50. 85B Minimum redundancy payment If an employee is made redundant, the employee is entitled to be paid an amount (a redundancy payment) that is at least equal to the employee's weeks pay multiplied by the number of weeks for the employee's years of service, as set out in schedule 3. 85C Employer may apply for relief The employer of an employee who is made redundant may apply to the commission for relief from the obligation to make the redundancy payment if-- (a) the employer has contributed to a fund that will provide a benefit to the employee if the employee is made redundant; or (b) the employer is unable to pay the redundancy payment. 86 When this division applies This division applies to an application about severance allowance or other separation benefits. 87 Orders about severance allowance and other separation benefits (1) The commission may make an order about severance allowance or other separation benefits on application by-- (a) an employee; or (b) an organisation whose rules entitle it to represent the employee's industrial interests. (2) An employer must not contravene the order. (3) If an employer contravenes the order, the commission may-- (a) make any of the orders it may make under section 78(2), (3) or (4); or (b) order the employer to pay the employee an amount of not more than the monetary value of 135 penalty units. (4) In this section-- severance allowance or other separation benefits means severance allowance or other separation benefits under article 12 of the Termination of Employment Convention 1982. 88 Time for making application under this division An application for an order under this division must be made-- (a) before, or within 21 days after, the dismissal takes effect; or (b) within a further period the commission allows on an application made at any time. 89 When this division applies This division applies if an employer decides to dismiss 15 or more employees for an economic, technological or structural reason. 90 Employer must give notice of proposed dismissals (1) The employer may dismiss the employees only if the employer, as soon as practicable after making the decision, notifies-- (a) the Commonwealth department or agency whose primary function is helping unemployed people find work; and (b) each employee organisation of which any of the employees is a member. (2) The notice must state-- (a) the number and categories of employees being dismissed; and (b) the reasons for the dismissals; and (c) the time when, or the period over which, the employer intends to carry out the dismissals. (3) If satisfied an employer has dismissed, or proposes to dismiss, an employee without giving the notice, the commission may make any or all of the following orders-- (a) any of the orders it may make under section 78(2), (3) or (4); (b) an order imposing on the employer a penalty of not more than 16 penalty units; (c) an order that the employer pay the employee an amount of not more than the monetary value of 135 penalty units; (d) an order declaring the dismissal ineffective until the employer has given the notice. (4) An application for an order may be made by-- (a) an employee, including a dismissed employee; or (b) an organisation whose rules entitle it to represent the employee's industrial interests; or (c) an inspector. (5) The commission may order that a penalty, or part of a penalty, under subsection (3)(b) be paid to any person who may have made the application, other than an officer or employee of the State or a public service officer. (6) Any part of the penalty ordered to be paid to the person under subsection (5) must first be paid to the person. (7) The remainder of the penalty must then be paid to the consolidated fund. (8) A failure to give a notice is not an offence. 90A Employer must consult with employee organisations about dismissals (1) The employer must give each employee organisation of which any of the employees is a member an opportunity to consult with the employer on ways to-- (a) avoid or minimise the dismissals; and (b) minimise the adverse effects of the dismissals, for example, by finding alternative employment. (2) The employer must do so as soon as practicable after making the decision to dismiss employees, but in any case before dismissing any of the employees. (3) If the employer does not give the organisation an opportunity to consult as required, the commission may make the orders it considers appropriate to put employees, and their organisations, in the same position, as nearly as can be done, as if the employer had done so. (4) The commission may make an order on application from an employee or organisation that is to be affected by the order. (5) Subsections (1) and (2) do not apply to an organisation 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 a dismissed employee. 90B Time for making application under this division An application for an order under this division must be made-- (a) before, or within 21 days after, the dismissal takes effect; or (b) within a further period the commission allows on an application made at any time. 97 Employee stood down in December then re-employed in January (1) This section applies to an employee, other than a casual employee, who-- (a) is stood down by an employer during December; and (b) is re-employed by the employer before the end of the next January; and (c) was employed by the employer for a continuous period of at least 2 weeks immediately before being stood down. (2) The employer must pay the employee at the ordinary rate payable to the employee immediately before the stand-down for the Christmas Day, Boxing Day, and New Year's Day public holidays between the stand-down and the re- employment. (3) In this section-- stand-down includes dismissal. 98 Permissible stand-down of employee (1) An employer may stand down an employee on a day, or for part of a day, when the employee can not be usefully employed because of something that happened-- (a) for which the employer is not responsible; or (b) over which the employer has no control. (2) The employer may stand down the employee without pay, unless an industrial instrument provides otherwise. (3) This section does not apply to an apprentice or trainee. 99 Chapter does not limit other rights This chapter does not limit a right a person or organisation may otherwise have to-- (a) appeal against a dismissal; or (b) have an industrial instrument or order about a dismissal made. 100 Inconsistent instruments and orders An industrial instrument or order that is inconsistent with an order under this chapter does not apply to the extent the inconsistency detrimentally affects the rights of employees concerned. 101 Main purposes of ch 4 The main purposes of this chapter are to ensure-- (a) a person who is eligible to become a member of an industrial association may become or remain a member of the association without fear of discrimination; and (b) a person who does not wish to become or remain a member of an industrial association may refrain from doing so without fear of discrimination. 102 Definitions for ch 4 In this chapter-- conduct includes an omission. conscientious beliefs means an individual's beliefs based on the individual's moral values or fundamental religious beliefs, other than a belief founded wholly or principally on objections to the policies of an organisation or organisations generally. exempted person means a person who holds an exemption certificate. exemption certificate means an exemption certificate under section 115(1) that has not expired. industrial association means any of the following-- (a) an organisation; (b) an association of independent contractors, however called, that is registered or recognised as an association under an industrial law; (c) an association of employees having as a principal purpose the protection and promotion of their interests in matters concerning their employment; (d) an association of independent contractors having as a principal purpose the protection and promotion of their interests as independent contractors; (e) an association of employers having as a principal purpose the protection and promotion of their interests in matters concerning employment or independent contractors; (f) a branch of an industrial association under paragraphs (a) to (e). industrial body means-- (a) the commission; or (b) the court or another court or commission, however called, exercising industrial law functions and powers corresponding to the commission's functions and powers. industrial instrument includes an award or agreement made under the Commonwealth Act or a law of another State. industrial law means this Act or another Act regulating the relationships between employers and employees. management committee of an industrial association means the body of persons, however called, that manages its affairs. prohibited conduct means conduct prohibited under part 2. representative of an industrial association means-- (a) a delegate of the association; or (b) an employee of the association; or (c) an officer or agent of the association acting in that capacity. 103 Meaning of industrial action for ch 4 (1) In this chapter, industrial action includes conduct by a person-- (a) engaged as an independent contractor that would be a strike if the conduct had been engaged in by an employee; and (b) who has engaged an independent contractor that would be a lockout if the conduct had been engaged in by an employer. (2) A reference in this chapter to industrial action includes a reference to a course of conduct that makes up a series of industrial actions. 104 Meaning of engaging in conduct for a prohibited reason for ch 4 (1) For this chapter, a person engages in conduct for a prohibited reason if the person engages in, or threatens to engage in, the conduct because another person-- (a) is, has been, proposes to cease being or become, or has proposed to cease being or become a member or representative of an industrial association; or (b) is not, or does not propose to become, a member or representative of an industrial association; or (c) has not paid, or does not propose to pay, a fee, however called, to an industrial association; or (d) is, has been, proposes to cease being or become, or has proposed to cease being or become an exempted person; or (e) has not or does not propose to join in industrial action; or (f) has not agreed or consented to, or voted for, the making of an agreement to which an industrial association of which the person is a member, would be a party; or (g) has participated in, proposes to participate in or has proposed to participate in, a secret ballot ordered by an industrial body under an industrial law; or (h) has the right to the benefit of an industrial instrument or an order of an industrial body; or (i) has made or proposes to make an inquiry or complaint to a person or body having the capacity under an industrial law to seek-- (i) compliance with that law; or (ii) the observance of a person's rights under an industrial instrument; or (j) has given evidence or taken part in (participate) or proposes to participate in, or has proposed to participate in proceedings under an industrial law; or (k) is a member of an industrial association that is seeking better industrial conditions; or (l) is dissatisfied with the person's industrial conditions; or (m) has absented himself or herself from work as an employee or independent contractor without leave and-- (i) the absence was to carry out a duty or exercise a right as an officer of an industrial association; and (ii) the person applied for leave before absenting himself or herself and leave was unreasonably refused or withheld; or (n) as an officer or member of an industrial association has done, or proposes to do, an act or thing that is lawful and authorised by the association's rules to further or protect the industrial interests of the association or its members; or (o) is a health and safety representative appointed under the Workplace Health and Safety Act 1995. (2) A person engages in conduct for a prohibited reason if the conduct is engaged in for a reason that includes a prohibited reason. (3) In this section, a reference to a person engaging in conduct includes a reference to the person being, directly or indirectly, a party to or concerned in the conduct. 105 Prohibited conduct for employers and principals (1) This section applies to a person who is, or proposes to become, an employer or who has engaged, or proposes to engage, someone else as an employee or independent contractor. (2) The person must not, for a prohibited reason, engage in the following conduct-- (a) refuse to engage a person as an employee or independent contractor; (b) terminate a person's contract of employment or contract for services; (c) disadvantage or injure a person who is, or proposes to become, an employee or independent contractor; (d) discriminate against a person in the conditions on which the person is offered a contract of employment or contract for services; (e) in negotiating an agreement under chapter 6, part 1, discriminate between the persons's employees because-- (i) some of the employees are members of an employee organisation, while others are not members of the organisation; or (ii) some of the employees are members of a particular employee organisation, while others are not members of the organisation, or are members of a different employee organisation. 106 Prohibited conduct for employees and independent contractors (1) This section applies to a person who is, or proposes to become, an employee or who is, or proposes to become, an independent contractor. (2) The person must not, for a prohibited reason, take industrial action against the person who engaged, or proposes to engage, the person as an employee or an independent contractor. 107 Prohibited conduct for industrial associations An industrial association must not, for a prohibited reason, engage in the following conduct-- (a) organise or take, or threaten to organise or take, industrial action; (b) advise, encourage or incite a person to engage in prohibited conduct or conduct that would be prohibited conduct if the person were an employer or a person who engaged an independent contractor; (c) take or threaten to take action that disadvantages a person in the person's employment, prospective employment, contract for services or prospective contract for services; (d) disadvantage, or impose or threaten to impose a penalty or disability, on a member of the association or a person who is eligible to become a member of the association. 108 Certain actions by representative not prohibited conduct An industrial association does not engage in prohibited conduct under another provision of this part if-- (a) the conduct was engaged in by its representative, during or in connection with industrial action; and (b) the representative acted without the knowledge of the association's management committee; and (c) the management committee could not, by the exercise of reasonable diligence, have prevented the conduct. 108A Action under full bench order not prohibited conduct Anything done under an order of the full bench made under section 279 is not prohibited conduct. 109 Provision requiring or permitting prohibited conduct An industrial instrument or an arrangement is void to the extent it requires or permits prohibited conduct. 110 Encouragement provisions permitted (1) A provision (an encouragement provision) of an industrial instrument may encourage a person to join or maintain membership of an industrial association. (2) The following is not prohibited conduct-- (a) making or acting under an encouragement provision; (b) encouraging a person to join or maintain membership of an industrial association. (3) In this section-- encourage does not include coerce. 111 Who may apply for exemption A person may apply to a magistrate or the registrar for an exemption from membership of an organisation only because of the person's conscientious beliefs. 112 Procedure for hearing Before deciding the application, the magistrate or registrar must follow the procedure prescribed under a regulation for the hearing. 113 Deciding application (1) The magistrate or registrar may grant the application only if satisfied the applicant-- (a) genuinely holds conscientious beliefs; and (b) has paid the same amount as the membership subscription of the organisation to the registrar of a Magistrates Court or the registry. (2) If the magistrate or registrar decides to refuse to grant the application, the registrar must promptly give the applicant a notice stating the following-- (a) the decision; (b) the reasons for the decision; (c) that the applicant may appeal against the decision to the full bench within 21 days; (d) how to start an appeal. 114 How payment must be applied The amount paid to the registrar of the Magistrates Court or the registry must be paid to the consolidated fund. 115 Exemption certificate (1) If the application is granted, the magistrate or registrar must give the applicant a certificate (an exemption certificate). (2) The exemption certificate must-- (a) be in the approved form; and (b) state-- (i) that the applicant is exempt from membership of the organisation because of the applicant's conscientious beliefs; and (ii) the day the exemption takes effect. 116 Expiry of exemption certificate An exemption certificate expires 1 year after the day the exemption stated in the certificate took effect. 117 Who may apply The following may apply to the commission for an order under this part-- (a) an entity against whom prohibited conduct has been carried out or is proposed to be carried out; (b) an industrial association of which an entity mentioned in paragraph (a) is a member or is eligible to become a member of; (c) another entity prescribed under a regulation. 118 Conciliation required before hearing Before the commission hears the application, it must direct the parties to the proceedings to hold a conference before it-- (a) to try to resolve, by conciliation, the issues relevant to the proceedings; and (b) to ensure the parties are fully informed of the orders that may be made at the hearing. 119 Right to be heard (1) The commission must, before making an order under this part against an entity, give the entity an opportunity to be heard. (2) This section does not apply to the making of an interim order or interim injunction. 120 Remedies (1) If, after hearing the application, the commission is satisfied an entity has engaged in, or proposes to engage in, prohibited conduct it may order the entity-- (a) to pay a penalty of not more than the monetary value of-- (i) for a corporation, 135 penalty units; or (ii) otherwise, 27 penalty units; or (b) to reinstate an employee in-- (i) the position from which the employee was removed or dismissed because of the prohibited conduct or proposed prohibited conduct on which the ground was based; or (ii) a similar position; or (c) to re-engage an independent contractor; or (d) to pay appropriate compensation to an entity disadvantaged by the conduct or proposed conduct; or (e) not to carry out a threat made by the entity or make any further threat. (2) If the commission orders the reinstatement of an employee, the reinstatement must be on conditions at least as favourable as the conditions on which the employee was employed immediately before the employee's removal or dismissal. (3) The commission may also-- (a) grant an interim or other injunction or make any other order it considers appropriate to stop the conduct or proposed conduct or to remedy its effects; or (b) make any other order that is consequential to an order under this section. (4) The commission may make more than 1 order under this section against the same entity. 121 Payment of penalty (1) If the commission orders an entity to pay a penalty, it may also order that the penalty, or a part of the penalty, be paid to another entity. (2) Any part of the penalty that is ordered to be paid to the other entity must first be paid to the other entity. (3) The remainder of the penalty must be paid to the consolidated fund. 122 Evidence of prohibited conduct (1) This section applies if conduct was engaged in by any of the following-- (a) an industrial association's management committee; (b) an officer or agent of an industrial association acting in that capacity; (c) a member or group of members of an industrial association authorised by-- (i) the rules of the association; or (ii) its management committee; or (iii) an officer or agent of the association acting in that capacity; (d) a member of an industrial association, who performs the function of dealing with an employer or principal on behalf of the member and other members of the association, acting in that capacity; (e) a director or other officer or an employee or agent of a corporation, acting in that capacity. (2) Evidence that the conduct was engaged in by an entity mentioned in subsection (1) is evidence the conduct was engaged in by the industrial association or corporation. (3) Evidence that the entity engaged in the conduct for a prohibited reason is evidence the conduct was engaged in by the industrial association or corporation for the prohibited reason. 122A Proof of the reason for, or the intention of, conduct not required (1) This section applies if-- (a) in an application under this part about an entity's conduct, it is alleged that the conduct was, or is being, carried out for a particular reason or with a particular intent; and (b) for the entity to carry out the conduct for that reason or with that intent would constitute a contravention of this part. (2) It is to be presumed, in proceedings under this part arising from the application, that the conduct was, or is being, carried out for that reason or with that intent, unless the entity proves otherwise. 123 Form, effect and term of award (1) An award-- (a) must be in a form decided by the commission; and (b) takes effect and has the force of law throughout the State and without limit of time, except as otherwise prescribed by subsection (2). (2) An award may state it is in force-- (a) in a stated locality; or (b) for a stated period; or (c) in relation to a stated employer; or (d) in relation to a stated establishment or operation of a stated employer. (3) An award stated to be limited in a way mentioned in subsection (2) has effect only to the extent that it provides. 124 Persons bound by award (1) An award binds-- (a) subject to paragraphs (d) to (f)--all employers who are engaged in the calling to which the award applies; and (b) subject to paragraphs (d) to (f)--all employees who are engaged in the calling to which the award applies; and (c) all organisations concerned with the calling to which the award applies; and (d) if the award applies only in a stated locality--all employers and employees in the locality who are engaged in the calling to which the award applies; and (e) if the award applies only to a stated employer-- (i) the employer and any successor of the employer; and (ii) all employees of the employer and any successor; and (f) if the award applies only to a stated establishment or operation of a stated employer-- (i) the employer and any successor of the employer; and (ii) all employees of the employer in the establishment or operation. (2) This section applies subject to section 653 and to all exemptions ordered by the commission under section 132 or 234. 125 Making, amending and repealing awards (1) The commission may make, amend or repeal an award to provide, among other things, fair and just employment conditions. (2) The commission may act under subsection (1)-- (a) of its own initiative; or (b) on application by-- (i) the Minister; or (ii) an organisation; or (iii) an employer; or (iv) a person who satisfies the commission that the person is not an officer of, or acting for, an eligible association. (3) The commission may make an award that-- (a) revokes or amends a decision; or (b) declares void or amends labour contracts made before or after the commencement of this Act, subject to the conditions and exemptions the commission considers appropriate; or (c) gives the retrospective effect the commission considers appropriate, or that is consented to by the parties, to the whole or part of an award, but so that, except with the parties' consent, the retrospective effect is not made to operate before the day when the commission first took cognisance of the matter; or (d) directs a copy of an award be exhibited by the employer in a conspicuous and convenient place on the premises of an employer bound by the award. 126 Content of awards The commission must ensure an award-- (a) does not contain discriminatory provisions; and (b) is stated in plain English and is easy to understand in structure and content; and (c) does not contain provisions that are obsolete or need updating; and (d) provides for secure, relevant and consistent wages and employment conditions; and (e) provides for equal remuneration for men and women employees for work of equal or comparable value; and (f) provides fair standards for employees in the context of living standards generally prevailing in the community; and (g) is suited to the efficient performance of work according to the needs of particular enterprises, industries or workplaces; and (h) takes account of the efficiency and effectiveness of the economy, including productivity, inflation and the desirability of achieving a high level of employment; and (i) whenever possible-- (i) contains facilitative provisions that allow agreement at the workplace or enterprise level, between employers and employees (including individual employees), on how the award provisions are to apply; and (ii) contains provisions enabling the employment of regular part-time employees; and (iii) provides support for training arrangements; and (iv) contains facilitative provisions that allow agreement at the workplace or enterprise level, between employers and employees (including individual employees), to be reached on work and family responsibilities; and (j) takes into account employees' family responsibilities. 127 Dispute resolution procedures in each award (1) The commission must ensure an award contains a dispute resolution procedure. (2) The form of the procedure is to be agreed on by the parties to the award. (3) However, if the parties can not agree, the commission must insert an appropriate procedure in the award. (4) Without limiting subsection (1), the procedure must include-- (a) procedures for consultation at the workplace; and (b) procedures for the involvement of relevant organisations; and (c) any other procedure prescribed under a regulation. 128 Awards that fix wage rates (1) In fixing wage rates payable to employees in a calling, the commission must fix the rates on the basis that a man and a woman employed by the same employer must receive equal remuneration for work of equal or comparable value without discrimination on the ground of sex. (2) Despite any other provision of this Act, wage rates fixed by the commission for persons under 21 years may be fixed on a progressive scale based on the wage rates payable to employees 21 years or over in the same calling. (3) In making an award that fixes the wage rates, the commission must consider the age and experience of the persons under 21 years. 129 Flow-on of certified agreements (1) The commission may include in an award provisions that are based on a certified agreement only if satisfied the provisions-- (a) are consistent with principles established by the full bench that apply for deciding wages and employment conditions; and (b) are not contrary to the public interest. (2) However, the commission must include in an award provisions that are based on a certified agreement if-- (a) the parties to the certified agreement agree; and (b) the parties to the certified agreement are bound by the award. (3) The provisions included under subsection (2) must apply only to the parties to the certified agreement. 130 Review of awards (1) The commission may review an award-- (a) of its own initiative; or (b) on the application of a party to the award. (2) Without limiting subsection (1), a party may apply to the commission to amend a provision of an award about wages or employment conditions. (3) The commission must review an award within 3 years after-- (a) it was made; or (b) if it was made before the commencement of this section--the commencement; or (c) it was last reviewed under this section. (4) In reviewing an award, the commission must do what is required by sections 126, 127 and 128. Anti-Discrimination Commission (1) The commission must review an industrial instrument referred to it by the Anti-Discrimination Commission on the grounds that it is discriminatory. (2) The anti-discrimination commissioner is a party to the proceedings. 132 Exemptions (1) The commission may, of its own initiative or on application by an organisation or employer, by the order by which it makes an award, or by its later order, exempt from the application of the award-- (a) an employer or class of employer, or employee or class of employee, in a locality or in the calling to which the award applies; and (b) a person who is engaged, whether as employer or employee, in the locality or calling, while the award remains in force. (2) The commission may give the exemption only if satisfied the exemption-- (a) is in the best interests of the employees and employers concerned; and (b) is not contrary to the public interest. (3) While an exemption exists, the award does not bind the employer, employee, class, or person, according to the exemption. 133 Enforceability of awards Action can not be commenced to enforce an award until 21 days after the date it is published on the QIRC website. 134 Effect of appeals on awards The commission must immediately amend an award to give effect to-- (a) a decision of the Court of Appeal, court or full bench affecting the award on appeal from a decision of the commission; or (b) a decision of the court affecting the award on a case stated by the commission. 135 Inconsistency between awards and contracts (1) To the extent of any inconsistency, an award prevails over a contract of service that is-- (a) in force when the award becomes enforceable; or (b) made while the award continues in force. (2) The contract is to be interpreted, and takes effect, as if it were amended to the extent necessary to make the area of inconsistency conform to the award. (3) However, no inconsistency arises only because the contract provides for employment conditions more favourable to the employee than the award. 136 Apprentice's and trainee's employment conditions (1) An apprentice or trainee is entitled to the same employment conditions as those fixed by the industrial instrument applicable to employees in the workplace where the apprentice or trainee is employed. (2) An apprentice or trainee is entitled to wages at-- (a) if an industrial instrument applying to employees in the workplace where the apprentice or trainee is employed or placed states a rate payable to apprentices or trainees--the rate stated in the instrument; or (b) otherwise--the rate fixed by the commission, being a proportion of the wages payable for the relevant calling to employees in the workplace where the apprentice or trainee is employed or placed. Examples-- 1 An apprentice plumber is placed by a group training organisation in the workplace of a host employer where a federal award applies. The apprentice is entitled to the rate of wages stated in the federal award rather than a State award. 2 An apprentice carpenter is placed by a group training organisation in the workplace of a host employer where a certified agreement applies. The certified agreement does not state the rate of wages payable to an apprentice. The apprentice is entitled to wages at the rate fixed by the commission, being a proportion of the wages payable to a qualified carpenter under the certified agreement. (3) If an industrial instrument provides for a tradesperson in a calling to be paid an allowance in addition to wages, an apprentice in the calling is entitled to be paid-- (a) if, under the instrument, the allowance is taken to be part of the tradesperson's wages--the percentage of the allowance that the apprentice's wages bear to the tradesperson's wages; or (b) if, under the instrument, the allowance is not taken to be part of the tradesperson's wages--the full allowance. (4) If an industrial instrument provides for a tradesperson in a calling to be paid an allowance that is assessed as a percentage of the tradesperson's wages, an apprentice in the calling is entitled to be paid the percentage of the allowance that the apprentice's wages bear to the tradesperson's wages. (5) Subsection (4) applies whether or not, under the instrument, the allowance is taken to be part of the tradesperson's wages. (6) In this section-- industrial instrument includes an award or agreement under the Workplace Relations Act 1996 (Cwlth). workplace, for an apprentice or trainee employed by a group training organisation, includes the workplace of the host employer with whom the apprentice or trainee is placed. 137 Order setting minimum wages and conditions (1) The commission may make an order fixing minimum wages and employment conditions for the following employees, whether or not they are employed under an industrial instrument-- (a) apprentices or trainees; (b) different classes of apprentices or trainees. (2) In making an order, the commission may consider any matter it considers relevant, including-- (a) the age, competency, or method of progression through training of the apprentices or trainees; and (b) an industrial instrument. (3) Despite section 136, if there is an inconsistency between an order and an industrial instrument (other than a certified agreement or QWA), the order prevails to the extent of the inconsistency. (4) The commission may make an order-- (a) of its own initiative; or (b) on application by-- (i) the Training and Employment Recognition Council; or (ii) an organisation; or (iii) a State peak council; or (iv) the Minister; or (v) another entity with an interest in apprentices or trainees. (5) In this section-- industrial instrument includes an award or agreement under the Commonwealth Act. 138 Order setting tool allowance (1) The commission may make an order requiring an apprentice's employer to provide the apprentice with-- (a) tools relevant to the calling the apprentice is engaged in; or (b) an amount to enable the apprentice to buy the tools (a tool allowance). (2) The order may state-- (a) the particular tools to be provided and the circumstances in which they are to be provided; or (b) the circumstances in which a tool allowance must be provided. (3) The commission may make an order-- (a) of its own initiative; or (b) on application by-- (i) the Training and Employment Recognition Council; or (ii) an organisation; or (iii) a State peak council; or (iv) the Minister; or (v) another entity with an interest in apprentices. (4) An employer must not contravene an order. Maximum penalty--40 penalty units. (5) An offence against subsection (4) may consist of-- (a) a single failure to provide the apprentice with the relevant tools, or tool allowance, for a level of the apprenticeship; or (b) a failure to provide the apprentice with the relevant tools, or tool allowance, for the term of the apprenticeship. (6) The offence starts on the day of the failure and continues until the apprentice has been provided with the relevant tools or tool allowance. (7) A complaint, or a series of complaints, may be made for any period over which the offence continues. (8) However, a complaint may only relate to offences started within 6 years before the complaint is made. (9) If a magistrate finds an employer guilty of an offence against subsection (4), the magistrate must, in addition to a penalty the magistrate may impose, order the employer to-- (a) provide the apprentice with the tools required to be provided under the commission's order; or (b) pay to the Magistrates Court the amount-- (i) stated in the commission's order; or (ii) equivalent to the cost of the tools required to be provided under the commission's order. (10) The magistrate may express the order in the alternative so the employer may decide how to comply with it. (11) The court must pay an amount paid under subsection (9)(b) to the apprentice. 138A Termination of employment during probationary period (1) The employment of an apprentice or trainee may be terminated during the probationary period by 1 week's notice given by-- (a) the employer to the apprentice or trainee; or (b) the apprentice or trainee to the employer. (2) An employer who terminates the employment without giving 1 week's notice must pay the apprentice or trainee an amount equal to 1 week's wages. (3) An apprentice or trainee who terminates the employment without giving 1 week's notice loses an amount equal to 1 week's wages. (4) However, subsection (1) does not apply if section 139A applies. (5) In this section-- 1 week's wages means the amount that is at least equal to the total of the amounts the employer would have been liable to pay the apprentice or trainee if the apprentice's or trainee's employment had continued until the end of the required notice period, worked out on the basis of-- (a) the ordinary working hours worked by the apprentice or trainee; and (b) the amounts payable to the apprentice or trainee for the hours, including, for example, allowances, loadings and penalties; and (c) any other amounts payable under the apprentice's or trainee's employment contract. probationary period means the probationary period decided by the Training and Employment Recognition Council under the Vocational Education, Training and Employment Act 2000. 138B Wages payable to former apprentices or trainees (1) This section applies if-- (a) an employee was engaged as an apprentice or trainee; and (b) the employer continued to employ the employee after the end of the probationary period; and (c) either-- (i) the employer dismisses the employee; or (ii) the employer does not sign a training contract. (2) The employee is entitled to the higher of the following for the period after the end of the probationary period-- (a) the wages that would have been payable under the relevant industrial instrument had the employee continued to be employed as an apprentice or trainee; (b) the wages payable under the relevant industrial instrument applicable to the type of work the employee performed. (3) This section does not apply to an employee if a training contract between the employee and employer has been sent to the Training and Employment Recognition Council for registration. traineeship cancelled or completed (1) This section applies despite any other provision of this Act if an employer is training-- (a) an apprentice under an apprenticeship; or (b) a trainee under a traineeship. (2) The apprentice's or trainee's employment with the employer can not be terminated unless the apprenticeship or traineeship is completed or is cancelled under the Vocational Education, Training and Employment Act 2000. Maximum penalty--40 penalty units. 139A Reinstatement to previous position (1) This section applies if-- (a) an apprenticeship or traineeship is started with an employer; and (b) immediately before the apprenticeship or traineeship started, the person training as the apprentice or trainee was employed in a position (the previous position) by the employer; and (c) any of the following events happen-- (i) the Training and Employment Recognition Council refuses to register the person's training contract; (ii) the training contract is cancelled; (iii) the apprenticeship or traineeship ends before the probationary period for the apprenticeship or traineeship ends; (iv) the person completes the apprenticeship or traineeship. (2) The person is taken to be immediately reinstated with the employer in the person's previous position. (3) The reinstated person is not excluded from the operation of chapter 3 only because of the apprenticeship or traineeship. Example-- If the reinstated person is dismissed, section 73(1) may apply to the reinstated person despite section 72(1)(f). 140 Orders for wages and employment conditions (1) The commission may make an order fixing wages and employment conditions for employees who participate in a labour market program. (2) In making an order, the commission may consider any matter it considers relevant, including-- (a) the objectives of the program; and (b) any attribute of the participants that affects their ability to get employment, including, for example-- (i) the age and competency of the participants; and (ii) any disability or incapacity of the participants; and (c) the kind of work done in the program; and (d) the experience to be gained by the participants; and (e) any relevant industrial instrument; and (f) any remuneration or benefit the participants are receiving from the Commonwealth or the State. (3) The commission may make an order-- (a) of its own initiative; or (b) on application by-- (i) the Training and Employment Recognition Council; or (ii) the Minister. 140A Vocational placement (1) The commission may make an order fixing remuneration and conditions that apply to the vocational placement of a student that is for more than 240 hours a year. (2) The commission may make an order-- (a) of its own initiative; or (b) on application by-- (i) the Training and Employment Recognition Council; or (ii) an organisation; or (iii) the Minister; or (iv) another entity with an interest in vocational placement. (3) In making an order, the commission may consider anything it considers relevant, including for example-- (a) the objectives of the vocational placement scheme; and (b) any attribute of the students, including for example-- (i) the age and competency of the students; and (ii) any disability or incapacity of the students; and (c) the kind of work done in the vocational placement scheme; and (d) the experience to be gained by the students; and (e) any relevant industrial instrument; and (f) any remuneration or benefit the students are receiving from the Commonwealth or the State. (4) A person must not contravene the order. Maximum penalty--40 penalty units. (5) In this section-- vocational placement scheme has the meaning given by the Vocational Education, Training and Employment Act 2000. 141 Certified agreements (1) A certified agreement may be made about the relationship between an employer and a group of employees (whether all employees, or a category of employees) of the employer. (2) The certified agreement covers all employees in the group, even if they were employed after the agreement was made. (3) In this section-- group of employees includes-- (a) employees of a single employer; and (b) employees of a multi-employer; and (c) employees of an employer who are engaged in a project, including a proposed project; and (d) employees proposed to be employed in a new business by an employer, other than a multi-employer; and (e) employees of-- (i) the State; or (ii) an entity established for a public purpose under a law of the State or Commonwealth; or (iii) another entity in which the State has a controlling interest. 142 Who may make certified agreements A certified agreement may be made between-- (a) on the one hand, the employer; and (b) on the other hand-- (i) 1 or more employee organisations who represent, or are entitled to represent, any employees who are, or are eligible to be, members of the organisation; or (ii) the employees at the time the agreement is made. 143 Proposed parties to be advised when agreement is proposed (1) This section applies when a person (the proposer) proposes to make a certified agreement. (2) The proposer must advise the following persons, in writing, of the proposer's intention to begin negotiations for the agreement-- (a) the other proposed parties to the agreement; (b) for a project agreement--all relevant employee organisations and the commission. (3) The proposer must advise the persons at least 14 days before the negotiations are proposed to begin. (4) If the agreement proposed is a project agreement, an organisation that receives advice under subsection (2) and wants to be party to the agreement must give written notice of that fact to-- (a) the proposer; and (b) the commission. (5) If the agreement proposed is a multi-employer agreement, a person who receives advice under subsection (2) and wants to be party to the agreement must give written notice of that fact to the proposer. (6) A notice under subsection (4) or (5) must be given within 21 days of the person receiving the advice. (7) An agreement may only be made within that 21 days if the other proposed parties to the agreement, and all relevant employee organisations, have given a notice under subsection (4) or (5). (8) In this section---- multi-employer agreement means an agreement made with a multi-employer. relevant employee organisation means an employee organisation that-- (a) is bound by an award or industrial agreement that binds the employer, or would bind the employer apart from an award under the Commonwealth Act; or (b) if there is no award or agreement that binds, or would bind, the employer--is entitled to represent the industrial interests of the relevant employees. 144 What is to be done when an agreement is proposed (1) This section does not apply to-- (a) a certified agreement to be made with an employee organisation for employees proposed to be employed in a new business; or (b) a project agreement if the agreement is to be made before the project commences. (2) When a certified agreement is proposed to be made with an employee organisation or employees, the employer must take reasonable steps to ensure-- (a) at least 14 days before the relevant employees are asked to approve the agreement, each relevant employee has, or has ready access to, the proposed written agreement; and (b) the terms of the agreement (including the procedures for preventing and settling disputes), and the effect of the terms, are explained to each relevant employee before approval is given; and (c) for an agreement with employees--each relevant employee is informed that he or she may ask a relevant employee organisation to represent the employee in negotiating with the employer about the agreement. (3) If a relevant employee does ask a relevant employee organisation to represent the employee, the employer must give the organisation a reasonable opportunity to represent the employee in negotiating with the employer about the agreement before it is made. (4) Subsection (3) stops applying if, after the request is made-- (a) the relevant employee withdraws the request; or (b) the employee stops being a relevant employee. (5) In this section-- relevant employee organisation means an employee organisation-- (a) of which a relevant employee is a member; and (b) that-- (i) is bound by an award or industrial agreement that binds the employer, or would bind the employer apart from an award under the Commonwealth Act; or (ii) if there is no award or agreement that binds, or would bind, the employer--is entitled to represent the industrial interests of the relevant employees. 145 Negotiations for project agreements (1) This section applies if more than 1 employee organisation has given notice, under section 143(4), that it wants to be party to a proposed project agreement. (2) The employer must negotiate with the single bargaining unit, through a person nominated by the single bargaining unit to represent it. (3) An organisation may withdraw as a party to a proposed project agreement by written notice to-- (a) the other organisations that comprise the single bargaining unit; and (b) the proposer; and (c) the commission. (4) In this section-- single bargaining unit means all the employee organisations that have given notice, under section 143(4), that they want to be party to a proposed project agreement. 146 Negotiations must be in good faith When negotiating the terms of a proposed agreement, the proposed parties to the agreement must negotiate in good faith. Examples of good faith in negotiating-- agreeing to meet at reasonable times proposed by another party attending meetings that the party had agreed to attend complying with negotiation procedures agreed to by the parties not capriciously adding or withdrawing items for negotiation disclosing relevant information as appropriate for the negotiations negotiating with all of the parties 147 Peace obligation period to assist negotiations (1) To enable the proposed parties to reach agreement about the terms of the proposed agreement, the proposed parties can not during the peace obligation period-- (a) take industrial action for the purpose of-- (i) supporting or advancing claims made in relation to the proposed agreement; or (ii) responding to industrial action by the employer or the relevant employees; or (b) ask the commission to help the parties to make the agreement under section 148. (2) In this section-- peace obligation period means the period of 21 days after the giving of the advice mentioned in section 143(2), ending no earlier than 7 days after the nominal expiry date of any existing certified agreement. 148 Assistance in negotiating by conciliation (1) This section applies if, after the peace obligation period has ended-- (a) a party who has attempted to negotiate a certified agreement (a negotiating party), by a declaration of a breakdown in negotiations, has asked the commission to help the parties to make a certified agreement; or (b) the commission becomes aware that a negotiating party is engaging in industrial action that-- (i) is threatening, or has caused, significant damage to the economy, community or local community, or part of the economy; or (ii) is threatening to endanger, or has endangered, the personal health, safety or welfare of the community or part of it. (2) To help the parties to reach agreement, the commission has the conciliation powers it would have under section 230 if that section applied to certified agreement negotiations instead of to industrial disputes. Example-- The commission might help the parties to-- develop and consider options and processes negotiate in good faith. (3) Also, the commission may make orders to-- (a) promote the efficient conduct of negotiations; or (b) ensure the parties negotiate in good faith; or (c) otherwise help the parties to negotiate the agreement. (4) In particular, the commission may order a party to take, or not to take, specified action. (5) In deciding what orders to make, the commission must consider the conduct of each of the parties. (6) If 2 or more employee organisations are involved in the negotiations or proposed negotiations, the commission may order that the organisations be represented, for conciliating the matter, by a single person or group of persons authorised by the organisations to represent them (whether generally or for the particular negotiations). (7) Subsection (6) does not limit subsection (2). 149 Arbitration if conciliation unsuccessful (1) This section applies if-- (a) the commission considers conciliation has not been successful because industrial action-- (i) has been protracted; or (ii) is threatening, or has caused, significant damage to-- (A) the economy or local community, or part of the economy; or (B) a single enterprise; or (C) employees; or (iii) is threatening to endanger, or has endangered, the personal health, safety or welfare of the community or part of it; or (b) the commission considers it is not likely that further conciliation will result in the matter being settled within a reasonable time, considering, among other things, the history of industrial relations in the enterprise or industry to which the proposed agreement is to relate; or (c) all the negotiating parties consider conciliation has been unsuccessful and ask the commission to determine the matter by arbitration. (2) To determine the matter by arbitration-- (a) the commission has the arbitration powers that it would have under section 230 if that section applied to certified agreement negotiations instead of industrial disputes; and (b) the commission may give directions or make orders of an interlocutory nature. (3) Industrial action organised, or engaged in, while the commission determines the matter by arbitration is not protected industrial action for section 174. (4) In exercising the arbitration powers, the commission must limit its consideration to the matters at issue during negotiations for the proposed agreement. (5) In considering the matters at issue, the commission must consider at least the following-- (a) the merits of the case; (b) the likely effects of the commission's proposed determination, and any matters agreed before arbitration, on employees and employers who will be bound by the proposed determination; (c) the public interest, and to that end the commission must consider-- (i) the objects of this Act; and (ii) the likely effects of the commission's determination on the community, economy, industry generally and on the particular enterprise or industry concerned; (d) the extent to which the negotiating parties have negotiated in good faith. (6) The commission must publish its reasons when determining a matter under this section. (7) The reasons must address each of the things the commission considered under subsection (5). (8) The full bench may establish principles about the arbitration of certified agreements. (9) After the principles have been established, the commission must exercise its power to arbitrate in a way that is consistent with the principles. (10) Unless all the negotiating parties agree, the commission as constituted for the conciliation can not exercise the arbitration powers mentioned in this section. 150 Determinations made under s 149 (1) A determination under section 149 must specify a date, of no later than 3 years after the date on which the determination is made, as its nominal expiry date. (2) The determination has effect subject to any conditions specified in it. (3) The determination (including a determination made before the commencement of this subsection) operates until-- (a) before its nominal expiry date has passed--the commission, acting on an application under subsection (4), revokes it under subsection (5); or (b) after its nominal expiry date has passed-- (i) it is replaced by a certified agreement; or (ii) the commission, acting on an application under subsection (4), revokes it under subsection (6). (4) The following persons may apply to the commission to revoke a determination-- (a) the employer; (b) a valid majority of the employees to whom the determination applies; (c) an employee organisation that-- (i) is bound by the determination; and (ii) has at least 1 member who is an employee bound by the determination. (5) Before the determination's nominal expiry date has passed, the commission must not revoke the determination unless satisfied-- (a) the employer and the 1 or more employee organisations, or a valid majority of the employees, who are bound by the determination have agreed to the revocation (for example, because they propose to make an agreement under division 1); and (b) the revocation would not be against the public interest. (6) After the determination's nominal expiry date has passed, the commission must revoke the determination if, and only if, satisfied-- (a) for a determination that provides that it may be revoked if particular conditions are met--the conditions have been met; or (b) for a determination that does not provide for the way it may be revoked--it is in the public interest to revoke the determination. (7) The revocation takes effect when the commission's approval takes effect. (8) While a determination operates-- (a) the determination prevails, to the extent of any inconsistency, over an award or industrial agreement or an order made under section 137; and (b) the determination can not be amended. 151 Steps to be repeated if proposed agreement is amended (1) If a proposed agreement is amended for any reason, the steps in section 144 (2) and (3) must be taken again for the agreement as amended. (2) If the agreement is being amended only by adding an employer (a new employer) as a party to the agreement, the steps need only be taken in relation to the new employer's employees. (3) However, the steps need not be taken if the commission is satisfied the proposed agreement was amended only-- (a) for a formal or clerical reason; or (b) in another way that does not adversely affect a relevant employee's interests. 152 Certificate as to requested representation (1) An employee organisation may apply to the registrar for a certificate stating that an employee has requested the organisation, under section 144, to represent the employee in negotiating with the employer about a proposed agreement. (2) An employer may apply to the registrar for a certificate stating that the employer need not negotiate with an employee organisation about a proposed agreement because of a circumstance mentioned in section 144(4). (3) A certificate must identify the organisation, the employer and the proposed agreement. (4) A certificate must not identify any of the employees concerned. (5) The certificate is, for all purposes of this Act, evidence of the matters stated in it. 153 Applying for certification (1) An application for the commission to certify an agreement may be made by a party to the agreement. (2) For an agreement made between a single employer and 1 or more employee organisations, the application may be made even though the agreement has not been signed by or for all the parties if-- (a) all the parties have agreed on the terms of the agreement; and (b) the agreement has been approved by a valid majority of the relevant employees at the time in a properly conducted ballot. (3) If an agreement has been signed by or for all the parties, the application must be made within 21 days after it is signed. 154 Notice of hearing The registrar must, at least 7 days before an application for certification of an agreement is to be heard, place a notice in the registry detailing-- (a) the names of the parties to the agreement; and (b) the relevant or designated award; and (c) the hearing date. 155 Right of employee organisation to be heard (1) All relevant employee organisations are entitled to be heard on an application for the certification of an agreement. (2) As soon as practicable after the application is made, the commission must notify all relevant employee organisations that-- (a) the application has been made; and (b) the organisation is entitled to be heard on the application. (3) This section does not affect another right of an employee organisation, or anyone else, to be heard on or intervene in an application. (4) In this section-- relevant employee organisation means an employee organisation that-- (a) is bound by an award or industrial agreement that binds the employer, or would bind the employer apart from an award under the Commonwealth Act; or (b) if there is no award or agreement that binds, or would bind, the employer--is entitled to represent the industrial interests of the relevant employees. 156 Certifying an agreement (1) The commission must certify the agreement if, and must not certify the agreement unless, it is satisfied-- (a) the things required by sections 143, 144 and 145 were done, and in particular, the terms of the agreement were explained in a way that was appropriate, having regard to the persons' particular circumstances and needs; and Examples of persons with particular circumstances and needs-- 1 women 2 persons from a non-English speaking background 3 young persons 4 persons with limited literacy or numeracy skills (b) the employer did not coerce, or attempt to coerce, an employee-- (i) not to make a request mentioned in section 144(2)(c); or (ii) to withdraw the request; and (c) the agreement is in writing and signed by or for all the parties; and (d) the agreement includes procedures for preventing and settling disputes; and (e) the agreement specifies a nominal expiry date that is-- (i) for a project agreement--the date no later than the date on which the project ends; and (ii) for another agreement--a date no later than 3 years after the date on which the agreement will come into operation; and (f) the agreement contains, or is accompanied by, information prescribed under a regulation; and (g) a valid majority of the relevant employees employed at the time approved the agreement; and (h) the agreement passes the no-disadvantage test; and (i) for a project agreement--each employee organisation that has given notice of wanting to be party to the agreement under section 143(4), and that has not withdrawn as a party under section 145(3), is a party to the agreement; and (j) for an agreement to be made with an employee organisation, other than an agreement for a new business-- (i) each employee organisation that is bound by the award or industrial agreement that binds the employer, or would bind the employer apart from an award under the Commonwealth Act, is a party to the agreement; or (ii) if no award or industrial agreement binds, or would bind, the employer--each employee organisation that is entitled to represent the industrial interests of the relevant employees is a party to the agreement; and (k) for an agreement for a new business-- (i) the agreement was made before the employment of any of the persons in the new business at the new workplace whose employment will be subject to the agreement; and (ii) the agreement has been made with 1 or more employee organisations that are entitled to represent the industrial interests of the persons; and (l) for an agreement other than a multi-employer agreement or project agreement, the employer-- (i) remunerates all men and women employees of the employer equally for work of equal or comparable value; or (ii) will, because of the agreement if it is certified, remunerate all men and women employees of the employer equally for work of equal or comparable value; or (iii) is implementing equal remuneration for work of equal or comparable value for all men and women employees of the employer; and (m) for a multi-employer agreement or project agreement--the agreement provides for equal remuneration for all men and women employees covered by the agreement for work of equal or comparable value. (1A) Subsection (1)(c) does not apply if the commission is satisfied, in the particular circumstances, that-- (a) although the agreement has not been signed by or for all the parties, all the parties have agreed on the terms of the agreement; and (b) the application for the certification of the agreement was made within a reasonable time after the agreement was approved by a valid majority of the relevant employees at the time in a properly conducted ballot. (1B) For subsection (1A), in deciding whether all parties have agreed on the terms of the agreement, the commission may consider-- (a) whether the parties negotiated in good faith as required under section 146; and (b) any other evidence supporting or not supporting the alleged agreement. (2) Subsection (1)(j) does not apply if the commission is satisfied an employee organisation mentioned in subsection (1)(j)-- (a) has been given the opportunity to be a party to the agreement, but does not want to be a party; or (b) has no members who are to be bound by the agreement. (3) For subsection (1)(l), the commission may consider, but must not review, any relevant industrial instrument to decide whether the instrument provides for equal remuneration for all men and women employees covered by the instrument for work of equal or comparable value. 157 When commission to refuse to certify an agreement (1) The commission must refuse to certify an agreement if it considers that a provision of the agreement is inconsistent with-- (a) a provision of-- (i) chapter 2, part 5; or (ii) chapter 3; or (iii) chapter 4; or (b) an order by the commission under any of those provisions; or (c) an injunction granted by the commission under any of those provisions. (2) The commission must refuse to certify an agreement if satisfied-- (a) the employer has, in connection with negotiating the agreement, contravened-- (i) section 170; or (ii) chapter 4; or (b) the employer has caused an entity to engage, in connection with negotiations for an agreement, in conduct that, had the employer engaged in the conduct, would be a contravention by the employer of-- (i) section 170; or (ii) chapter 4; or (c) an entity has, for the employer-- (i) engaged in conduct mentioned in paragraph (b); or (ii) caused another entity to engage in the conduct. (3) Subsection (2) does not apply if the commission is satisfied the contravention or conduct, and its effects, have been fully remedied. (4) The commission must refuse to certify an agreement if it considers a provision of the agreement is a discriminatory provision. (5) The commission must refuse to certify an agreement if a provision of the agreement seeks to prohibit or restrict an application being made under chapter 2, part 5. (6) The commission must refuse to certify an agreement if-- (a) the agreement applies only to a group or category of employees; and (b) the commission considers the agreement defines the group or category in a way that results in other employees not being subject to the agreement, if it would be reasonable for the other employees to be subject to the agreement, having regard to-- (i) the nature of the work performed by the other employees; and (ii) the organisational and operational relationships between the group or category and the other employees; and (c) the commission considers it unfair that the other employees are not subject to the agreement. 158 Other options open to commission instead of refusing to certify agreement (1) If, under section 156 or 157, the commission has grounds to refuse to certify an agreement-- (a) the commission may accept an undertaking from 1 or more of the persons who made the agreement in relation to the operation of the agreement and, if satisfied the undertaking meets the commission's concerns, certify the agreement; and (b) before refusing to certify the agreement, the commission must give the persons who made the agreement an opportunity to take action that may be necessary to enable the commission to certify the agreement. (2) If an undertaking is not complied with, the commission, after giving the persons who made the agreement an opportunity to be heard, may-- (a) order the 1 or more persons who gave the undertaking to comply with it; or (b) terminate the agreement. (3) If-- (a) after doing the things required or allowed by subsection (1), the commission is still required to refuse to certify the agreement; and (b) it is so required only because of an inconsistency mentioned in section 157(1); the commission may conciliate the industrial matter concerned with a view to helping the persons concerned to take the action necessary to enable the commission to certify the agreement. 159 Procedures for preventing and settling disputes The procedures for preventing and settling disputes contained in a certified agreement may, with the commission's approval, authorise the commission to settle a dispute. 160 When an agreement passes the no-disadvantage test (1) An agreement passes the no-disadvantage test if it does not disadvantage employees in relation to their employment conditions. (2) An agreement disadvantages employees only if the commission considers it would result in a reduction in the employees' entitlements or protections. (3) Subsection (2) applies subject to sections 161 and 162. (4) Subsection (2) does not apply if the commission considers that, in the context of the employment conditions considered as a whole, the reduction is not against the public interest. Example of subsection (4)-- The making of the agreement is part of a reasonable strategy to deal with a short-term crisis in, and to help in the revival of, a business. (5) If the president considers exceptional circumstances exist, the president may require the registrar to give the commission a report comparing the agreement with the employee's entitlements or protections. (6) In this section-- entitlements or protections means the entitlements or protections under-- (a) a relevant award, designated award, industrial agreement or order under chapter 5, part 5; or (b) chapter 2, including as reviewed by a general ruling of the full bench, or chapter 3, part 4, division 1AA. 161 Special case--employee eligible for supported wage system (1) This section applies if a certified agreement provides for the payment of wages to an employee who is eligible for the supported wage system at a rate not less than the rate set in accordance with that system for the employee. (2) The agreement does not disadvantage the employee in relation to the employee's employment conditions only because of the reduction of the employee's wages. 162 Special case--employee undertaking approved apprenticeship or traineeship (1) This section applies if-- (a) a certified agreement provides for the payment of wages to an employee undertaking approved training (a training employee) in a particular trade, occupation or work, or a trade, occupation or work similar to the particular trade, occupation or work (the work); and (b) there is a relevant award, designated award or order providing for the payment of wages to employees undertaking benchmark training for the work. (2) The agreement is taken to disadvantage the training employee in the employee's employment conditions if the agreement provides for the payment of wages to the employee at a rate less than the rate payable to an employee undertaking benchmark training (the benchmark employee) under the relevant award, designated award or order, as adjusted under subsection (3). (3) For subsection (2), the rate payable to a benchmark employee is to be adjusted to take into account the proportionate difference, as decided by the approving authority, between the productive time of a training employee and the productive time of a benchmark employee. (4) If the agreement adopts, as the qualification for a wage level, a criterion decided by the approving authority (the decided criterion) instead of a specified criterion applying under the relevant award, designated award or order (the award criterion), the award is taken, for this section, to have effect as if the decided criterion were substituted for the award criterion. (5) This section does not apply to a trainee bound by-- (a) the Training Wage Award--State; or (b) the National Training Wage Award 1994. (6) In this section-- benchmark training means training for an apprentice or trainee in a particular trade, occupation or work if the trade, occupation or work is recognised under an award or under an order made under section 137. 163 Deciding designated awards (1) This section applies if-- (a) an employer or organisation of employees proposes to make a certified agreement; and (b) there is no relevant award for some or all of the persons to whom the agreement will apply. (2) The employer or organisation must apply to the commission for a decision under subsection (3). (3) On application, the commission must decide that an award (regulating employment conditions of employees engaged in a similar kind of work as the person under the proposed agreement) is appropriate for deciding whether the agreement passes the no-disadvantage test. (4) The commission must inform the employer or organisation in writing of its decision. 164 When a certified agreement is in operation (1) A certified agreement starts operating when it is certified. (2) The agreement continues to operate until-- (a) after its nominal expiry date, it is replaced by another certified agreement; or (b) it is terminated under section 158, 171, 172 or 173. 165 Certified agreement's effect on awards, agreements or orders (1) While a certified agreement operates, it prevails, to the extent of any inconsistency, over an award or industrial agreement or an order made under section 137. (2) While a project agreement operates, it operates to the exclusion of any other certified agreement or QWA. 166 Persons bound (1) A certified agreement binds-- (a) the employer-- (i) for an agreement made by an organisation of employers for a project--for whom the agreement was made; or (ii) who made the agreement; and (b) all persons who are, while the agreement operates, relevant employees; and (c) if the agreement is made with 1 or more employee organisations-- the 1 or more organisations. (1A) Subsection (1) applies even though an employer or employee organisation has not signed the agreement if the commission is satisfied, under section 156 (1A) in the particular circumstances, that the agreement does not need to be signed by or for all the parties. (2) For a certified agreement made between the employees and employer, the commission must decide that the agreement also binds an employee organisation if-- (a) before the agreement is certified, the organisation gives the commission and employer notice that it wants to be bound by the agreement; and (b) the organisation satisfies the commission that-- (i) the organisation has at least 1 member-- (A) whose employment will be subject to the agreement; and (B) who asked the organisation to give the notice; and (ii) the organisation-- (A) is bound by an award or industrial agreement that binds the employer, or would bind the employer apart from an award under the Commonwealth Act; or (B) if there is no award or agreement that binds, or would bind, the employer--is entitled to represent the industrial interests of the relevant employees. 167 Successor employers bound (1) This section applies if-- (a) an employer is bound by a certified agreement; and (b) at a later time a new employer becomes the successor (whether or not immediate) of the whole or a part of the business of the employer bound by the agreement. (2) From the later time-- (a) the new employer is bound by the certified agreement, to the extent it relates to the whole or part of the business; and (b) the previous employer stops being bound by the certified agreement, to the extent it relates to the whole or part of the business; and (c) a reference in this part to the employer includes a reference to the new employer, and ceases to refer to the previous employer, to the extent the context relates to the whole or part of the business. 168 Extending a certified agreement (1) On or before the nominal expiry date of a certified agreement, the following persons may apply to the commission to extend a certified agreement's nominal expiry date-- (a) if 1 or more organisations are bound by the agreement--the employer and the 1 or more organisations; (b) otherwise--the employer. (2) However, the nominal expiry date can not be extended beyond-- (a) for a project agreement--the date on which the project ends; or (b) for another agreement--3 years after the date on which the agreement came into operation. (3) The extension has no effect unless the commission approves it. (4) The commission must approve the extension if, and must not approve the extension unless, satisfied a valid majority of the relevant employees at the time approved the extension. (5) The extension takes effect when the commission's approval takes effect. (6) This section does not apply to-- (a) an agreement made with an employee organisation for employees proposed to be employed in a new business; or (b) an agreement to which section 160(4) applies. 169 Amending a certified agreement (1) This section does not apply to an amendment of the parties to the agreement, other than in a multi-employer agreement (a multi-employer amendment). (2) The following persons may apply to the commission to amend a certified agreement-- (a) if 1 or more organisations are bound by the agreement--the employer and the 1 or more organisations; (b) for a multi-employer amendment--the person who wants to become a party to the agreement (the new employer); (c) otherwise--the employer. (3) The commission must approve the amendment if, and only if, satisfied-- (a) the amendment has been approved by-- (i) for a multi-employer amendment-- (A) a valid majority of the new employer's employees whose employment will be subject to the amended agreement; and (B) the other parties to the agreement, or their representative; or (ii) for any other amendment--a valid majority of the relevant employees at the time; and (b) the commission would be required to certify the agreement as amended if it were an agreement whose certification was applied for under this part. (4) In applying subsection (3)(b)-- (a) a requirement about a majority of persons making or approving the agreement is taken to be satisfied; and (b) section 158 is to be disregarded. (5) The amendment takes effect when the commission's approval takes effect. (6) The commission may, on application by a person bound by a certified agreement, amend a certified agreement-- (a) to remove ambiguity; or (b) to include, omit or amend a term, however specified, that allows an employer to stand down an employee; or (c) in another way, if-- (i) the following persons have agreed to the amendment-- (A) for an agreement between the employer and an employee organisation--the employer and organisation; (B) for an agreement between the employer and employees--the employer and a valid majority of the relevant employees at the time; and (ii) the commission is satisfied the amendment does not disadvantage the relevant employees; and (iii) the commission is satisfied exceptional circumstances have arisen in the workplace that necessitate the amendment. (7) A certified agreement may be amended only under-- (a) this section (including as it applies under section 170); or (b) section 168; or (c) section 171. 170 Amendment if discrimination between unionists and non-unionists (1) This section applies if-- (a) 1 or more employees whose employment is not subject to the agreement ask the employer to-- (i) amend the agreement so that their employment is subject to the agreement; and (ii) seek the approval of the commission for the amendment under section 169; and (b) their employment would be subject to the agreement if-- (i) they were members of an employee organisation or of a particular employee organisation; or (ii) they were not members of an employee organisation or of a particular employee organisation. (2) The employer must seek the commission's approval to amend the agreement in accordance with the request. (3) The commission must disregard section 169(3)(a) in deciding whether to approve the amendment. 171 Other options open to commission instead of refusing to approve amendment of agreement (1) If, for section 170, the commission is not satisfied as required under section 169(3)-- (a) before refusing to approve the amendment, it must give the persons who amended the agreement an opportunity to take action necessary to enable the commission to approve the amendment; or (b) it may accept an undertaking from 1 or more of the persons who amended the agreement in relation to the operation of the agreement as amended and, if satisfied the undertaking meets the commission's concerns, approve the amendment. (2) If an undertaking is not complied with, the commission, after giving the persons who amended the agreement an opportunity to be heard, may-- (a) order the 1 or more persons who gave the undertaking to comply with the undertaking; or (b) undo any effect of the amendment; or (c) terminate the amendment. 172 Terminating certified agreement on or before its nominal expiry date (1) On or before a certified agreement's nominal expiry date, the following persons may terminate the agreement by notice-- (a) if 1 or more organisations are bound by the agreement--the employer and the 1 or more organisations; (b) otherwise--the employer. (2) The commission must approve the termination if, and only if, satisfied a valid majority of the relevant employees at the time approve its termination. (3) The termination takes effect when the commission's approval takes effect. 173 Terminating agreement after its nominal expiry date (1) After a certified agreement's nominal expiry date, the following persons may apply to the commission to terminate a certified agreement-- (a) the employer; (b) a valid majority of the relevant employees; (c) an employee organisation that is bound by the agreement and that has at least 1 member who is a relevant employee. (2) If the agreement does not provide for the way it may be terminated after the agreement's nominal expiry date has passed, the person who intends to apply to terminate it must give all other persons bound by the agreement notice of the intention. (3) The commission must approve the termination if, and only if, satisfied-- (a) for an agreement that provides that it may be terminated if particular conditions are met--the conditions have been met; or (b) for an agreement that does not provide for the way it may be terminated--it is in the public interest to terminate the agreement. (4) The termination takes effect when the commission's approval takes effect. 174 Protected industrial action (1) This section applies to industrial action that is organised, or engaged in, by a protected person or the employer for the purpose of-- (a) supporting or advancing claims made in relation to a proposed agreement; or (b) responding to industrial action by the employer or the relevant employees. (2) An action for the industrial action taken after the peace obligation period does not lie under any law, unless the industrial action has involved or is likely to involve-- (a) personal injury; or (b) wilful or reckless destruction of, or damage to, property; or (c) the unlawful taking, keeping or use of property. (3) However, subsection (2) applies to-- (a) a strike by a protected person, only if the protected person has genuinely tried to reach agreement before the strike starts; and (b) a lockout by an employer, only if the employer has genuinely tried to reach agreement before the lockout starts. (4) Despite subsection (2), an action for defamation may be brought in relation to anything that happened during the industrial action. (5) If the employer lawfully locks out an employee, the employer may refuse to pay the employee remuneration for the period of the lockout. (6) The employer can not lock out an employee unless the continuity of the employee's employment, for the purposes prescribed under a regulation, is not affected by the lockout. (7) In this section-- protected person means-- (a) an employee organisation that is a negotiating party; or (b) an officer or employee of the employee organisation acting in that capacity; or (c) an employee who is a negotiating party or a member of the employee organisation. 175 Notice of industrial action to be given (1) Section 174(2) does not apply to industrial action unless the person intending to take the action gives all of the negotiating parties-- (a) if the action is in response to, and is taken after the start of, industrial action by another negotiating party in relation to a proposed agreement--written notice of the intended action; or (b) otherwise--at least 3 working days written notice of the intended action. (2) However, an employer who is negotiating an agreement with employees may take other reasonable steps to notify the employees of the intended action, instead of giving a written notice. (3) A notice must state the nature of the intended action and the day when it will begin. (4) A notice may be given before the end of the peace obligation period if the intended action does not start before the end of the period. 176 Secret ballot about taking industrial action (1) This section applies if the commission considers-- (a) industrial action is being taken, or industrial action is threatened or probable, in relation to a proposed certified agreement; and (b) finding out the relevant employees' attitudes about the matters giving rise to the industrial action might help-- (i) to stop or prevent the industrial action; or (ii) to settle the matters. (2) The commission may order that a vote of employees be taken by secret ballot (with or without a provision for absent voting), in accordance with the commission's directions, to find out their attitudes about the matters. (3) After an order is made, the organising of, or engaging in, industrial action by the employee organisation or employees is not protected industrial action unless-- (a) the ballot has been taken; and (b) the industrial action has been approved by a majority of the valid votes cast in the ballot. (4) The commission must revoke the order if after an order is made, but before the vote is taken, the commission forms the view that the ballot should not proceed because it has satisfied itself that-- (a) the matters have been, or are about to be, settled; or (b) the industrial action has stopped or been prevented, or is about to stop or be prevented. (5) In subsection (3)-- organisation includes-- (a) a member of the organisation; and (b) an officer or employee of the organisation acting in that capacity. 177 Industrial action must be properly authorised (1) Section 174 does not apply to industrial action engaged in by members of an employee organisation that is a negotiating party unless, before the industrial action begins-- (a) the industrial action is properly authorised by the organisation's management committee or someone authorised by the committee to authorise the industrial action; and (b) if the organisation's rules state the way industrial action is to be authorised--the industrial action is properly authorised under the rules; and (c) notice of the giving of the authorisation is given to the registrar. (2) Industrial action is taken to be properly authorised under an employee organisation's rules even though a technical breach has happened in authorising the industrial action, if the person who committed the breach acted in good faith. (3) Examples of a technical breach in authorising industrial action include-- (a) a contravention of the organisation's rules; and (b) an error or omission in complying with this Act; and (c) participation, by a person not eligible to do so, in the making of a decision by a management committee, or by members, of the organisation. (4) Industrial action is taken to have been properly authorised under an employee organisation's rules, and to have been authorised before the industrial action began, unless-- (a) the commission declares in proceedings that the industrial action was not properly authorised under the rules; and (b) the proceedings were brought in the commission within 6 months after the notice was given to the registrar under subsection (1)(c). (5) So far as an employee organisation's rules specify the way in which industrial action under this division is to be authorised, the rules do not contravene section 435 unless the way specified contravenes that section. 179 Employer not to dismiss employee for engaging in protected industrial action (1) An employer must not-- (a) dismiss an employee, injure an employee in his or her employment or change an employee's position to the employee's prejudice; or (b) threaten to dismiss an employee, injure an employee in his or her employment or change an employee's position to the employee's prejudice; wholly or partly because the employee is proposing to engage, is engaging, or has engaged, in protected industrial action. (2) Subsection (1) does not apply to any of the following actions taken by the employer-- (a) standing down the employee; (b) refusing to pay the employee if, under common law, the employer is permitted to do so because the employee has not performed work as directed; (c) action of the employer that is itself protected industrial action. (3) In proceedings under section 183 for an alleged contravention of subsection (1), it is to be presumed, unless the employer proves otherwise, that the alleged conduct of the employer was carried out wholly or partly because the employee was proposing to engage, was engaging, or had engaged, in protected industrial action. 180 Remedies if employee dismissed etc. for engaging in protected industrial action (1) If an employer contravenes section 179(1), the commission may order the employer-- (a) if the contravention was constituted by dismissing an employee-- to reinstate the employee to the position the employee occupied immediately before the dismissal or re-employ the employee in a position at least as favourable as that position; and (b) to pay the employee dismissed, injured or prejudiced, compensation for loss suffered because of the dismissal, injury or prejudice. (2) The rights of and relating to reinstatement and re-employment that are conferred on an employee by this section do not limit any other rights of the employee. 181 When industrial action must not be taken (1) This section applies to-- (a) a certified agreement from when it starts operating until its nominal expiry date has passed; and (b) a determination under section 149 from when it starts operating until its nominal expiry date has passed. (2) The following persons must not engage in industrial action for the purpose of supporting or advancing claims against the employer in relation to the employment of employees whose employment is subject to the agreement or determination-- (a) an employee whose employment is subject to the agreement or determination; (b) an employee organisation that is bound by the agreement or determination; (c) an officer or employee of the employee organisation acting in that capacity. (3) If the employee, organisation or officer does so, the action is not protected industrial action. (4) The employer must not lock out an employee from his or her employment for the purpose of supporting or advancing the employer's claims in relation to the employment of employees whose employment is subject to the agreement or determination. (5) If the employer does so, the lockout is not protected industrial action. 182 Penalty provisions In this division, each of the following is a penalty provision-- (a) section 170(2); (b) section 179(1); (c) section 181(2) or (4); (d) section 185 (1) or (3). 183 Penalties for contravening penalty provisions (1) A contravention of a penalty provision is not an offence. (2) However, a magistrate may, by order, impose a penalty on a person who contravenes a penalty provision. (3) The penalty can not be more than the amount of the monetary value of-- (a) for a corporation--135 penalty units; or (b) otherwise--27 penalty units. (4) An application for an order for a contravention of section 170(2) may be made by-- (a) the employees making the request mentioned in section 170; or (b) an employee organisation of which any of the employees making the request is a member; or (c) an inspector; or (d) another person prescribed under a regulation. (5) An application for an order for a contravention of section 179(1) may be made by-- (a) the employee concerned; or (b) an employee organisation of which the employee is a member; or (c) an inspector; or (d) another person prescribed under a regulation. (6) An application for an order for a contravention of section 181(2) or (4) may be made by-- (a) an employee whose employment is subject to the certified agreement concerned; or (b) another person who is bound by the agreement; or (c) another person prescribed under a regulation. (7) An application for an order for a contravention of section 185(1) or (3) may be made by-- (a) an employee whose employment is subject to the agreement, or will be subject to the proposed agreement concerned; or (b) another person bound by the agreement or who will be bound by the proposed agreement; or (c) the person who allegedly was intended to be coerced; or (d) an employee organisation of which the person is a member; or (e) an inspector; or (f) another person prescribed under a regulation. (8) The magistrate may order that a penalty, or part of a penalty, be paid to any person who may have made the application (other than an officer or employee of the State or a public service officer). (9) Any part of the penalty that is ordered to be paid to the person must first be paid to the person. (10) The remainder of the penalty must be paid to the consolidated fund. 184 Secret ballot on valid majority (1) This section applies if-- (a) the commission is required under this part to be satisfied that a valid majority of the persons employed at a particular time whose employment is or will be subject to an agreement have made or terminated the agreement, or given an approval; and (b) the commission is not so satisfied. (2) The commission may order a vote be taken by secret ballot (with or without a provision for absent voting), in accordance with the commission's directions, of employees whose employment is or will be subject to the agreement to find out whether they would make or terminate the agreement, or give the approval. (3) If a majority of the validly cast votes is in favour of making or terminating the agreement, or giving the approval, the commission is taken to be satisfied of the requirement. (4) Before a vote is taken, the commission may revoke an order under subsection (2) if it becomes satisfied that the requirement of subsection (1)(a) has been met. 185 Coercion of persons to make, amend or terminate certified agreements etc. (1) A person must not take, or refrain from taking, industrial action or other action with intent to coerce someone else to agree, or not to agree, to-- (a) making, amending or terminating, or extending the nominal expiry date of, an agreement under this part; or (b) approving anything mentioned in paragraph (a). (2) Subsection (1) does not apply to industrial action that is protected industrial action. (3) An employer must not coerce, or attempt to coerce, an employee of the employer-- (a) not to make a request mentioned in section 144(2)(c) in relation to an agreement the employer proposes to make; or (b) to withdraw the request. (4) In this section-- take or refrain from taking includes threaten to take or refrain from taking. 187 Definitions for pt 2 In this part-- additional approval requirements means the additional approval requirements in section 202. amendment agreement see section 197. ancillary document means any of the following-- (a) an amendment agreement; (b) an extension agreement; (c) a termination agreement; (d) a termination notice. approval notice means an approval notice issued by the commission. bargaining agent means a person appointed as a bargaining agent under section 196. certified copy of a document means a copy that is certified as being a true copy of the document. employee see section 188(2). employer see section 188(2). existing employee, in relation to a QWA, means an employee who signed the QWA after commencing the employment to which the QWA relates. extension agreement means an agreement to extend the nominal expiry date of a QWA. file a QWA or ancillary document means file with the registrar or chief inspector. filing receipt means a receipt issued by the registrar or chief inspector. filing requirements means the filing requirements in section 200. new employee, in relation to a QWA, means an employee who signed the QWA before, or at the time of, commencing the employment to which the QWA relates. nominal expiry date of a QWA, see section 194. party to a QWA or ancillary document means the employer or employee. period of operation of a QWA, see section 195. QWA see sections 188 and 207. QWA date means the date on which the employer and employee sign the QWA or, if they sign on different dates, the later of the dates. refusal notice means a refusal notice issued by the commission under section 206. relevant or designated award means the relevant or designated award that is used when applying the no-disadvantage test. required number of days means-- (a) for a new employee--5 days; or (b) for an existing employee--14 days. termination agreement see section 198(1). termination notice see section 198(3). 188 Proposed QWAs and ancillary documents--interpretation (1) As far as the context permits, a reference in this part to a QWA or ancillary document includes a reference to a proposed QWA or ancillary document. (2) In relation to a proposed QWA or ancillary document, a reference in this part to the employer or employee is a reference to the person who will be the employer or employee when the QWA or ancillary document starts to operate. 189 Functions and powers of commission The commission must, as far as practicable, perform its functions under this part-- (a) in a way that furthers the objects of this Act; and (b) without undue delay; and (c) in an informal way. 190 QWAs and ancillary documents only have effect as provided by this part (1) A QWA or ancillary document has effect as provided by this part, and not otherwise. (2) In particular-- (a) a QWA for a new employee has no effect before a filing receipt is issued for the QWA; and (b) a QWA for an existing employee has no effect before an approval notice is issued for the QWA. 191 Collective QWAs (1) In this part, 2 or more agreements negotiated collectively may be included in the same document if the same employer is a party to all the agreements. (2) The agreements need not be in the same terms. (3) A QWA for a new employee can not be included in the same document as a QWA for an existing employee. 192 Employer and employee may make a QWA (1) A single employer and a single employee, other than an employer and employee mentioned in subsection (3), may make a QWA that deals with matters relating to the relationship between an employer and employee. (2) A QWA may be made before the start of employment. (3) The employer of an employee employed in 1 of the following may not make a QWA with the employee-- (a) a department of government or part of a department; (b) a public service office or part of a public service office under the Public Service Act 2008; (c) an agency, authority, commission, corporation, instrumentality, office, or other entity, established under an Act or under State authorisation for a public or State purpose; (d) a part of an entity mentioned in paragraph (c); (e) a registry or other administrative office of a court of the State of any jurisdiction; (f) the parliamentary service; (g) the Governor's official residence (known as 'Government House') and its associated administrative unit; (h) a court of the State of any jurisdiction; (i) the police service to the extent that it does not include staff members mentioned in the Police Service Administration Act 1990, section 2.5(1)(a); (j) another entity, or part of another entity, declared under a regulation for this section. (4) The employer may not make a QWA with an employee who is under 18 years. 193 Matters to be included in QWA (1) The employer must ensure the QWA includes-- (a) the provisions about discrimination prescribed under a regulation; and (b) provision for the remuneration of the employee on the basis of equal remuneration for the employee for work of equal or comparable value performed by other men and women employees of the employer. (2) If the QWA does not in fact include the prescribed provisions about discrimination, the QWA is taken to include the provisions. (3) The employer must ensure the QWA does not include provisions that prohibit or restrict disclosure of details of the QWA by either party to another person. (4) The employer must ensure the QWA includes a dispute resolution procedure. (5) If the QWA does not include a dispute resolution procedure, the QWA is taken to include the model dispute resolution procedure prescribed under a regulation. (6) If a dispute resolution procedure confers powers on the commission to prevent or settle disputes between the parties to the QWA about the application or interpretation of the QWA, the commission may exercise the powers. (7) To avoid doubt, unless power is conferred on the commission to prevent or settle disputes, the commission must not exercise arbitration powers to prevent or settle a dispute between the parties to the QWA. 194 Nominal expiry date of QWA (1) A QWA must specify a date as its nominal expiry date. (2) The date can not be more than 3 years after the QWA date. (3) An employer and employee may make a written agreement (an extension agreement) that extends the nominal expiry date. (4) The extended date can not be more than 3 years after the QWA date. (5) The extension agreement has no effect unless a filing receipt is issued for the extension agreement at least 21 days before the nominal expiry date that is to be extended. (6) The extension agreement takes effect on the day after an approval notice is issued for the extension agreement. 195 Period of operation of QWA (1) A QWA for a new employee starts operating on the later of the following days-- (a) the day after a filing receipt is issued for the QWA; (b) the day specified in the QWA as the starting day; (c) the day the employee's employment starts. (2) A QWA for a new employee stops operating at the earlier of the following times-- (a) the end of the day when a refusal notice is issued for the QWA; (b) the time when a termination under section 198 takes effect; (c) the time when another QWA between the employer and employee starts to operate. (3) A QWA for an existing employee starts operating on the later of the following days-- (a) the day after an approval notice is issued for the QWA; (b) the day specified in the QWA as the starting day. (4) A QWA for an existing employee stops operating at the earlier of the following times-- (a) the time when a termination under section 198 takes effect; (b) the time when another QWA between the employer and employee starts to operate. 196 Bargaining agents (1) An employer or employee may appoint a person to be his or her bargaining agent for the making, approval, amendment or termination of a QWA. Example-- An employee may appoint an employee organisation to be the employee's bargaining agent. (2) When the employer proposes the QWA, the employer must inform the employee of his or her right under subsection (1). (3) The appointment of a bargaining agent must be written. (4) An employer or employee must not refuse to recognise a bargaining agent appointed by the other party if the employer or employee has been given a copy of the bargaining agent's instrument of appointment. (5) An employer or employee must not coerce, or attempt to coerce, the other party-- (a) to appoint, or not to appoint, a particular person as a bargaining agent; or (b) to terminate the appointment of a bargaining agent. 197 Amending a QWA (1) An employer and employee may make a written agreement (amendment agreement) amending a QWA. (2) The amendment agreement takes effect on the later of the following days-- (a) the day after an approval notice is issued for the amendment agreement; (b) the day specified in the amendment agreement as the date it takes effect. (3) Section 193 applies to the QWA as amended in the same way as it applied to the QWA before amendment. 198 Terminating a QWA (1) The employer and employee may at any time make a written agreement (termination agreement) to terminate the QWA. (2) The termination agreement takes effect at the later of the following times- - (a) the end of the day on which an approval notice is issued for the termination agreement; (b) the day specified in the termination agreement as the date it takes effect. (3) After the nominal expiry date of a QWA, the employer or employee may file a notice (termination notice) to terminate the QWA. (4) The termination notice takes effect at the end of 28 days after the party filing the termination notice gave notice to the other party of the filing of the termination notice. 199 Filing QWAs and ancillary documents (1) A QWA or ancillary document (document) may be filed with the registrar or chief inspector. (2) If the registrar or chief inspector is satisfied that the filing requirements for the document have been met, the registrar or chief inspector must issue a filing receipt to the person who filed it. (3) For a QWA, the registrar or chief inspector may issue a filing receipt only if it is filed within 14 days after the QWA date. (4) If the document is filed with the chief inspector, the chief inspector must immediately give it to the registrar. 200 Filing requirements (1) The filing requirements for a QWA are-- (a) the QWA must be signed and dated by each of the parties, and the signatures must be witnessed; and (b) the QWA must be accompanied by a declaration by the employer, declaring-- (i) the QWA complies with section 193; and (ii) the employer gave the employee a copy of an information statement at least the required number of days before the employee signed the QWA. (2) The chief inspector must prepare an information statement for subsection (1). (3) The information statement must include information about the following matters, but may include other information-- (a) entitlements under this Act; (b) occupational health and safety law; (c) services provided by the chief inspector; (d) bargaining agents. (4) The filing requirements for an amendment agreement are-- (a) the agreement must be signed and dated by each of the parties, and the signatures must be witnessed; and (b) the agreement must be accompanied by a declaration by the employer, declaring the QWA, as amended, complies with section 193. (5) The filing requirement for an extension agreement is the agreement must be signed and dated by each of the parties, and the signatures must be witnessed. (6) The filing requirement for a termination agreement is the agreement must be signed and dated by each of the parties, and the signatures must be witnessed. (7) The filing requirement for a termination notice is the notice must be signed and dated by the party filing the notice, and the signature must be witnessed. (8) The employer must provide any other information required under a regulation. 201 Employer's declaration must be accurate An employer must not, in a declaration filed for this part, make a statement that the employer knows, or ought reasonably to know, is false or misleading. 202 Additional approval requirements for QWA and ancillary documents (1) The additional approval requirements for a QWA are-- (a) the QWA complies with section 193; and (b) the employee received a copy of the QWA at least the required number of days before signing the QWA; and (c) the employer explained the effect of the QWA to the employee as soon as practicable after the employee first received a copy of it; and (d) the employee consented to making the QWA; and (e) if the employer did not offer a QWA in the same terms to all comparable employees--the employer did not act unfairly or unreasonably in not doing so. (2) The employee may consult with, or seek advice from, anyone about the QWA given to the employee under subsection (1)(b) and the copy is the property of the employee. (3) The additional approval requirements for an amendment agreement are-- (a) the QWA, as amended, complies with section 193; and (b) the employee received a copy of the amendment agreement at least 14 days before signing the amendment agreement; and (c) the employer explained the effect of the amendment agreement to the employee as soon as practicable after the employee first received a copy of it; and (d) the employee consented to making the amendment agreement; and (e) if the employer did not offer an amendment agreement in the same terms to all comparable employees who also have a QWA in the same terms--the employer did not act unfairly or unreasonably in not doing so. (4) The explanation of the effect of the QWA or amendment agreement mentioned in subsection (1) or (3) must have been done in a way that was appropriate, having regard to the employee's particular circumstances and needs. Example of employees with particular circumstances and needs-- 1 women 2 persons from a non-English speaking background 3 young persons 4 persons with limited literacy or numeracy skills (5) The additional approval requirement for an extension agreement is that the employee consented to making the extension agreement. (6) The additional approval requirement for a termination agreement is that the employee consented to making the termination agreement. (7) In this section-- comparable employee, for a QWA, means an employee of the employer who does the same kind of work as the employee who is a party to the QWA. 203 Approving QWA (1) The commission must approve a QWA for which a filing receipt has been issued if satisfied-- (a) the QWA passes the no-disadvantage test; and (b) the QWA meets the additional approval requirements; and (c) the QWA is not contrary to the public interest. (2) If the commission has concerns about whether the QWA passes the no- disadvantage test, the commission must-- (a) notify the employee of the concerns; and (b) give the reasons for them. (3) If the commission has concerns about whether the QWA passes the no- disadvantage test, but the concerns are resolved by-- (a) a written undertaking given by the employer and accepted by the commission; or (b) other action by the parties; the QWA is taken to pass the no-disadvantage test. (4) If the commission-- (a) is still not satisfied the QWA passes the no-disadvantage test; but (b) is satisfied that approving the QWA is not contrary to the public interest; the QWA is taken to pass the no-disadvantage test. (5) If the commission is not satisfied the QWA meets the additional approval requirements, the commission must refuse to approve the QWA. (6) In considering the public interest, the commission may consider-- (a) the relative bargaining power of the parties; and (b) the particular circumstances and needs of low-paid employees and any likely changes in award wages during the period of the QWA; and (c) the particular circumstances and needs of employees including women, persons from a non-English speaking background, young persons, apprentices, trainees and outworkers; and (d) anything else the commission considers relevant to the QWA. (7) For subsection (1), the commission may consider, but must not review, any relevant industrial instrument to decide whether the instrument provides for equal remuneration for all men and women employees covered by the instrument for work of equal or comparable value. 204 Approving amendment agreement (1) The commission must approve an amendment agreement for which a filing receipt has been issued if satisfied-- (a) the QWA, as amended, passes the no-disadvantage test; and (b) the agreement meets the additional approval requirements; and (c) the QWA is not contrary to the public interest. (2) If the commission has concerns about whether the QWA, as amended, passes the no-disadvantage test, but the concerns are resolved by-- (a) a written undertaking given by the employer and accepted by the commission; or (b) other action by the parties; the QWA, as amended, is taken to pass the no-disadvantage test. (3) If the commission-- (a) is still not satisfied the QWA passes the no-disadvantage test; but (b) is satisfied that approving the QWA is not contrary to the public interest; the QWA, as amended, is taken to pass the no-disadvantage test. (4) If the commission is not satisfied the amendment agreement meets the additional approval requirements, the commission must refuse to approve the amendment agreement. (5) In considering the public interest, the commission may consider-- (a) the relative bargaining power of the parties; and (b) the particular circumstances and needs of low-paid employees and any likely changes in award wages during the period of the agreement; and (c) the particular circumstances and needs of employees including women, persons from a non-English speaking background, young persons, apprentices, trainees and outworkers; and (d) anything else the commission considers relevant to the agreement. 205 Approving other ancillary documents (1) This section applies to the following ancillary documents-- (a) an extension agreement; (b) a termination agreement; (c) a termination notice. (2) The commission may approve the ancillary document only if satisfied the ancillary document meets the additional approval requirements for the document. 206 Commission must issue approval or refusal notice (1) If the commission approves a QWA or ancillary document, the commission must issue an approval notice to the employer. (2) If the commission refuses to approve a QWA or ancillary document, the commission must issue a refusal notice to the employer. (3) If the commission is not satisfied the QWA passes or is taken to pass the no-disadvantage test, the commission must issue a notice to that effect to the employee. (4) In each approval or refusal notice, the commission must identify the relevant or designated award that applies to the QWA. 207 Undertakings taken to be included in QWAs An undertaking accepted by the commission under this division is taken to be included in the QWA. 208 Commission to issue copies of approved QWAs and ancillary documents After a QWA or ancillary document is approved, the commission must issue to the employer a copy of the QWA or ancillary document, as approved. 209 When does a QWA pass the no-disadvantage test (1) A QWA passes the no-disadvantage test if it does not disadvantage the employee in relation to his or her employment conditions. (2) A QWA disadvantages the employee in relation to his or her employment conditions only if the commission considers its approval would result in a reduction in the employee's entitlements or protections. (3) Subsection (2) applies subject to sections 210 and 211. (4) If the president considers exceptional circumstances exist, the president may require the registrar to give the commission a report comparing the QWA with the employee's entitlements or protections. (5) In this section-- certified agreement means a certified agreement that, immediately before the initial day of the QWA, binds the employer. entitlements or protections means the entitlements or protections under-- (a) if there is a certified agreement--the certified agreement; or (b) if there is no certified agreement--a relevant award, a designated award, industrial agreement or an order under chapter 5, part 5; or (c) chapter 2, including as reviewed by a general ruling of the full bench, or chapter 3, part 4, division 1AA. 210 Special case--employee eligible for supported wage system (1) This section applies if a QWA provides for the payment of wages to an employee who is eligible for the supported wage system at a rate not less than the rate set in accordance with that system for the employee. (2) The agreement does not disadvantage the employee in relation to the employee's employment conditions only because of the reduction of the employee's wages. 211 Special case--employee undertaking approved apprenticeship or traineeship (1) This section applies if-- (a) a QWA provides for the payment of wages to an employee undertaking approved training (a training employee) in a particular trade, occupation or work, or a trade, occupation or work similar to the particular trade, occupation or work (the work); and (b) there is a relevant award, designated award or order providing for the payment of wages to employees undertaking benchmark training for the work. (2) The agreement is taken to disadvantage the training employee in the employee's employment conditions if the QWA provides for the payment of wages to the employee at a rate less than the rate payable to an employee undertaking the benchmark training (the benchmark employee) under the relevant award, designated award or order, as adjusted under subsection (3). (3) For subsection (2), the rate payable to a benchmark employee is to be adjusted to take into account the proportionate difference, as decided by the approving authority, between the productive time of a training employee and the productive time of a benchmark employee. (4) If the QWA adopts, as the qualification for a wage level, a criterion decided by the approving authority (the decided criterion) instead of a specified criterion applying under the relevant award, designated award or order (the award criterion), the award is taken, for this section, to have effect as if the decided criterion were substituted for the award criterion. (5) This section does not apply to a trainee bound by-- (a) the Training Wage Award--State; or (b) the National Training Wage Award 1994. (6) In this section-- benchmark training means training for an apprentice or trainee in a particular trade, occupation or work if the trade, occupation or work is recognised under an award or under an order made under chapter 5, part 5. 212 Deciding designated awards (1) This section applies if-- (a) an employer proposes to make a QWA with a person; and (b) there is no relevant award for the person. (2) The employer must apply to the commission for a decision under subsection (3). (3) On application, the commission must decide that an award (regulating employment conditions of employees engaged in a similar kind of work as the person under the QWA) is appropriate for deciding whether the QWA passes the no-disadvantage test. (4) The commission must inform the employer in writing of the commission's decision. 213 QWA's effect on awards, certified agreements or orders (1) A QWA, during its period of operation, operates to the exclusion of an award, or an order made under chapter 5, part 5, that would otherwise apply to the employee's employment. (2) A certified agreement or a determination under section 149, during its period of operation, prevails over a QWA to the extent of any inconsistency. (3) However, subsection (2) does not apply to a certified agreement if the agreement contains a QWA provision. (4) In this section-- QWA provision of a certified agreement means a provision that expressly allows a subsequent QWA-- (a) to operate to the exclusion of the certified agreement; or (b) to prevail over the certified agreement to a specified extent or to the extent of any inconsistency. 214 Successor employers bound (1) This section applies if-- (a) an employer is a party to a QWA; and (b) at a later time a new employer becomes the successor (whether or not immediate) of the whole or part of the business of the employer who is a party to the QWA. (2) From the later time-- (a) the new employer replaces the employer as a party to the QWA; and (b) the previous employer stops being a party to the QWA, to the extent it relates to the whole or part of the business; and (c) a reference in this part to the employer is a reference to the new employer, and ceases to refer to the previous employer, to the extent the context relates to the whole or part of the business. 215 Parties must not contravene QWA A party to a QWA must not contravene the QWA. 216 Conciliation for agreements The commission has the conciliation powers for a matter arising under this part that it would have under section 230 if that section applied to the matter instead of to industrial disputes. 217 Industrial action by party to QWA During the period of operation of a QWA before its nominal expiry date, a party to the QWA must not engage in industrial action in relation to the employment to which the QWA relates. 218 Penalties for contravening this part (1) A magistrate may, by order, impose a penalty on a person who contravenes a penalty provision. (2) The penalty can not be more than-- (a) for a corporation--135 penalty units; or (b) otherwise--27 penalty units. (3) An application for an order relating to a QWA or ancillary document may be made by-- (a) a party to the QWA or ancillary document; or (b) an inspector. (4) In this section-- penalty provision means section 196(2), (3), (4) or (5), 201, 215, 217, 222(1), 223(1) or (2) or 224(1) or (2). 219 Damages for contravention of QWA (1) A party to a QWA who suffers loss or damage because of a contravention of the QWA by the other party may recover the amount of the loss or damage in an Industrial Magistrates Court. (2) The action must be brought within 6 years after the date on which the cause of action arose. 220 Compensation to new employee for shortfall in entitlements (1) Subsection (3) applies if a QWA for a new employee stops operating because a refusal notice was issued and the amount worked out under paragraph (a) is less than the amount worked out under paragraph (b)-- (a) the total value of the entitlements to which the employee became entitled under the QWA for the period while it was in operation; (b) the total value of the entitlements to which the employee would have been entitled for that period under an award or agreement, if the QWA had not been made, in relation to the employment to which the QWA relates. (2) Subsection (3) applies if a QWA that has been approved for a new employee includes an undertaking by the employer under section 203 and the amount worked out under paragraph (a) is less than the amount worked out under paragraph (b)- - (a) the total value of the entitlements to which the employee became entitled under the QWA for the period before it was approved; (b) 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. (3) The employee is entitled to recover the shortfall from the employer in the commission or an Industrial Magistrates Court. 221 Injunctions The commission, on application by a party to a QWA, may grant an injunction requiring a person not to contravene, or to stop contravening, this part. 222 Hindering QWA negotiations (1) 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. (2) This section 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 Act. (3) In this section-- party to negotiations includes a bargaining agent. 223 Persons must not apply duress or make false statements in connection with QWA etc. (1) A person must not apply duress to an employer or employee in connection with a QWA or ancillary document. (2) A person must not knowingly make a false or misleading statement to someone else with the intention of persuading the other person to make, or not to make, a QWA or ancillary document. 224 Employer must give copy of documents to employee (1) As soon as practicable after receiving any of the following documents from the commission, registrar or chief inspector, the employer must give a copy of it to the employee-- (a) a filing receipt; (b) an approval notice or refusal notice; (c) a QWA or ancillary document, as approved. (2) The employer must give the employee any other document prescribed under a regulation within the period required under the regulation. 225 Intervention not permitted A person other than-- (a) a party to a QWA; or (b) a party's bargaining agent; or (c) the Minister; can not make submissions, or be heard, in relation to the filing, approval, amendment or termination of a QWA. 226 Reports and advice about development in making QWAs (1) If the Minister asks, the chief executive must prepare and give to the Minister a report about developments in the State in bargaining for the making of QWAs. (2) To enable the chief executive to prepare the report and generally to advise the Minister, the registrar must allow access to approved QWAs and ancillary documents to-- (a) the chief executive; or (b) the chief executive's agent. 227 Evidence (1) The registrar may 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. (2) The registrar may issue a certificate stating-- (a) specified QWAs or ancillary documents are the only QWAs or ancillary documents that were filed, before a specified date, in relation to a specified employer and employee; or (b) a copy of a specified approved QWA or ancillary document was issued on a specified day; or (c) a filing receipt, approval notice or refusal notice was issued for a specified QWA or ancillary document on a specified day. (3) The certificate may be given only to a person who is or was a party to the document to which the certificate relates. (4) In all courts and proceedings-- (a) a certified copy of an approved QWA or ancillary document is evidence of the QWA or ancillary document; and (b) a certificate issued by the registrar under subsection (2) is evidence of the matters stated in the certificate. (5) A document that purports to be a certified copy, or certificate, mentioned in subsection (4) is taken to be the copy or certificate, unless the contrary is proved. 228 Signature for corporation A QWA or ancillary document may be signed for a corporation by a properly authorised officer of the corporation and need not be made under the corporation's seal. 229 Notice of industrial dispute (1) Subsection (2) applies if an industrial dispute-- (a) exists between-- (i) an employer organisation or employer; and (ii) an employee organisation or employee; and (b) remains unresolved after the parties have genuinely attempted to settle the dispute. (2) Each party to the dispute must immediately give the registrar notice of the dispute. (3) The notice-- (a) may be given by letter, telex, fax, email, or other means of written communication; and (b) must state-- (i) the names of the parties to the dispute; and (ii) the place where the dispute exists; and (iii) the subject matter of the dispute; and (iv) anything else required under the rules. (4) If the Minister is aware an industrial dispute exists, the Minister may notify the commission or registrar of the dispute. 230 Action on industrial dispute (1) This section applies if-- (a) notice of a dispute has been given by a party under section 229 (2); or (b) notice of a dispute has been given by the Minister under section 229(4) and the commission considers it is in the public interest to take action under this section; or (c) whether or not a notice has been given under section 229--the commission considers it is in the public interest to take action under this section. (2) Subsection (1)(c) applies irrespective of whether the parties are attempting to resolve the dispute. (3) The commission may take the steps it considers appropriate for the prevention or prompt settlement of the dispute, by-- (a) conciliation in the first instance; and (b) if the commission considers conciliation has failed and the parties are unlikely to resolve the dispute--arbitration. (4) Without limiting subsection (3), the commission may do 1 or more of the following-- (a) direct the industrial action to stop or not happen; (b) make orders, or give directions, of an interlocutory nature; (c) exercise the commission's powers under section 277 (whether or not application under that section has been made) to grant an interim injunction; (d) make another order or exercise another power the commission considers appropriate for the prevention or prompt settlement of the dispute. (5) For proceedings for the dispute-- (a) the commission may name a party to the dispute as having carriage of the proceedings; and (b) the party named has the carriage of the proceedings accordingly. (6) This section does not affect the operation of an industrial instrument that imposes a duty on a party to the instrument in relation to industrial disputes. 231 Mediation by commission The commission may act as mediator in an industrial cause, whether or not it is within the jurisdiction of the commission-- (a) on the request of the parties directly involved in the cause; or (b) if the commissioner is satisfied mediation is desirable in the public interest. 232 Compulsory conference (1) This section applies if the commission, when taking action under section 230, considers that holding a conference is desirable to prevent or settle the industrial dispute. (2) The commission may, by attendance notice, require a person to attend a conference at a stated time and place. (3) A person may be required to attend even though not directly involved in the dispute, if the commission considers the person's presence would be conducive to the prevention or prompt settlement of the dispute. (4) A person required to attend must-- (a) attend the conference at the stated time and place; and (b) continue to attend as directed by the commission. Maximum penalty--40 penalty units. (5) A person required to attend under subsection (3) is entitled to be paid by the State an amount certified by the commission as reasonable compensation for the person's expenses and loss of time. (6) At the commission's discretion, a conference may be held-- (a) in public or private; or (b) partly in public and partly in private. 233 Enforcing commission's orders (1) The commission may direct an order about an industrial dispute to-- (a) an organisation; or (b) a person in a capacity as an officer or agent of an organisation; or (c) any other person. (2) If an order may be directed to an organisation or a person, the commission may direct the order to the person only after considering whether it would be more appropriate to direct the order to the organisation. (3) An order must-- (a) if the order is made against a person--state the person's name; and (b) state a time for complying with the order; and (c) direct any of the following persons to file an affidavit with the registrar within a stated time-- (i) the organisation or person; (ii) the party to the proceedings who sought the order; (iii) any other party to the proceedings the commission considers appropriate. (4) An affidavit under subsection (3)(c) must state whether there has been compliance with the order and, if the order has not been complied with, the steps the person is aware of that have been taken to comply. (5) The commission may extend a time stated under subsection (3)(b) or (c). (6) At the end of the time stated for filing an affidavit, or the time as extended by the commission, the registrar must-- (a) examine all affidavits filed; and (b) if all affidavits required to be filed have not been filed in the stated time--make all necessary further inquiries; to decide whether there has been substantial compliance with the order. (7) If the registrar is not satisfied that there has been substantial compliance with the order, the registrar must issue a notice under the rules calling on the organisation or person to whom the order was directed to show cause to the full bench at a stated time why the organisation or person should not be dealt with under section 234. (8) In this section-- full bench means the full bench constituted by the president and 2 or more members. 234 Remedies on show cause notice (1) If an organisation issued with the notice does not show cause at the stated time, the full bench may do 1 or more of the following-- (a) impose on the organisation a penalty of not more than 1000 penalty units; (b) amend an award or certified agreement to which the organisation is a party; (c) if the organisation is an employee organisation--suspend the date of operation of a wage increase that would otherwise be payable to members of the organisation or to a class of the members; (d) change the organisation's rules to exclude from eligibility for membership persons belonging to a particular class or section of the membership; (e) make the orders it considers appropriate-- (i) restricting the use of the organisation's property; or (ii) controlling the organisation's property to ensure the restrictions are complied with; (f) suspend the organisation's registration for a stated period; (g) deregister the organisation; (h) make the other orders it considers appropriate-- (i) to secure the organisation's compliance with the commission's order; or (ii) to punish the organisation for not complying with the commission's order; (i) order the organisation to pay the costs of the show cause proceedings. (2) If a person issued with the notice does not show cause at the stated time, the full bench may do 1 or more of the following-- (a) impose on the person a penalty of not more than 40 penalty units; (b) make the other orders it considers appropriate-- (i) to secure the person's compliance with the commission's order; or (ii) to punish the person for not complying with the commission's order; (c) order the person to pay the costs of the show cause proceedings. (3) All persons concerned must comply with an order or direction made or given by the full bench. (4) In this section-- organisation includes a branch of the organisation. stated time means at the time stated in the notice to show cause under section 233(7), or at a time to which the proceedings are adjourned. 235 Secret ballot on strike action (1) This section applies if-- (a) a strike happens; or (b) the commission, or a person applying to the commission, considers a strike is likely to happen. (2) The commission may act under subsection (4)-- (a) of its own initiative; or (b) on application by an employer or employer organisation; or (c) on application-- (i) by or on behalf of 5% of the employees engaged in or on the calling, enterprise, establishment or project concerned; or (ii) by 250 employees; whichever is less, but being, in any case, at least 4. (3) The commission must act under subsection (4)-- (a) on application by an employee organisation; or (b) if directed by the Minister. (4) To find out the number of employees or members who favour the strike, the commission may direct the registrar to conduct a secret ballot of-- (a) the employees engaged in or on the calling, enterprise, establishment or project concerned; or (b) the members of an employee organisation engaged in or on the calling, enterprise, establishment or project concerned. (5) The registrar must publish the result of the secret ballot in a newspaper circulating in the locality concerned. 236 Effect of ballot adverse to strike (1) Subsection (2) applies if-- (a) when a secret ballot was conducted under section 235(4)-- (i) a strike exists; or (ii) a strike appeared likely to happen, and a strike happens for the same issue within 1 month after the ballot result is published under section 235(5); and (b) the ballot shows that a majority of employees or members who voted in the ballot is not in favour of the strike. (2) The registrar must advertise a date (the end date), not more than 7 days after the date of publication, on or before which the employees or members who are on strike must discontinue the strike. (3) The advertisement-- (a) must be in a newspaper circulating in the locality concerned; and (b) may be included in the advertisement published under section 235 (5). (4) The employees or members must discontinue the strike on or before the end date. (5) An employee or member who does not is taken to have terminated, from the end date, the employment in which the employee or member was engaged when the strike commenced, unless the employee or member has a reasonable excuse. (6) Disagreement by a person with the result of the ballot is not a reasonable excuse. 237 Indemnity against agent's unauthorised actions An organisation or association of persons is not liable for anything said or done by its agent, during or in connection with industrial action, if-- (a) the agent acted without the knowledge of the governing body of the organisation or association; and (b) the governing body could not, by the exercise of reasonable diligence, have prevented the action. 238 Payments for strikes can not be compelled (1) An employer may pay, or refuse to pay, an employee for a period when the employee engages in a strike. (2) An employee must not organise or engage in, or threaten to organise or engage in, a strike against an employer with intent to coerce the employer to make the payment. (3) An employee organisation, or an officer, member or employee of the organisation, must not organise or engage in, or threaten to organise or engage in, a strike against an employer with intent to coerce the employer to make the payment. (4) For subsection (3), action is taken to have been done by an organisation if it is done by-- (a) the organisation's management committee; or (b) an officer, employee or agent of the organisation acting in that capacity; or (c) a member or group of members of the organisation acting under the organisation's rules; or (d) a member of the organisation, who performs the function of dealing with an employer on behalf of the member and other members of the organisation, acting in that capacity. (5) Subsection (4)(c) and (d) does not apply if any of the following persons has taken reasonable steps to prevent the action-- (a) the organisation's management committee; (b) a person authorised by the committee; (c) an officer of the organisation. (6) A contravention of subsection (2) or (3) is not an offence. Editor's note-- See section 239 for the orders the commission may make for a contravention of this section. (7) In this section-- strike does not include the failure to perform work in excess of that required under a relevant industrial instrument. 239 Orders the commission may make (1) An application may be made to the commission for orders under this section for a contravention of section 238. (2) The application may be made by-- (a) the Minister; or (b) a person who has an interest in the matter; or (c) for a contravention of section 238(2) or (3)--the employer; or (d) someone else prescribed under a regulation. (3) A regulation prescribing persons for subsection (2)(d) may limit its application to stated circumstances. (4) The commission may, if it considers it appropriate in all the circumstances, make 1 or more of the following orders-- (a) an order imposing on a person who contravenes section 238 a penalty of not more than 135 penalty units; (b) an order requiring a person who contravenes section 238(2) or (3) to pay an employer compensation of the amount the commission considers appropriate; (c) an injunctive order (including an interim injunction), and any other order, the commission considers necessary to stop the contravention or remedy its effects; (d) another consequential order. 240 Commission not to deal with claims for payments for strikes (1) The commission can not deal with a claim for the making of a payment to employees for a period when the employees engage in a strike under section 238. (2) Subsection (1) applies to a claim for a period before or after-- (a) the making of the claim; or (b) the commencement of this section. 241 Right to refuse to work if imminent health or safety risk Nothing in this Act prevents an employee from refusing to perform work if-- (a) the refusal is based on a reasonable concern by the employee about an imminent risk to his or her health or safety; and (b) the employee does not unreasonably contravene a direction of his or her employer to perform other available work (whether at the same or another workplace) that is safe and appropriate for the employee to perform. 242 Continuance The Industrial Court, as formerly established as a superior court of record in Queensland, is continued in existence as the Industrial Court of Queensland (the court). 242A Official seal (1) The court has an official seal. (2) All courts and persons acting judicially must take judicial notice of the official seal affixed to any document and must presume, until the contrary is proved, that it was properly affixed. 242B Finances of court The court is part of the department for the purposes of the Financial Accountability Act 2009. 243 President of the court (1) The Governor in Council may appoint a person as president of the court if the person is-- (a) a Supreme Court judge; or (b) a lawyer of at least 5 years standing who is not a Supreme Court judge (a non-judicial appointee). (2) The Governor in Council may appoint the person-- (a) if the person is a Supreme Court judge--by gazette notice; or (b) if the person is a non-judicial appointee--by commission. (3) A non-judicial appointee can not be-- (a) a member of the Executive Council or Legislative Assembly; or (b) a director of a corporation engaged in a calling; or (c) an auditor of a corporation engaged in a calling or of a business; or (d) a person who participates in any capacity in the management of-- (i) a corporation engaged in a calling; or (ii) a business. 244 When a Supreme Court judge is appointed as president (1) The appointment of, or service by, a Supreme Court judge as president does not affect-- (a) the judge's tenure of office as a judge; or (b) the judge's rank, title, status, precedence, salary, annual or other allowances or other rights or privileges as the holder of his or her office as a judge. (2) The Supreme Court judge's service as president is taken to be service as a Supreme Court judge for all purposes. (3) The appointment of, or service by, a Supreme Court judge as president does not entitle the judge to any salary or allowance in addition to the judge's salary or allowance as the holder of his or her office as a judge. (4) However, the Supreme Court judge is entitled to be paid expenses reasonably incurred by the judge in performing the functions of the office of president. (5) This section applies despite any other Act. 245 When president holds office (1) The president holds office until-- (a) if the president is a Supreme Court judge-- (i) the term stated in the gazette notice appointing the president ends; or (ii) the president resigns by signed notice given to the Governor; or (iii) the president stops being a Supreme Court judge; or (b) if the president is a non-judicial appointee-- (i) the president turns 70; or (ii) the president resigns by signed notice given to the Governor; or (iii) the president becomes a member of the Executive Council or Legislative Assembly; or (iv) the president becomes a person mentioned in section 243(3)(b) to (d), other than with the Minister's written approval; or (v) the president is removed from office under subsection (2). (2) If the president is a non-judicial appointee, the Governor may remove the president from office on an address of the Legislative Assembly for-- (a) mental or physical incapacity; or (b) misbehaviour. (3) If the president stops holding office because of subsection (1)(a) or (b) (i) or (ii) while hearing a matter, the Governor in Council may, without reappointing the person as president, continue the person in office for the time necessary to enable the hearing to be completed. (4) A person continued in office under subsection (3) may exercise the jurisdiction and powers of the court necessary or convenient for the hearing to be completed. (5) The Governor in Council may, by gazette notice, reappoint a president if the president's term of office ends under subsection (1)(a)(i). 246 Acting president of the court (1) This section applies if the president temporarily can not perform the functions of office. (2) The Governor in Council may, by gazette notice, appoint the following persons to act as the president-- (a) if the president is a Supreme Court judge--a person who is a Supreme Court judge; (b) if the president is a non-judicial appointee--the vice president. (3) A person who has acted as president may attend sittings of the court for the purpose of giving a decision in, or otherwise completing, proceedings that were heard by the person while acting as president. (4) The person's decision is taken to be the president's decision in the proceedings. (5) The appointment of, or service by, a Supreme Court judge as acting president does not affect-- (a) the judge's tenure of office as a judge; or (b) the judge's rank, title, status, precedence, salary, annual or other allowances or other rights or privileges as the holder of his or her office as a judge. (6) The Supreme Court judge's service as acting president is taken to be service as a Supreme Court judge for all purposes. (7) The appointment of, or service by, a Supreme Court judge as acting president does not entitle the judge to any salary or allowance in addition to the judge's salary or allowance as the holder of his or her office as a judge. (8) However, the Supreme Court judge is entitled to be paid expenses reasonably incurred by the judge in performing the functions of the office of acting president. (9) Subsections (5) to (8) apply despite any other Act. 246A Functions of president The president is responsible for ensuring that the court, the commission and the registry perform their functions and exercise their powers in a way that-- (a) is efficient; and (b) adequately serves the needs of employers and employees throughout Queensland. 247 Constitution of court The court is constituted by the president sitting alone. 248 Court's jurisdiction (1) The court may-- (a) perform all functions and exercise all powers prescribed for the court by this or another Act; and (b) hear and decide cases stated to it by the commission; and (c) hear and decide an offence against this Act, other than an offence for which jurisdiction is expressly conferred on a magistrate; and (d) hear and decide appeals from an industrial magistrate's decision in proceedings for-- (i) an offence against this Act; or (ii) recovery of damages, or other amounts, under this Act; and (e) exercise the jurisdiction and powers of the Supreme Court to ensure, by prerogative order or other appropriate process-- (i) the commission and magistrates exercise their jurisdictions according to law; and (ii) the commission and magistrates do not exceed their jurisdictions. (2) In proceedings, the court may-- (a) make the decisions it considers appropriate, irrespective of specific relief sought by a party; and (b) give directions about the hearing of a matter. (3) The court's jurisdiction is not limited, by implication, by a provision of this or another Act. 249 Court's interpretation The court's interpretation of a provision of this Act, an industrial instrument or permit binds-- (a) the commission; and (b) magistrates; and (c) organisations and persons who are subject to this Act, or bound by the industrial instrument or permit. 250 Court may refuse to proceed (1) This section applies if proceedings before the court relate to an industrial instrument that exists or is sought in the proceedings. (2) The court may refuse to hear and decide the proceedings if any of the employees who are, or would be, bound by the instrument are-- (a) involved in an industrial dispute; or (b) contravening this Act or a decision. (3) Subsection (2) applies whether or not the employees are employees whose employment may be affected by the decision. 251 Contempt of court (1) The court has all the protection, powers, jurisdiction and authority of the Supreme Court for a contempt of court. (2) The court must comply with the Uniform Civil Procedure Rules relating to contempt of court, with necessary changes. (3) The registrar or another officer of the court may apply to the court for an order that a person be committed to prison for contempt of court. (4) The court's jurisdiction to punish a contempt of the court may be exercised on the president's own initiative. (5) The court has jurisdiction to punish an act or omission as a contempt of the court, although a penalty is prescribed for the act or omission. 252 President's annual report (1) As soon as practicable after the end of each financial year, the president must prepare and give to the Minister a report for the year on-- (a) the operation of this Act; and (b) in particular, the working of the court, commission and registry. (1A) The registrar must prepare, and give to the president, a report for the year on the working of the registry for inclusion in the president's report under subsection (1). (2) The report must also contain summaries of significant decisions and interpretations about awards, certified agreements, industrial agreements, QWAs and ancillary documents. (3) The Minister must table a copy of the report in the Legislative Assembly within 14 days after the Minister receives it. 255 Continuance The Queensland Industrial Relations Commission (the commission), as formerly established as a court of record, is continued in existence. 255A Official seal (1) The commission has an official seal. (2) All courts and persons acting judicially must take judicial notice of the official seal affixed to any document and must presume, until the contrary is proved, that it was properly affixed. 255B Finances of commission The commission is part of the department for the purposes of the Financial Accountability Act 2009. 256 Composition (1) The commission consists of-- (a) the president; and (b) the following persons (commissioners)-- (2) The full bench of the commission (full bench) is constituted by-- (a) for chapter 12, part 16 or for the hearing of an appeal--the president and 2 or more commissioners; or (b) otherwise--3 or more members. (3) The commission is constituted by a commissioner sitting alone. (4) More than 1 full bench or commission may sit at the same time. (5) The commission's jurisdiction, or existence, is not affected by a vacancy in any office of the commission. 257 President of the commission The president of the court is also the president of the commission. 258 Vice president of the commission (1) The Governor in Council may appoint a person as vice president of the commission-- (a) if the person is not already a commissioner--by commission; or (b) if the person is already a commissioner--by gazette notice. (2) The person must be a person who-- (a) is a lawyer of at least 5 years standing; and (b) has the experience, qualifications and standing mentioned in section 259(2). 258A Deputy presidents of the commission (1) The Governor in Council may appoint a person as a deputy president of the commission-- (a) if the person is not already a commissioner--by commission; or (b) if the person is already a commissioner--by gazette notice. (2) The person must be a person who has the experience, qualifications and standing mentioned in section 259(2). 259 Commissioners (1) The Governor in Council may appoint a person as a commissioner by commission. (2) The person must have-- (a) a high level of experience in-- (i) business or industry; or (ii) an organisation or employer association or a State peak council; or (iii) a department of government; or (iv) an agency, authority, commission, corporation, instrumentality, office, or other entity, established under an Act or under State authorisation for a public or State purpose; or (b) suitable experience, qualifications and standing in the community to be appointed as a commissioner. 259A Commissioner may be appointed ombudsman (1) A commissioner may also be appointed as the ombudsman under chapter 8A. (2) The commissioner's service as ombudsman is taken to be service as a commissioner for all purposes. (3) However, while holding appointment as ombudsman, a commissioner can not perform the functions of office of a commissioner. (4) The appointment of, or service by, a commissioner as ombudsman does not entitle the commissioner to any salary or allowance in addition to the commissioner's salary or allowance as the holder of his or her office as a commissioner. (5) However, the commissioner is entitled to be paid expenses reasonably incurred by the commissioner in performing the functions of the office of ombudsman. 260 When commissioner holds office (1) A commissioner holds office until-- (a) the commissioner is appointed as the president; or (b) the commissioner turns 70; or (c) the commissioner resigns by signed notice given to the Governor; or (d) the commissioner becomes a member of the Executive Council or Legislative Assembly; or (e) the commissioner becomes a person mentioned in section 262(b), other than with the Minister's written approval; or (f) the commissioner is removed from office under section 263. (2) However, if a commissioner stops holding office because of subsection (1) (b) or (c) while investigating or hearing a matter, the Governor in Council may, without reappointing the person as a commissioner, continue the person in office for the time necessary to enable the investigation or hearing to be completed. (3) The person continued in office may exercise the jurisdiction and powers of the commission necessary or convenient for the investigation or hearing to be completed. 261 Acting vice president, deputy president or other commissioner (1) This section applies if the vice president, a deputy president or another commissioner temporarily can not perform the functions of office. (2) The Governor in Council may appoint a person to act as the vice president, deputy president or other commissioner by gazette notice. 262 Restrictions on appointment The following persons can not be appointed as commissioners-- (a) a member of the Executive Council or Legislative Assembly; (b) a person who-- (i) acts as director of a corporation engaged in a calling; or (ii) acts as auditor of a corporation engaged in a calling or of a business; or (iii) participates in any capacity in the management of a corporation engaged in a calling; or (iv) participates in any capacity in the management of a business. 263 Removal of commissioners from office The Governor may remove a commissioner from office, on an address of the Legislative Assembly, for-- (a) mental or physical incapacity; or (b) misbehaviour. 264 Administrative responsibilities for the commission and registry (1) In addition to performing the functions of a member, the president is responsible for the administration of the commission and registry, and the orderly and expeditious exercise of the commission's jurisdiction and powers. (2) Without limiting subsection (1), the president is responsible for determining the member or members who is or are to constitute the commission, including a full bench of the commission, for a matter or proceeding. (3) The president has the power to do all things necessary or convenient to be done to perform responsibilities under subsection (1) or (2). (4) The president is to be assisted by the vice president in performing responsibilities under subsection (1) or (2). (4A) The president may delegate a power under subsection (3)-- (a) to the vice president; or (b) if the vice president is not available--to 1 or more deputy presidents. (5) A commissioner must comply with a direction of the president, the vice president or a deputy president given for the performance of responsibilities under subsection (1) or (2). (6) The president must assign an industry or group of industries to a panel of members. (7) The powers of the commission in relation to that industry, other than the powers of the full bench, may only be exercised by-- (a) a member of the panel; or (b) another member of the commission to whom the president has assigned a particular matter. (8) If practicable, a panel must consist of at least 1 presidential member and 1 commissioner. (9) A member of the commission may be a member of more than 1 panel. 265 Commission's jurisdiction (1) The commission may hear and decide the following matters-- (a) all questions of law or fact brought before it or that it considers expedient to hear and decide for the regulation of a calling; (b) all questions-- (i) arising out of an industrial matter; or (ii) involving deciding the rights and duties of a person in relation to an industrial matter; or (iii) it considers expedient to hear and decide about an industrial matter; (c) an industrial dispute, referred to the commission by a member who has held a conference under this Act at which no agreement has been reached; (d) all appeals properly made to it under this or another Act; (e) all matters committed to the commission by this or another Act. (2) The commission may regulate a calling by an award-- (a) on application by an organisation, an employer, or 20 employees (who are not members of an employee organisation and not covered by an award) in a calling; or (b) on application by the Minister; or (c) of its own initiative. (3) The commission-- (a) may hold an inquiry into or about an industrial matter on application by an interested person or on its own initiative; and (b) must hold an inquiry into or about an industrial matter if the Minister directs. (4) The commission must report the result of the inquiry, and make recommendations, to the Minister. (5) The commission may consolidate into 1 award all awards binding or affecting an employer or class of employer in a calling, or the members of an organisation employed by the same employer or class of employer-- (a) on application by an organisation or an employer; or (b) by direction of the Minister. (6) When exercising power under subsection (5), the commission may make the amendments of the award it considers expedient to make to effect the consolidation. (7) No provision of this or another Act limits, by implication, the commission's jurisdiction. (8) In this section-- class includes a section of a class. 266 Commission to prevent discrimination in employment In exercising a power, the commission must not allow discrimination in employment. 267 Commission's jurisdiction is exclusive The original and appellate jurisdiction conferred on the commission by an Act is exclusive of the jurisdiction of the Supreme Court or another court or tribunal, unless otherwise prescribed under this Act. 268 Commission may refuse to proceed (1) This section applies if proceedings before the commission relate to an industrial instrument that exists or is sought in the proceedings. (2) The commission may refuse to hear and decide the proceedings if any of the employees who are, or would be, bound by the instrument are-- (a) involved in an industrial dispute; or (b) contravening this Act or a decision. (3) Subsection (2) applies whether or not the employees are employees whose employment may be affected by the decision of the proceedings. 269 President to consider efficiencies that may be achieved by using dual commissioners When administering the commission, the president must consider-- (a) the improved efficiency of the commission; and (b) in particular, the improved cooperation between the commission and the Australian commission; that may be achieved by the commission's functions and powers being performed and exercised, for a particular matter, by a dual commissioner. 270 Reallocation of commission's work The president may reallocate the matter of proceedings before a commission constituted by 1 or more of the members to a commission constituted by-- (a) the same member or members together with another member or other members; or (b) a different member or different members. without re-hearing evidence The commission to which the matter is reallocated may continue to hear and decide the matter, without re-hearing evidence given before the reallocation. 272 Decision of full bench A decision of the full bench is the decision of the majority of its members. 273 Commission's functions (1) The commission's functions include the following-- (a) establishing and maintaining a system of non-discriminatory awards that provide fair wages and employment conditions; (b) supervising the bargaining of agreements; (c) certifying agreements; (d) approving QWAs; (e) resolving disputes by conciliation of industrial matters and, if necessary, by arbitration or making an order; (f) making awards; (g) resolving disputes in the negotiation of agreements-- (i) by conciliation; or (ii) by arbitration, including by the making of determinations; (h) resolving disputes over union coverage by making representation orders; (ha) resolving disputes by performing the functions conferred on the commission under a referral agreement; (i) resolving other disputes that threaten to harm the community or the economy by conciliation and, if necessary, by arbitration; (j) dealing with-- (i) applications for orders under section 85C, 278 or 408F; or (ii) claims relating to dismissals; (k) making declarations about industrial matters. (2) The commission must perform its functions in a way that-- (a) furthers the objects of this Act; and (b) avoids unnecessary technicalities and facilitates the fair and practical conduct of proceedings under this Act. conferred by agreement of parties to disputes (1) This section applies if-- (a) there is an industrial dispute between-- (i) an employee organisation; and (ii) 1 or more employers or employer organisations; and (b) the parties to the dispute have agreed in writing (the referral agreement) that the dispute, or disputes of a class to which the dispute belongs, is or are to be resolved by the commission. (2) A party to the dispute may apply to the commission for the commission to perform the functions about resolving the dispute that are conferred on the commission under the referral agreement (the dispute resolution functions). (3) If an application is made under subsection (2), the commission may perform the dispute resolution functions. (4) Without limiting subsections (2) and (3), the dispute resolution functions may include 1 or more of the following-- (a) conciliating the dispute; (b) arbitrating the dispute; (c) granting a remedy or other relief of the kind provided for under chapter 3, part 2 or chapter 8, part 2, division 4; (d) deciding any other issue or question arising in the dispute. (5) A decision made by the commission in performing the dispute resolution functions does not bind the parties to the dispute unless the referral agreement provides for the decision to bind the parties. (6) This section does not limit a function or power of the commission under any other provision of this Act to conciliate, arbitrate or otherwise decide a matter. 274 General powers (1) The commission has the power to do all things necessary or convenient to be done for, or in connection with, the performance of its functions. (2) Without limiting subsection (1), the commission in proceedings may-- (a) give directions about the hearing of a matter; or (b) make a decision it considers appropriate, irrespective of the specific relief sought by a party; or (c) make an order it considers appropriate. (3) The commission may, by general order or for a particular case, delegate to the registrar-- (a) the working out of a decision of the commission; or (b) a function relating to the decision, including, for example-- (i) the giving of directions; or (ii) the making of orders; or (iii) the preparation of rosters and schedules; or (iv) a similar function it considers appropriate. (4) The full bench may, to assist it in the appropriate resolution of proceedings-- (a) refer the whole or part of a question or matter before it to the commission-- (i) for investigation and report to the full bench; or (ii) for the other action it decides; or (b) direct 1 or more of its members to carry out a specified investigation or inspection and to report on it to the full bench. (5) A member to whom a reference is made or a direction is given must comply with the reference or direction. 274A Power to make declarations (1) The commission may, on application, make a declaration about an industrial matter. (2) The commission may make the declaration whether or not consequential relief is or could be claimed. (3) The application may be made by-- (a) a person who may be directly affected by the declaration; or (b) an inspector; or (c) an organisation of employees or employers of which a person mentioned in paragraph (a) is a member, if it is acting with the person's written consent; or (d) an organisation of employees or employers who may be directly affected by the declaration. (4) Subject to chapter 9, a declaration made by the commission under this section is binding in any proceeding under this Act in relation to the issue determined by the declaration. 275 Power to declare persons to be employees or employers (1) The full bench may, on application by an organisation, a State peak council or the Minister, make an order declaring-- (a) a class of persons who perform work in an industry under a contract for services to be employees; and (b) a person to be an employer of the employees. (2) The full bench may make an order only if it considers the class of persons would be more appropriately regarded as employees. (3) In considering whether to make an order, the full bench may consider-- (a) the relative bargaining power of the class of persons; or (b) the economic dependency of the class of persons on the contract; or (c) the particular circumstances and needs of low-paid employees; or (d) whether the contract is designed to, or does, avoid the provisions of an industrial instrument; or (e) whether the contract is designed to, or does, exclude the operation of the Queensland minimum wage; or (f) the particular circumstances and needs of employees including women, persons from a non-English speaking background, young persons and outworkers; or (g) the consequences of not making an order for the class of persons. (4) In this section-- contract includes-- (a) an arrangement or understanding; and (b) a collateral contract relating to a contract. industrial instrument includes an award or agreement made under the Commonwealth Act. 276 Power to amend or void contracts (1) On application, the commission may amend or declare void (wholly or partly) a contract if it considers-- (a) the contract is-- (i) a contract of service that is not covered by an industrial instrument; or (ii) a contract for services; and (b) the contract is an unfair contract. (1A) The commission must not-- (a) amend a contract (whether made before or after the commencement of this subsection) to include an accident pay provision; or (b) declare a contract (whether made before or after the commencement of this subsection) wholly or partly void, because it does not contain an accident pay provision. (2) In deciding whether to amend or declare void a contract, or part of a contract, the commission may consider-- (a) the relative bargaining power of the parties to the contract and, if applicable, anyone acting for the parties; or (b) whether any undue influence or pressure was exerted on, or any unfair tactics were used against, a party to the contract; or (c) an industrial instrument or this Act; or (d) the Queensland minimum wage; or (e) anything else the commission considers relevant. (3) An application may be made by-- (a) a party to the contract; or (b) an inspector, for the party required under the contract to provide services; or (c) an organisation of employees or employers of which a party is, or has applied to become, a member, if it is acting with the party's written consent. (4) The commission may consider a contract to be an unfair contract if it considers the contract-- (a) was an unfair contract when it was entered into; or (b) became an unfair contract after it was entered into because of the conduct of the parties, or a variation to the contract or for any other reason it considers sufficient. (5) The commission may make an order it considers appropriate about payment of an amount for a contract amended or declared void. (6) A person can not make an application under this section if-- (a) an application has been made under section 74 for the same matter; or (b) the person-- (i) is not a public service officer employed on tenure under the Public Service Act 2008; and (ii) has an annual wage of more than $68000 or a greater amount stated in, or worked out in a way prescribed under a regulation. (7) In this section-- accident pay provision means a provision for accident pay, or other payment, on account of a worker sustaining an injury. contract includes-- (a) an arrangement or understanding; and (b) a collateral contract relating to a contract. industrial instrument includes an award or agreement made under the Commonwealth Act. injury means an injury under the Workers' Compensation and Rehabilitation Act 2003. unfair contract means a contract that-- (a) is harsh, unconscionable or unfair; or (b) is against the public interest; or (c) provides, or has provided, a total remuneration less than that which a person performing the work as an employee would receive under an industrial instrument or this Act; or (d) is designed to, or does, avoid the provisions of an industrial instrument. worker means a worker under the Workers' Compensation and Rehabilitation Act 2003. 277 Power to grant injunctions (1) The commission may, on application, grant the injunctive order it considers appropriate-- (a) to compel compliance with an industrial instrument, a permit or this Act; or (b) to restrain a contravention, or continuance of a contravention, of an industrial instrument, a permit or this Act. (2) An application may be made by-- (a) a party to industrial action or an industrial dispute; or (b) a person who is, or is likely to be, directly affected by industrial action or an industrial dispute; or (c) the registrar; or (d) the chief inspector; or (e) an inspector. (3) An application by an organisation must be under the organisation's seal and signed by the organisation's president and secretary. (4) The commission may direct the injunctive order to-- (a) the officers or members of an organisation generally; or (b) particular officers or members of an organisation; or (c) a particular employer; or (d) a particular employee. (5) A person to whom the order is directed must comply with the order after the person has received notice of it. (6) The commission may decide the form of the notice and the way the order is to be served. (7) Without limiting subsection (6), the commission may order substituted service of the order by advertisement or otherwise. (8) If the order is directed to an organisation, the organisation and each officer of the organisation must ensure the officers and members of the organisation comply with the order. (9) If the officers or members, or a substantial number of the officers or members, of an organisation to whom an injunctive order is directed, contravene the order, the organisation and each officer of the organisation commit an offence, namely, the offence of failing to ensure the organisation complies with the order. (10) It is a defence to a prosecution for an offence against subsection (9) for the organisation or officer to prove that it, or the officer, took all reasonable steps to ensure the officers or members complied with the order. (11) The commission can not grant an injunctive order for a proposed contravention of section 73, 83, 87, 90 or 90A. (12) In this section-- injunctive order means an order in the nature of a mandatory or restrictive injunction. organisation includes a branch of the organisation. 278 Power to recover unpaid wages and superannuation contribution etc. (1) An application may be made to the commission for an order for payment of-- (a) an employee's unpaid wages; or (b) an apprentice's unpaid tool allowance under section 138; or (c) remuneration lost by an apprentice or trainee because the employer has contravened section 391(2); or (d) contributions to the approved superannuation fund payable for an eligible employee that are unpaid; or (e) remuneration unpaid because a person contravened an order mentioned in section 140A(1). (2) An application can not be made to the commission if the total amount claimed under subsection (1) is more than $50000. (3) The application may be made by-- (a) for a claim for occupational superannuation--an employee who is an eligible employee on whose behalf an employer is required to contribute to an approved superannuation fund; or (b) for any other claim--an employee; or (c) an employee organisation of which the eligible employee or employee is a member, acting for the employee; or (d) a person authorised by the eligible employee or employee to make the application, acting for the employee; or (e) an inspector. (4) The application must be made within 6 years after the amount claimed became payable. (5) However, for an apprentice or trainee, the application can not relate to wages payable more than 4 years before the commencement of this section. (6) The vice president may, either before or after the start of a hearing, remit the application to a magistrate if the vice president considers the application could be more conveniently heard by a magistrate, having regard to- - (a) the difficulty or expense of producing witnesses; or (b) another good and sufficient reason, for example, cost. (7) A magistrate may hear and decide the application as if it had been brought before the commission, and the magistrate's decision is taken to be a decision of the commission. (8) On hearing the application, the commission or magistrate-- (a) must order the employer to pay the employee-- (i) the amount the commission or magistrate finds to be payable and unpaid to the employee within the 6 years before the date of the application; and (ii) an amount the commission or magistrate considers appropriate, based on the return that would have accrued in relation to the contributions had it been properly paid to the approved superannuation fund; and (b) may make an order for the payment despite an express or implied provision of an agreement to the contrary; and (c) may order the payment to be made on the terms the commission or magistrate considers appropriate. (9) For an order about an unpaid contribution, the order must require the contribution to be paid to-- (a) if the employee is employed by the employer--the approved superannuation fund; or (b) if the employee is no longer employed by the employer-- (i) the approved superannuation fund; or (ii) a complying superannuation fund; or (iii) a superannuation fund nominated by the employee; or (iv) an eligible rollover fund; or (v) if the amount is less than the amount of total benefits that may revert to an employee under the Superannuation Industry (Supervision) Act 1993 (Cwlth)--the employee. (10) The contribution must be paid into the unclaimed moneys fund, if a former employee in relation to whom an order is made-- (a) can not be located after reasonable inquiry; or (b) does not nominate a superannuation fund for the purpose of the order, if required by the order to do so. (11) A person can not make an application under this section if an application has been made under section 399, 400F or 408 for the same matter. (12) In this section-- employee includes a student to whom an order made under section 140A applies. employer includes an employer to whom an order made under section 140A applies. occupational superannuation includes an amount equal to the return that would have accrued in relation to the occupational superannuation had it been properly paid to an approved superannuation fund. 279 Orders about representation rights of associations or employee organisations (1) The full bench may, on application by an organisation, an employer or the Minister, make the following orders about a demarcation dispute-- (a) an order that an employee organisation has the right, to the exclusion of an association or another organisation, to represent a particular group of employees who are eligible for membership of the organisation; (b) an order that an employee organisation that does not have the right to represent a particular group of employees has the right; (c) an order that an association or employee organisation does not have the right to represent a particular group of employees who are eligible for membership of the organisation. (2) The full bench may make an order only if-- (a) the full bench considers conciliation proceedings would not help in the prevention or settlement of the dispute; or (b) conciliation proceedings for the dispute are completed, but the dispute has not been fully settled. (3) The full bench may make an order only if satisfied-- (a) the conduct, or threatened conduct, of an association or organisation to which the order would relate, or of an officer, member or employee of the association or organisation is-- (i) preventing, obstructing or restricting the performance of work; or (ii) harming an employer's business; or (b) the conduct, or threatened conduct, of an association or of an officer, member or employee of the association is preventing, obstructing or restricting negotiations or discussions between the employer and an organisation or the employer and the employer's employees; or (c) the consequences mentioned in paragraph (a) or (b)-- (i) have stopped, but are likely to recur as a result of the conduct or threatened conduct; or (ii) are imminent as a result of the conduct or threatened conduct. (4) In considering whether to make an order, the full bench must consider-- (a) the wishes of employees who would be affected by the order; and (b) the effect of an order on the operations (including operating costs, work practices, efficiency and productivity) of the employees' employer; and (c) whether it should consult with appropriate State peak councils or organisations; and (d) the ability of the organisation to adequately represent the employees' interests; and (e) an agreement or understanding that the full bench becomes aware of that deals with an employee organisation's right to represent a particular group of employees; and (f) the consequences of not making an order for the employees, employer or organisation; and (g) another order made by the commission that it considers relevant. (4A) If the full bench makes an order under this section, it may also make any ancillary order it considers necessary to support the order, including making an order prohibiting-- (a) an officer or employee of an association or organisation from representing a person in a matter before an industrial tribunal; and (b) an association or organisation from arranging for an agent to represent a person in relation to making an agreement under chapter 6; and (c) an association or organisation from holding out membership on the basis of being able to provide representation in stated industrial matters. (5) An order or ancillary order may-- (a) be subject to conditions; and (b) apply to an individual, an association or an organisation. (6) An individual, an association or an organisation to which an order applies must comply with the order. (7) The full bench may, on application by the Minister or a person or organisation affected by an order, make the further order it considers appropriate to ensure the Act is complied with. (8) In this section-- association means a body or entity that is formed or carried on to protect and promote its members' interests in matters concerning their employment, but is not registered as an organisation under this Act. industrial tribunal means the court, the commission, the full bench or the registrar. right to represent a particular group of employees means the right to represent the industrial interests of the particular group of employees. 280 Procedures for reopening (1) Proceedings may be reopened, on application by a person under subsection (2), by-- (a) for proceedings taken before the full bench--the full bench; or (b) otherwise--the commission. (2) An application for reopening of proceedings may be made by-- (a) the Minister; or (b) a party to the proceedings; or (c) for proceedings that are not about a certified agreement or QWA-- (i) an organisation whose members are bound by, or claim to be affected by or dissatisfied with, the proceedings; or (ii) a person who is bound by or claims to be affected by or dissatisfied with the proceedings, and who satisfies the commission that the person is not an officer of, or acting for, an eligible association. (3) If the commission reopens proceedings, it may-- (a) revoke or amend a decision or recommendation made by it; and (b) make the decision or recommendation it considers appropriate. (4) If a recommendation of the commission has been acted on by the Governor in Council and the commission later revokes or amends the recommendation, the Governor in Council may-- (a) cancel the action taken on the recommendation to accord with the commission's revocation or amendment; or (b) amend the action to accord with the commission's revocation or amendment. (5) Failure to give notice to a person of the proceedings, or any part of the proceedings, leading to the making by the commission of a decision binding on the person-- (a) does not invalidate or otherwise affect the decision; but (b) if the person is one on whose application the commission may exercise its powers, the person's failure to participate in the proceedings because of the absence of notice does not affect the person's application for reopening of proceedings. (6) If the commission grants an application for reopening, it may give the retrospective operation to its decision made in the reopened proceedings it considers appropriate. 281 Reference to full bench (1) The commission may, at any stage of proceedings and on the terms the commission considers appropriate, refer the matter to which the proceedings relate to the full bench. (2) A commissioner may refer the matter only with the vice president's approval. (3) However, if the commissioner constituting the commission is the vice president, the vice president may refer the matter only with the president's approval. (4) Before the hearing of a matter by the commission starts, a party to the proceedings may apply to the vice president for the matter to be referred to the full bench. (5) The vice president may approve the referral of a matter to the full bench under subsection (2) only if the vice president is satisfied the matter is of substantial industrial significance. (6) The president may approve the referral of a matter to the full bench under subsection (3) only if the president is satisfied the matter is of substantial industrial significance. (7) On application under subsection (4), the vice president may refer the matter to the full bench only if the vice president is satisfied the matter is of substantial industrial significance. (8) The full bench may hear and decide a matter referred to it and make the decision it considers appropriate. 282 Case stated to court (1) The commission may, at any stage of proceedings and on the terms it considers appropriate, state a written case for the court's opinion on a question of law relevant to the proceedings. (2) The court may-- (a) hear and decide the matter raised by a case stated; and (b) remit the case, with its opinion, to the commission by which the case was stated. (3) The commission must give effect to the court's opinion. 283 Power to enter and inspect (1) A member, an officer of the commission or another person with a member's written authority (a commission official), may-- (a) enter a workplace in relation to which-- (i) an industrial dispute exists, is impending or threatened, or is likely to arise; or (ii) an industrial matter exists; or (iii) an industrial instrument or permit exists; or (iv) it is reasonably suspected an offence under this Act has been, or is being committed; and (b) inspect any work, machinery, appliance, materials, article or thing in or on the workplace; and (c) question a person in or on the workplace about a matter relevant to the commission's concern with the workplace. (2) A power under subsection (1) may be exercised only during working hours at the workplace. (3) If a commission official is seeking to exercise a power under subsection (1), a person must not-- (a) refuse or unduly delay the official's entry to the workplace; or (b) fail to answer a question about a matter mentioned in subsection (1), unless the person has a lawful excuse; or (c) wilfully give false information or make a false statement. Maximum penalty--100 penalty units or 1 year's imprisonment. (4) In this section-- workplace means a place where, or for which-- (a) a calling is carried on; or (b) work has been, or is being, performed; or (c) another activity has happened, or is happening. 284 Interpretation of industrial instruments (1) The commission may give an interpretation of an industrial instrument, other than a certified agreement or QWA, on application by-- (a) the Minister; or (b) an organisation; or (c) an employer; or (d) a person who satisfies the commission that the person is not an officer of, or acting for, an eligible association; or (e) an inspector. (2) The commission may give an interpretation of a certified agreement on application by-- (a) the Minister; or (b) an organisation, or other person, bound by the agreement; or (c) an employee whose employment is subject to the agreement; or (d) an inspector. (3) The commission may give an interpretation of a QWA on application by-- (a) a party to it; or (b) an inspector. (4) If an inspector's application under this section relates to an alleged ambiguity, the commission must hear and decide the application in the absence of a statement of agreed facts. 285 Conducting a secret ballot (1) The commission may specify when, where and how a secret ballot is to be conducted. (2) The registrar must-- (a) conduct the ballot in accordance with the direction; and (b) for the conduct of the ballot--do the things provided for by the rules. (3) Public service officers must help the registrar, as required, to conduct the ballot. (4) The registrar must advertise the result of the ballot in a newspaper circulating in the locality concerned, unless the commission otherwise directs. (5) A person must not-- (a) resist or obstruct the registrar, a public service officer, or a person acting under the direction or authority of the registrar, performing a duty imposed, or an action directed or authorised to be done, for the ballot; or (b) at or near the place where the ballot is being taken-- (i) threaten or intimidate, or obstruct the free passage of, an employee going to or attending at the place to vote at the ballot; or (ii) threaten or intimidate an employee so that the employee would not vote or would vote in a particular way at the ballot; or (c) obstruct an employee or another person in the performance of an action directed or authorised to be done for the ballot; or (d) by a threat or intimidation, prevent an employee or another person from performing an action directed or authorised to be done for the ballot; or (e) vote at the ballot unless the person-- (i) is entitled to vote; and (ii) has received a ballot paper from the registrar; or (f) vote at the ballot in someone else's name; or (g) if the person is entitled to vote at the ballot--mark a ballot paper relating to the ballot, other than the ballot paper received by the person from the registrar. Maximum penalty--40 penalty units. (8) In this section-- prevent includes attempt to prevent. resist or obstruct includes attempt to resist or obstruct. threaten or intimidate includes attempt to threaten or intimidate. vote includes attempt to vote. 286 Other powers This division does not limit, by implication, another power given to, or possessed by, the commission under this or another Act or law. 287 General rulings (1) The full bench may make general rulings about-- (a) for employees bound by an industrial instrument--an industrial matter, to avoid a multiplication of inquiries into the same matter; or (b) a review of a general employment condition under chapter 2; or (c) a Queensland minimum wage for all employees. (2) The full bench must ensure a general ruling about a Queensland minimum wage for all employees is made at least once each calendar year. (3) Before conducting a hearing about the ruling, the full bench must-- (a) give reasonable notice, in the way it considers appropriate, of its intention to conduct the hearing; and (b) give all interested persons an opportunity to be heard. (4) A ruling-- (a) must specify a date (the specified date) on and from which it has effect; and (b) has effect as a decision of the full bench on and from the specified date. (5) A ruling may exclude from the operation of any of its provisions-- (a) a class of employers or employees; or (b) employers or employees in a particular locality; or (c) an industrial instrument or part of an instrument. (6) As soon as practicable after making a ruling, the registrar must publish notice of the ruling and the specified date on the QIRC website. (7) The notice, on and from the specified date, replaces a notice of a ruling on the same subject matter previously published. (8) The ruling notified continues in force until the end of the day immediately before the specified date included in the next ruling on the same subject matter. (9) If a ruling takes effect while an industrial instrument, other than a instrument or part of an instrument excluded under subsection (5), is in force- - (a) the industrial instrument is taken to be amended to accord with the ruling, on and from the specified date; and (b) the amendment has effect as an industrial instrument, on and from the specified date. (10) The registrar may amend an industrial instrument taken to be amended under subsection (9) as the registrar considers appropriate, to accord with the ruling-- (a) on application under the rules; or (b) of the registrar's own initiative. (11) In this section-- Queensland minimum wage means the wage declared by the full bench to be the Queensland minimum wage. 288 Statement of policy (1) The full bench may make a statement of policy about an industrial matter, whether or not the matter is before the commission. (2) On application by a party to an award, a stated policy may be given effect by being inserted in the award. (3) The registrar may give effect to a stated policy by directions about procedural matters to the extent allowed by the commission. (4) The directions bind all persons concerned. 289 Industrial Magistrates Court An Industrial Magistrates Court is a court of record. 290 Office of industrial magistrate Each of the following persons is an industrial magistrate (a magistrate)-- (a) a magistrate; (b) an acting magistrate. 291 Constitution of Industrial Magistrates Court An Industrial Magistrates Court is constituted by a magistrate sitting alone. 292 Magistrate's jurisdiction (1) A magistrate has jurisdiction-- (a) to exercise powers conferred on, or jurisdiction given to, magistrates by this Act or another Act; and (b) to hear and decide proceedings about the following matters-- (i) an offence against this Act for which-- (A) a maximum penalty of not more than 40 penalty units is prescribed, unless the offence is one for which this Act makes other provision; or (B) jurisdiction is conferred on magistrates by this Act; (ii) a claim for-- (A) wages; or (B) the repayment of a fee received by a private employment agent in contravention of section 408D (1) or (2); (iii) claims for damages suffered by an employee because of the employer neglecting to pay the employee's wages; (iv) claims for damages for contravention of an agreement made under an industrial instrument; (v) claims under chapter 11, part 2, division 2; (vi) claims for compensation under section 83. (2) A magistrate has jurisdiction throughout the State. (3) In this section-- fee includes charge, expense of any kind and reward. 293 Magistrates' jurisdiction is exclusive (1) The jurisdiction conferred on a magistrate by this or another Act is exclusive of the jurisdiction of another court or tribunal, unless this or the other Act otherwise prescribes. (2) Jurisdiction conferred on a magistrate for the following matters is not exclusive of another court's jurisdiction-- (a) a claim for an employee's wages payable under an industrial instrument or permit or under section 8A; (b) a claim for an employee's wages payable under an agreement in which wages are payable at a price or rate higher than that fixed by a relevant industrial instrument or permit; (c) a claim for an employee's wages payable under an agreement in which wages are payable at a price or rate that is not fixed by a relevant industrial instrument or permit; (d) a claim for amounts payable, with an employee's written consent, from an employee's wages; (e) a claim for the repayment of a fee received by a private employment agent in contravention of section 408D(1) or (2). (3) In this section-- fee includes charge, expense of any kind and reward. 294 Industrial registry (1) There is an Industrial Registry (the registry). Editor's note-- The registry is a public service office under the Public Service Act 2008. (2) The registry consists of-- (a) an industrial registrar (the registrar); and (b) 1 or more deputy industrial registrars (a deputy registrar); and (c) the other staff mentioned in section 303. 295 Functions of the registry The registry has the following functions-- (a) to act as the registry for the court and commission; (b) to provide administrative support to the court and commission; (c) any other functions conferred on the registry by this Act. 296 Seal of the registry (1) The registry has a seal. (2) 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. 297 Appointment of registrar (1) The Governor in Council may, by gazette notice, appoint a person to be the registrar. (2) The registrar is to be paid the remuneration and allowances decided by the Governor in Council. (3) The registrar holds office on the terms and conditions, not provided for by this Act, decided by the Governor in Council. 298 Termination of appointment of registrar (1) The Governor in Council must end the registrar's appointment if the registrar-- (a) is guilty of misconduct of a kind that could warrant dismissal from the public service if the registrar were a public service officer; or (b) is absent, without the Minister's leave or without reasonable excuse, for 14 consecutive days or 28 days in any year; or (c) becomes incapable of performing the functions of office. (2) The Governor in Council may end the registrar's appointment if the registrar-- (a) is convicted of an indictable offence (whether in Queensland or elsewhere); or (b) engages in other paid employment. 299 Functions and powers of registrar (1) The registrar-- (a) administers the registry; and (b) has the functions conferred on the registrar under this or another Act. (2) The registrar has the power to do all things necessary or convenient to be done to perform the registrar's functions. (3) 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. 300 Deputy registrar A deputy registrar must help the registrar in performing the registrar's functions. 301 Delegation by registrar The registrar may delegate a power of the registrar under this Act to-- (a) a deputy registrar; or (b) an appropriately qualified person nominated by the president; or (c) for section 374--an appropriately qualified officer of the court or commission. 302 Acting registrar (1) This section applies if the registrar temporarily can not perform the functions of office. (2) The Governor in Council may appoint a person to act as the registrar by gazette notice. 303 Staff The staff of the registry, including a deputy registrar, are to be appointed under the Public Service Act 2008. 304 Officers of the court and commission The registrar, a deputy registrar and the other staff of the registry are officers of the court and the commission. 304A What is the QIRC website The QIRC website is the internet website used by the registrar to provide public access to information about matters relating to the court, the commission and the registry. 304B When matter is published on QIRC website (1) A matter is published on the QIRC website-- (a) if it is made accessible in full on the website; or (b) if-- (i) notice of its making, issue or other production is made accessible on the website; and (ii) it is made accessible separately in full in another location identified in the notice. (2) The date on which a matter is published on the QIRC website is the date notified by the registrar (whether as part of the matter or elsewhere) as the date of its publication, being a date that is not earlier than the date on which it was first made accessible under subsection (1). (3) However, if a matter can not for technical or other reasons be published on the QIRC website at a particular time, the matter-- (a) may be published at that time as mentioned in subsection (4); and (b) must be published on the QIRC website as soon as practicable; and (c) is taken to have been published on the QIRC website when it is published as mentioned in subsection (4). (4) If subsection (3) applies, the registrar may publish the matter in any of the following ways-- (a) in the gazette; (b) in a newspaper circulating throughout the State; (c) another way the registrar decides that gives sufficient notice of the matter to the public or the part of the public likely to be affected by or concerned with the matter. Example for paragraph (c)-- a website of another department or State agency 305 Member may hold other appointment A member who is appointed as a member of the Australian commission may hold that appointment and the appointment as a member at the same time. 306 Appointment of Commonwealth official as commissioner (1) The Governor in Council may appoint a member of the Australian commission to be a commissioner (dual commissioner). (2) Sections 263 and schedule 2, part 1, section 1 do not apply to the appointment of a dual commissioner or to a dual commissioner. (3) The appointment-- (a) is for the term the Governor in Council considers appropriate and states in the instrument of appointment; and (b) may be ended, with the Governor in Council's approval, by the Minister's notice given to the dual commissioner. (4) A dual commissioner-- (a) is not entitled to remuneration for performing the functions of a commissioner; but (b) is entitled to be paid expenses reasonably incurred by the dual commissioner in exercising powers and performing functions as a commissioner. (5) A dual commissioner stops being a commissioner if the person-- (a) becomes a person mentioned in section 262; or (b) stops being a member of the Australian commission. 307 Role of dual commissioner (1) A dual commissioner, as agreed from time to time by the president and the president of the Australian commission-- (a) must perform the functions of a commissioner; and (b) has, and may exercise for a particular matter, the powers of-- (i) a commissioner; and (ii) a member of the Australian commission. (2) A provision of this Act prescribing the functions or powers of a commissioner is subject to subsection (1) in its application to a dual commissioner. 308 Reference of matter to Commonwealth official (1) The president may ask the president of the Australian commission to nominate a member of that commission to deal with an industrial matter before the commission. (2) If a nomination is made, the president may refer the industrial matter to the nominated member, to be dealt with by the nominated member under this Act. (3) In dealing with the industrial matter, the nominated member-- (a) has the powers of a commissioner; and (b) in exercising the powers, is taken to constitute the commission. (4) The nominated commissioner's decision is taken to be a decision of the commission. (5) The reference of an industrial matter to a nominated commissioner-- (a) does not derogate from the commission's authority to exercise jurisdiction in relation to the matter; and (b) may be revoked by the president by notice given to the nominated commissioner. (6) In this section-- industrial matter includes part of an industrial matter. 309 Conferences with industrial authorities (1) This section applies if-- (a) the president considers it desirable that a conference be held with an industrial authority about an industrial matter; and (b) the industrial authority agrees to a conference. (2) The president may confer, or direct a commissioner to confer, with the industrial authority to coordinate decisions made, or to be made-- (a) under this Act about the industrial matter; and (b) by the industrial authority. 310 Joint sessions with industrial authorities (1) This section applies if-- (a) the president considers proceedings relating to an industrial matter before the commission should be heard in joint session with an industrial authority; and (b) the industrial authority agrees to a joint session. (2) The president may-- (a) hear, or direct a commissioner to hear, the proceedings in joint session with the industrial authority; and (b) confer, or direct the commissioner to confer, with the industrial authority about the proceedings and the decision to be made in the proceedings; and (c) join, or direct the commissioner to join, with the industrial authority in the decision made in the proceedings. 311 Similar matters before full bench and industrial authority (1) This section applies if-- (a) the president considers an industrial authority has before it an industrial matter similar to an industrial matter before the full bench; and (b) the industrial authority agrees to participate in joint session. (2) The president may-- (a) if the president is a member of the full bench--participate in joint session with the industrial authority about the industrial matter; or (b) direct a member of the full bench to participate in joint session with the industrial authority about the industrial matter. (3) The president or member must report the result of the joint session to the full bench. 311A Adoption of result of joint session (1) This section applies if the president or member reports the result of the joint session to the full bench under section 311. (2) The full bench may make a general ruling under section 287, or a statement of policy under section 288, about the industrial matter that was the subject of the joint session. (3) Before making the ruling or statement of policy, the full bench must decide whether any further hearing is necessary in relation to the matter. 312 Member's powers in joint session A member participating in joint session with an industrial authority, in relation to the industrial matter dealt with in joint session, must perform the functions and has, and may exercise, the powers of the commission. 313 President may decide matter not to be dealt with in joint session The president may decide that an industrial matter should not be dealt with in joint session and, if the decision is made after a joint session about the matter starts-- (a) the member participating in the joint session must immediately stop participating; and (b) the industrial matter may proceed before the commission or, if appropriate, the full bench. 314 Functions and powers vested in commission by other jurisdictions (1) The commission may perform the functions and exercise the powers conferred on it under-- (a) the Workplace Relations Act 1996 (Cwlth); or (b) another enactment of a jurisdiction other than Queensland declared for this section under a regulation. (2) A decision of the commission under authority conferred by subsection (1) is not a decision made by it under this Act. 315 Arrangements with Commonwealth public service (1) Arrangements may be made under the Public Service Act 2008, section 183 or 184 for-- (a) a Commonwealth public servant to perform functions and exercise powers under this Act; and (b) Queensland public service employees to perform functions and exercise powers under the Commonwealth Act. (2) An arrangement under subsection (1)(a) is enough authority for a Commonwealth public servant to perform the functions and exercise the powers of a Queensland public service employee under this Act. (3) In this section-- Commonwealth public servant means-- (a) an officer of the Commonwealth public service; or (b) the industrial registrar under the Commonwealth Act; or (c) another person performing functions and exercising powers under the Commonwealth Act. 316 Definitions for pt 6 In this part-- administer an oath includes authorise the administering of an oath. exercising jurisdiction includes exercising powers and performing functions. take a statutory declaration includes authorise the taking of a statutory declaration. 317 Starting proceedings (1) Unless otherwise provided, proceedings may be started in the court or commission or before the registrar on application by-- (a) an organisation or an officer or member of an organisation; or (b) the Minister; or (c) a State peak council; or (d) an inspector; or (e) an employer; or (f) a person who has an interest in the matter to which the application relates. (2) Proceedings may also be started by the commission of its own initiative. (3) In proceedings, the commission may call before it the persons it considers necessary. (4) This section does not affect another provision of this Act providing for the starting of proceedings. 318 Service of process (1) Subsection (2) applies if-- (a) for proceedings in, or to be started in, the court--the president or registrar considers service of a document can not be effected promptly by personal service or in a way prescribed under the rules; or (b) for proceedings in, or to be started in, the commission--the commission or registrar considers service of a document can not be effected promptly by personal service or in a way prescribed under the rules. (2) The president, commission or registrar may order-- (a) substituted service of the document; or (b) notice of the document be given by letter, telex, fax, email, advertisement in an appropriate newspaper, or otherwise, instead of service. (3) Service or notice in accordance with the order is sufficient service of the person required to be served. (4) Unless otherwise ordered by the court or commission-- (a) service of the document on an employer organisation; or (b) substituted service or notice of the document in accordance with an order under subsection (2); is taken to be service on all employers who have employees engaged in the calling that is relevant to the purpose of the document, or in related callings. (5) In this section-- document includes an attendance notice, notice or order. 319 Representation of parties (1) 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-- (a) an agent appointed in writing; or (b) if the party or person is an organisation--an officer or member of the organisation. (2) The party or person may be represented by a lawyer if, and only if-- (a) for proceedings in the court-- (i) the proceedings are for the prosecution of an offence; or (ii) all parties consent; or (iii) the court gives leave; or (b) for proceedings before the commission, other than proceedings under section 278 or 408F-- (i) the proceedings relate to a matter under chapter 4, other than section 110; or (ii) all parties consent; or (iii) the proceedings relate to a matter under chapter 3, or under section 110, 275, 276 or 279, or under chapter 12, part 2 or part 16 and, on application by a party or person- - (A) 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 legally represented; or (B) the commission is satisfied the party or person can be adequately represented only by a lawyer; or (c) for proceedings before an Industrial Magistrates Court, other than proceedings remitted under section 278(6) or 408F(5)-- (i) all parties consent; or (ii) the proceedings are brought personally by an employee and relate to a matter that could have been brought before a court of competent jurisdiction other than an Industrial Magistrates Court; or (iii) the proceedings are for the prosecution of an offence; or (d) for proceedings before the registrar, including interlocutory proceedings-- (i) all parties consent; or (ii) the registrar gives leave. (3) However, in proceedings mentioned in subsection (2)(c)(iii), the person represented can not be awarded costs of the representation. (4) For subsection (2)(b)(iii), the commission may consider, for example, the following-- (a) the amount claimed in the proceedings, if any; (b) the nature and complexity of the matter; (c) the nature of the evidence to be adduced; (d) the cross-examination likely to be required; (e) the capacity of the party or person to represent himself or herself; (f) the questions of law likely to arise; (g) whether the duration or cost of the proceedings will be decreased or increased if the party or person is represented. (5) In this section-- proceedings means proceedings under this or another Act being conducted by the court, the commission, an Industrial Magistrates Court or the registrar. 320 Basis of decisions of the commission and magistrates (1) Subsections (2) and (3) do not apply to proceedings for-- (a) the recovery of amounts, other than an amount ordered under section 278 or 408F; or (b) an offence against this Act. (2) In proceedings, the commission or Industrial Magistrates Court-- (a) is not bound by technicalities, legal forms or rules of evidence; and (b) may inform itself on a matter it considers appropriate in the exercise of its jurisdiction. (3) Also, the commission or 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-- (a) the persons immediately concerned; and (b) the community as a whole. (4) In proceedings, the commission may admit evidence given before, and the findings of, the Anti-Discrimination Commission as evidence in the proceedings. (5) In making a decision, the commission must consider the public interest, and to that end must consider-- (a) the objects of this Act; and (b) the likely effects of the commission's decision on the community, local community, economy, industry generally and the particular industry concerned. (6) In exercising its jurisdiction, the commission must have appropriate regard to the rules. 321 Competence and compellability of witnesses A party to proceedings in the court or commission is competent, and may be compelled, to give evidence in the proceedings as a witness to the same extent as in civil proceedings in the Supreme Court. 322 Intervention (1) The Minister may intervene-- (a) in proceedings before an industrial tribunal; or (b) in proceedings before another court or tribunal that touch on-- (i) the jurisdiction or powers of the court, the commission, a magistrate or the registrar; or (ii) a matter for which the jurisdiction or powers may be exercised; or (iii) the interpretation of this Act. (2) A State peak council may intervene in proceedings before the commission if any of its members has a sufficient interest in the proceedings. (3) On intervention, the Minister or State peak council becomes a party to the proceedings. (4) In this section-- industrial tribunal means the court, the commission, an Industrial Magistrates Court or the registrar. 323 Adjournment by registrar If the president or a commissioner can not attend at the time appointed for hearing proceedings, the registrar may adjourn the court or commission and any business set down for the day to a day and time that the registrar considers convenient. 324 State employee to give information (1) A person employed by the State must give the court or commission, if the court or commission asks, information that the person has knowledge of in an official capacity. (2) The person must comply with the request despite an obligation under an Act or law not to disclose information, unless the Act or law allows, justifies or excuses a refusal to give it in evidence in legal proceedings. 325 Exercise of commission's powers (1) The commission may, unless otherwise prescribed by or under this Act, exercise its powers-- (a) of its own initiative; or (b) on application by-- (i) a party to proceedings in which the power is to be exercised; or (ii) an organisation. (2) The commission may, of its own initiative-- (a) join 2 or more matters to be heard and decided by the commission, whether the matters or any of them arise under this or another Act; and (b) hear and decide the matters in 1 proceeding. 326 Interlocutory proceedings In an industrial cause, the president, commission or registrar may make orders, or give directions, the president, commission or registrar considers just and necessary in relation to interlocutory proceedings to be taken before the hearing of the cause, including proceedings about-- (a) naming and joinder of parties; or (b) persons to be served with notice of proceedings; or (c) calling of persons to attend in proceedings; or (d) particulars of the claims of the parties; or (e) the issues to be referred to the court or commission; or (f) admissions, discovery, interrogatories or inspection of documents or property; or (g) examination of witnesses; or (h) costs of the interlocutory proceedings; or (i) place, time and mode of hearing of the cause. 327 Power to order inquiry or taking of evidence (1) The commission, by order, may direct-- (a) the registrar to conduct an inquiry into a matter the commission requires information about for the exercise of the commission's jurisdiction; or (b) an appropriately qualified person to take evidence for the commission about an industrial cause. (2) The registrar or other person must comply promptly with the direction and report, or give a record of evidence taken, to the commission. (3) The registrar may call persons to attend before the registrar and examine parties and witnesses for-- (a) conducting an inquiry mentioned in subsection (1); or (b) disposing of another matter referred to the registrar under this Act. (4) A person directed to take evidence under subsection (1) has all the powers of the commission for-- (a) calling witnesses; and (b) requiring production of records. 328 Power to administer oath In exercising jurisdiction, the following persons may take evidence on oath or statutory declaration, and for that purpose may administer an oath or take a statutory declaration-- (a) a person constituting the court, the commission or an Industrial Magistrates Court; (b) the registrar; (c) a person directed by the commission to take evidence for the commission. 329 Powers incidental to exercise of jurisdiction Except as otherwise prescribed by this Act or the rules, the court, commission and registrar may-- (a) at or before a hearing, take steps to find out whether all persons who ought to be bound by a decision to be made in proceedings have been called to attend or given notice of, the proceedings; and (b) direct, for proceedings-- (i) who the parties to the proceedings are; and (ii) by whom the parties may be represented; and (iii) persons to be called to attend the proceedings, if they have not been called and it appears they should attend the proceedings; and (iv) parties to be joined or struck out; and (v) who may be heard and on what conditions; and (c) hear and decide an industrial cause in the way that appears best suited for the purpose; and (d) allow claims in the proceedings to be amended on terms that appear fair and just; and (e) correct, amend or waive an error, defect or irregularity in the proceedings, whether substantive or formal; and (f) give directions under a decision, that the court, commission or registrar considers necessary for, or conducive and appropriate to, the effective implementation of the decision; and (g) hear and decide an industrial cause in the absence of a party, or of a person who has been called to attend, or served with a notice to appear, at the proceedings; and (h) sit at any time and in any place for hearing and deciding an industrial cause, and adjourn a sitting to any time and place; and (i) refer technical matters, accounting matters, or matters involving expert knowledge to an expert, and admit the expert's report in evidence; and (j) extend a prescribed or stated time, before or after expiry of the time; and (k) waive compliance with the rules. 330 Power to obtain data and expert evidence (1) If the commission wants expert evidence based on facts or figures to decide an industrial cause, it may-- (a) order the following persons to give it returns of the facts or figures-- (i) an organisation that is, or any of whose members are, party to the proceedings; (ii) an employer, or group of employers, who is a party to the proceedings; and (b) allow a person selected by it as an expert in a relevant respect to prepare, from the returns, reports directed to matters that the commission seeks to be informed on. (2) A person preparing a schedule may show in it the particulars that-- (a) are relevant to the cause; or (b) the commission asks for. (3) However, the person must not, without the commission's leave, otherwise divulge to anyone (other than the commission)-- (a) the name of the organisation that gave the return; or (b) business information of a private or confidential nature extracted from the return. Maximum penalty--20 penalty units. (4) A schedule, as far as possible, must extend beyond 1 year's operation of a business or industry. 331 Decisions generally The court or commission may, in an industrial cause-- (a) make a decision it considers just, and include in the decision a provision it considers appropriate for preventing or settling the industrial dispute, or dealing with the industrial matter, the cause relates to, without being restricted to any specific relief claimed by the parties to the cause; or (b) dismiss the cause, or refrain from hearing, further hearing, or deciding the cause, if the court or commission considers-- (i) the cause is trivial; or (ii) further proceedings by the court or commission are not necessary or desirable in the public interest; or (c) order a party to the cause to pay another party the expenses, including witness expenses, it considers appropriate. 332 Reserved decisions (1) The court or commission may reserve its decision in proceedings. (2) If a decision is reserved-- (a) it may be pronounced at-- (i) a continuation or resumption of the court or commission; or (ii) a subsequent sitting of the court or commission; or (b) the court or commission may give its written decision, signed by the person or each of the persons constituting the court or commission, to the registrar. (3) The registrar must file a written decision in the registry and give a copy of it to each of the parties to the industrial cause. (4) When filed, a written decision has effect as if it had been pronounced by the court or commission. 333 Commission decisions to be in plain English The commission must ensure the commission's written decisions are-- (a) in plain English; and (b) structured in a way that makes a decision as easy to understand as the subject matter allows. 334 Extent of decisions and their execution (1) In the exercise of its jurisdiction, the court or commission may-- (a) make the decisions it considers necessary for-- (i) doing complete justice in proceedings before it; and (ii) the execution of the decision; and (b) enforce its own decisions; and (c) direct the issue of a writ or process; and (d) impose and enforce a penalty, allowed or prescribed by this or another Act, in the same way a Supreme Court judgment is enforced. (2) A decision of the court or commission-- (a) must be drawn up and verified; and (b) without limiting any other way of execution and recovery prescribed by or under this Act, may be executed, recovered on, and otherwise enforced; as a judgment or order of a Supreme Court judge is drawn up, verified, executed, recovered and otherwise enforced against the person, lands, and goods of the party affected. (3) For the effective operation of subsection (2), the Uniform Civil Procedures Rules, as far as they may reasonably be applied, are to be applied and complied with, with the amendments the court or commission approves. (4) The registrar, deputy registrars, sheriff, bailiffs and officers of the Supreme Court, or of Magistrates Courts, are taken to be officers of the court and commission for-- (a) executing, recovering on, and otherwise enforcing decisions of the court or commission; or (b) imposing functions or conferring powers by the rules and of performing the functions or exercising the powers. 335 General power to award costs (1) The court or commission may order a party to an application to pay costs, including witness expenses and other expenses, incurred by another party only if satisfied-- (a) the party made the application vexatiously or without reasonable cause; or (b) for an application for reinstatement--the party caused costs, including witness expenses and other expenses, to be incurred by the other party because of an unreasonable act or omission connected with the conduct of the proceedings. (2) In making an order, the court or commission may order a party to pay another party an amount reasonably payable to a person, who is not a lawyer, for representing the other party. 336 Recovery of amounts under orders (1) If the court or commission in proceedings orders an amount be paid (as a penalty or otherwise), the registrar may issue a certificate, under the seal of the court or commission, stating-- (a) the amount payable; and (b) who is to pay the amount; and (c) to whom the amount is payable; and (d) any conditions about payment. (2) The amount may be recovered in proceedings as for a debt. (3) When the certificate is filed in a court of competent jurisdiction in an action for a debt of the amount, the order evidenced by the certificate is enforceable as an order made by the court where the certificate is filed. (4) This section does not limit other ways in which amounts may be recovered on an order of the court or commission. (5) In this section-- registrar, for an order made by a magistrate on remission from the commission under section 278 or 408F, means the registrar of the Magistrates Court. 337 Protections and immunities (1) The president, the commission and a magistrate, in the exercise of jurisdiction for this or another Act have the protection and immunities of a Supreme Court judge exercising the jurisdiction of a judge. (2) The president, the commission, a magistrate or the registrar (the official) has, in proceedings for defamation for a publication made to or by the official in the official's official capacity, a defence of absolute privilege if the publication was made in good faith. (3) The burden of proving absence of good faith is on a person who alleges the absence. 338 Rules (1) The Governor in Council may make rules under this Act. (2) The rules may only be made with the consent of the president. (3) The president must consult with-- (a) for a rule relating to the Industrial Magistrates Court--the Chief Magistrate; or (b) for a rule relating to the registry--the registrar; or (c) otherwise--the vice president and another commissioner. (4) Rules may be made about the following matters-- (a) regulating the practice and procedure to be followed and used-- (i) in or for proceedings in the court, commission or Industrial Magistrates Court and before the registrar; or (ii) in or for drawing up, settling and enforcing decisions, convictions and actions made, recorded or done by the court, commission or registrar; or (iii) in or for the performance by the commission of a function conferred on it under a referral agreement; (b) publishing decisions and other actions of the court, commission or registrar and the effect of the publication; (c) recovering fines and penalties imposed; (d) enforcing orders for attachment or imprisonment and orders for the payment of amounts made by the court or commission; (e) fees and expenses payable to witnesses; (f) fees payable in relation to proceedings in the court or commission, or before the registrar and the party by whom the fees are to be paid; (g) service of process, notices, orders or other things on parties and other persons; (h) the functions and powers of officers of the court or commission; (i) delegating the jurisdiction of the commission as permitted by this Act; (j) requiring organisations or other entities to give returns, lists of officers or members and other statistical information to the registrar; (k) providing for all matters necessary or expedient to be provided for to allow for-- (i) the full and effective exercise of jurisdiction and powers of the court, commission, Industrial Magistrates Court and registrar; and (ii) giving effect to the decisions, convictions and actions made, recorded, or done by the court, the commission, a magistrate, the registrar, or an officer of the court or commission. (5) Rules made under this section are subordinate legislation. 339 Directions about practice (1) Subject to this Act and the rules, the practice and procedure of the court, the commission, an Industrial Magistrates Court or the registrar is as directed by the president, a commissioner, a magistrate or the registrar. (2) If a person wishes to take a step in an industrial cause or a proposed cause and this Act or the rules do not provide or sufficiently provide for it, application for directions may be made to the appropriate person mentioned in subsection (1). 339A Definitions for ch 8A In this chapter-- ombudsman means the Queensland workplace rights ombudsman. QWRO means the Queensland Workplace Rights Office. 339B Purpose of ch 8A The purpose of this chapter is to provide for the appointment of the Queensland workplace rights ombudsman and to establish the Queensland Workplace Rights Office. 339C Ombudsman There is to be a Queensland workplace rights ombudsman. 339D Functions of ombudsman (1) The ombudsman has the following functions-- (a) to consult with any persons the ombudsman considers are affected by industrial relations and other work-related matters; (b) to inform, educate and promote informed decision-making by persons the ombudsman considers are affected by industrial relations and other work-related matters; (c) to facilitate and encourage fair industrial relations and work practices in Queensland, including by developing codes of practice; (d) to investigate and publicise unlawful, unfair or inappropriate industrial relations and other work-related matters in Queensland; (e) to refer instances of possible unlawful industrial relations and other work-related matters to appropriate authorities or services; (f) to make representations to an appropriate person or body about industrial relations and other work-related matters; (g) to monitor and report to the Minister on industrial relations and other work-related matters in Queensland; (h) to investigate and report to the Minister on the impact of any aspect of industrial relations and other work-related matters affecting Queenslanders; (i) to advise the Minister on the operation of this chapter and generally about industrial relations and other work-related matters; (j) to inform the Minister about strategies to-- (i) mitigate the negative effects of legislation from any source about industrial relations and work-related matters; and (ii) improve protection for vulnerable workers; and (iii) promote fair and equitable industrial relations and work practices in Queensland; (k) to ask for help or information from any public entity about work- related matters; (l) other functions conferred on the ombudsman under this or any other Act. (2) The ombudsman may carry out the ombudsman's functions and exercise the ombudsman's powers if asked by the Minister or any other person or entity or on the ombudsman's own initiative. (3) In this section-- public entity means-- (a) a government entity under the Public Service Act 2008; or (b) a corporation formed for a commercial purpose the shares of which are held beneficially on behalf of the State. 339E Ombudsman not subject to direction The ombudsman is not subject to direction by any person about-- (a) the way the ombudsman performs the ombudsman's functions under this Act; or (b) the priority given to investigations. 339F Powers of ombudsman Without limiting the ombudsman's other powers under this part, the ombudsman may do anything necessary or convenient to be done for, or in connection with, the ombudsman's functions. 339G Restrictions on ombudsman's functions (1) The ombudsman can not represent an individual in a proceeding or otherwise act as an agent for an individual. (2) The ombudsman must not deal with, or continue to deal with, a matter if the ombudsman is or becomes aware that the matter is or has been the subject of a proceeding before an industrial tribunal. (3) However, if the proceeding is discontinued or did not result in a decision being made, the ombudsman may start to deal, or resume dealing, with the matter. (4) In this section-- industrial tribunal means the full bench, the commission, the registrar or any court of the State. 339H Appointment of ombudsman (1) The ombudsman is appointed by the Governor in Council. (2) The ombudsman is appointed under this Act and not the Public Service Act 2008. 339I Eligibility for appointment (1) A person is eligible to be appointed as ombudsman if the person has-- (a) a high level of experience in-- (i) business or industry; or (ii) an organisation or employer association or a state peak council; or (iii) a department of government; or (iv) an agency, authority, commission, corporation, instrumentality, office, or other entity, established under an Act or under State authorisation for a public or State purpose; or (b) suitable experience, qualifications and standing in the community to be appointed as ombudsman. (2) A person is not eligible to be or continue as ombudsman if the person-- (a) is a member of the Executive Council or Legislative Assembly; or (b) is a director of a corporation engaged in a calling: or (c) is a auditor of a corporation engaged in a calling or of a business; or (d) participates in any capacity in the management of-- (i) a corporation engaged in a calling; or (ii) a business; or (e) is an insolvent under administration; or (f) is convicted of an indictable offence. (3) In this section-- insolvent under administration see the Corporations Act, section 9. 339J Term of appointment (1) The ombudsman holds office for the term, of not more than 3 years, stated in the ombudsman's instrument of appointment. (2) The ombudsman may be reappointed. (3) However, a person must not be reappointed if the total of the person's terms of appointment would be more than 6 years. 339K Remuneration and conditions (1) If the ombudsman is not a commissioner, the ombudsman is to be paid the remuneration and other allowances decided by the Governor in Council. (2) The ombudsman holds office on the conditions stated in the ombudsman's instrument of appointment. 339L Acting ombudsman The Governor in Council may appoint a person eligible for appointment as ombudsman to act as ombudsman-- (a) during a vacancy in the office; or (b) during any period, or during all periods, when the ombudsman is absent from duty or from the State or is, for another reason, unable to perform the duties of the office. 339M Resignation The ombudsman may, at any time, resign office as ombudsman by signed written notice given to the Governor. 339N Vacating office The ombudsman is taken to resign office as ombudsman if the ombudsman-- (a) is no longer eligible to be the ombudsman; or (b) is removed from office under section 339O. 339O Removal of ombudsman from office (1) The Governor in Council may remove the ombudsman from office for-- (a) mental or physical incapacity; or (b) misbehaviour. (2) However, if the ombudsman is a commissioner, the Governor in Council may remove the ombudsman from office only on an address of the Legislative Assembly. (3) If an ombudsman who is a commissioner is removed from office under subsection (2), the person also stops being a commissioner. 339P Preservation of ombudsman's rights if a public service officer (1) This section applies if the person appointed as ombudsman was, immediately before the appointment, a public service officer. (2) The person keeps the rights the person has accrued because of employment as a public service officer, or that would accrue in the future to the person, as if service as ombudsman were a continuation of service as a public service officer. (3) If the person's term of appointment as ombudsman ends because the person resigns or for a reason other than a reason mentioned in section 339O-- (a) the person has the right to be employed as a public service officer-- (i) in the department that is the nearest practical equivalent to the department in which the person was employed as a public service officer immediately before the person last stopped being a public service officer; and (ii) at the classification level at which the person was employed as a public service officer immediately before the person last stopped being a public service officer; and (iii) on the remuneration payable to a public service officer on the classification level mentioned in subparagraph (ii); and (iv) for duties appropriate to the classification level mentioned in subparagraph (ii); and (b) the person's service as ombudsman is taken to be service as a public service officer for working out the person's rights as a public service officer. (4) If the person, immediately before the appointment, was a member of the scheme under the Superannuation (State Public Sector) Act 1990, the person continues to be eligible to be, and to be, a member of the scheme. 339Q Preservation of ombudsman's rights if ombudsman becomes public service officer (1) This section applies if, within 12 months after a person's appointment as ombudsman ends, the person is appointed as a public service officer. (2) The person's service as ombudsman under this Act must be regarded as service as a public service officer. 339R Preservation of ombudsman's rights if not previously public service officer (1) This section applies to a person who-- (a) stops holding office as ombudsman because-- (i) the person resigns from office; or (ii) the person's term of appointment to the office ends; and (b) was not a public service officer but held another office under the State immediately before appointment as ombudsman. (2) The person is entitled to be appointed to an office under the State with a classification and remuneration corresponding with or higher than that of the office the person held immediately before appointment as ombudsman and the person's service in the office of ombudsman under this Act must be regarded as service in an office under the State. (3) Subsection (2) does not apply to the person if the person is removed from office as ombudsman under section 339O. (4) This section does not apply to the person if the person is a commissioner. 339S Queensland Workplace Rights Office (1) An office called the Queensland Workplace Rights Office is established. (2) QWRO consists of the ombudsman and the officers of QWRO. 339T Function of QWRO The function of QWRO is to help the ombudsman perform the ombudsman's functions. 339U Control of QWRO The ombudsman controls QWRO. 339V Officers of QWRO Officers of QWRO are appointed under the Public Service Act 2008 and are public service officers. 339W Officers not subject to direction An officer of QWRO is not subject to direction by any person, other than from within QWRO, about-- (a) the way the officer performs the officer's functions under this Act; or (b) the priority given to investigations. 339X Finances of QWRO QWRO is part of the department for the purposes of the Financial Accountability Act 2009. 339Y Delegation by ombudsman The ombudsman may delegate the ombudsman's powers under this chapter, other than this power of delegation, to an appropriately qualified officer of QWRO. 339Z Quarterly report (1) The ombudsman must prepare and give to the Minister a report (a quarterly report) on the activities carried out by QWRO for each quarter of a financial year. (2) A quarterly report must be given to the Minister as soon as practicable after the end of the quarter. (3) A quarterly report must include the following-- (a) details of investigations carried out by QWRO; (b) a summary of information given to employers and employees; (c) details of any other activities undertaken by QWRO. (4) The Minister must table a copy of the quarterly report in the Legislative Assembly within 14 days after receiving it. 339ZA Annual report (1) The ombudsman must give to the Minister a report on the performance of the ombudsman's functions during each financial year. (2) The report must be given as soon as practicable after the end of the financial year, but within 4 months after the year ends. (3) The Minister must table a copy of the report in the Legislative Assembly within 14 days after receiving it. 339ZB Offence of subjecting person to any detriment (1) A person must not subject, or threaten to subject, another person to a detriment because a complaint has been made, or information has been given, to the ombudsman about an industrial matter or work-related matter. Maximum penalty--20 penalty units. (2) For subsection (1), subjecting a person to a detriment includes doing any 1 or more of the following-- (a) terminating the contract under which the person performs work; (b) injuring the person in relation to the terms or conditions on which the person performs work; (c) altering the position of the person to his or her detriment; (d) refusing to employ or engage the person to perform work; (e) discriminating against the person in the terms or conditions on which the person is to be employed or engaged to perform work. 340 Appeal from court or full bench (1A) A defendant who is dissatisfied with a decision of the court in proceedings mentioned in section 248(1)(c) may appeal to the Court of Appeal. (1) A defendant who is dissatisfied with a decision of the court in proceedings mentioned in section 251 may appeal to the Court of Appeal. (2) The Minister, or a person who is dissatisfied with a decision of the full bench, may appeal to the Court of Appeal only on the ground of-- (a) error of law; or (b) excess, or want, of jurisdiction. (3) Subsection (2) applies only if the constitution of the full bench included the president. (3A) Also, a person can not appeal against a decision of the full bench if that decision was itself an appeal against a decision of the commission. (4) The Court of Appeal may-- (a) dismiss the appeal; or (b) allow the appeal, set aside the decision and substitute another decision; or (c) allow the appeal and amend the decision; or (d) allow the appeal, suspend the operation of the decision and remit the industrial cause (with or without directions) to the court or full bench-- (i) for report to the Court of Appeal; or (ii) to act according to law. 341 Appeal from commission, magistrate or registrar (1) The Minister, or a person dissatisfied with a decision of the commission (other than a determination under section 149, a decision under section 273A or a decision made by a full bench the constitution of which included the president) or registrar, may appeal against the decision to the court only on the ground of-- (a) error of law; or (b) excess, or want, of jurisdiction. (2) A person may appeal to the court if dissatisfied with a decision of a magistrate in relation to a matter for which the magistrate has jurisdiction. (3) The court may-- (a) dismiss the appeal; or (b) allow the appeal, set aside the decision and substitute another decision; or (c) allow the appeal and amend the decision; or (d) allow the appeal, suspend the operation of the decision and remit the industrial cause, with or without directions, to the commission, an Industrial Magistrates Court or the registrar to act according to law. (4) Also, if-- (a) under the decision that was appealed, the appellant was sentenced to a term of imprisonment; and (b) the appellant was released from custody under the Industrial Relations (Tribunals) Rules 2000, rule 120; and (c) after the appeal is decided, discontinued or struck out, the appellant is still required to serve all or part of the term of imprisonment; the court may direct an industrial magistrate to issue a warrant for the appellant's arrest. (5) The industrial magistrate must comply with the direction. (6) When arrested, the appellant must be taken to a corrective services facility within the meaning of the Corrective Services Act 2006 to serve the unexpired portion of the term of imprisonment to which the appellant was sentenced. 342 Appeal from commission, magistrate or registrar (1) A person dissatisfied with a decision of the commission (other than a determination under section 149 or a decision under section 273A) may appeal against the decision to the full bench, with the full bench's leave, on a ground other than-- (a) error of law; or (b) excess, or want, of jurisdiction. (2) However, if a person wants to appeal against a decision of the commission both on a ground mentioned in section 341(1) and on a ground mentioned in subsection (1), the person may only appeal against the decision to the full bench, with the full bench's leave. (3) The full bench must, and may only, give leave for subsection (1) or (2) if it considers the matter is important enough, in the public interest, to give leave. (4) Also, the Minister may appeal against a decision of the commission to the full bench. (5) A person dissatisfied with a decision of a magistrate under this Act, other than a decision mentioned in section 341(2), may appeal against the decision to the full bench. (6) A person dissatisfied with a decision of the registrar, other than a decision mentioned in section 287(10), 341(1) or 695 may appeal against the decision to the full bench. (7) A person dissatisfied with a decision of the registrar under section 287 (10) may appeal against the decision to the full bench as it was constituted when the general ruling under section 287 was made. (8) The full bench may-- (a) dismiss the appeal; or (b) allow the appeal, set aside the decision and substitute another decision; or (c) allow the appeal and amend the decision; or (d) allow the appeal, suspend the operation of the decision and remit the industrial cause, with or without directions, to the commission, an Industrial Magistrates Court or the registrar-- (i) for report to the full bench; or (ii) to act according to law. 343 Appeal from registrar (1) A person dissatisfied with a decision of the registrar under section 695 may appeal against the decision to the commission. (2) The commission may-- (a) dismiss the appeal; or (b) allow the appeal, set aside the decision and substitute another decision; or (c) allow the appeal and amend the decision; or (d) allow the appeal, suspend the operation of the decision and remit the matter, with or without directions, to the registrar-- (i) for report to the commission; or (ii) to act according to law. 344 Appeal against stand-downs (1) An employee stood down by an employer under section 98, may appeal to the commission against the stand-down. (2) If the employee is a member of an employee organisation, the organisation may institute and conduct the appeal for the employee. (3) The commission may-- (a) dismiss the appeal; or (b) allow the appeal and order the employee be paid, within a stated period, the wages lost by the employee because of the stand-down; or (c) if the employee remains stood down at the time of the commission's decision-- (i) allow the appeal; and (ii) order the employer to provide for the resumption of work by the employee, immediately or on a stated day; and (iii) make an order about payment of wages mentioned in paragraph (b). (4) If the commission makes an order under subsection (3)(b), it may include in the order default provisions for its enforcement, other than by imprisonment, as if-- (a) the commission were an Industrial Magistrates Court; and (b) the member who makes the order were a magistrate. (5) The order may be filed with the clerk of a Magistrates Court and on filing may be enforced as an order made by an Industrial Magistrates Court. 345 Definition for div 5 In this division-- industrial tribunal means the Court of Appeal, court, full bench or commission. 346 Time limited for appeal (1) An appeal against a decision must be commenced, as required under the rules, within 21 days after-- (a) if the decision is given at a hearing--the announcement of the decision at the hearing; or (b) if the decision is given through the registrar--the release of the decision. (2) However, on an application made during or after the 21 days, the industrial tribunal may allow an appeal to be commenced within a longer period. 347 Stay of decision appealed against (1) This section applies if an appeal is made under this part. (2) The industrial tribunal may order that the decision being appealed be wholly or partly stayed pending-- (a) the determination of the appeal; or (b) a further order of the industrial tribunal. 348 Nature of appeal (1) An appeal to an industrial tribunal is by way of re-hearing on the record. (2) However, the industrial tribunal may hear evidence afresh, or hear additional evidence, if the industrial tribunal considers it appropriate to effectively dispose of the appeal. 349 Finality of decisions (1) This section applies to the following decisions-- (a) a decision of the Court of Appeal under section 340; (b) a decision of the court under section 341; (c) a decision of the full bench under section 342; (d) a decision of the commission under section 343 or 344; (e) another decision of the court, the full bench, the commission, an Industrial Magistrates Court or the registrar. (2) The decision-- (a) is final and conclusive; and (b) can not be impeached for informality or want of form; and (c) can not be appealed against, reviewed, quashed or invalidated in any court. (3) The industrial tribunal's jurisdiction is exclusive of any court's jurisdiction and an injunction or prerogative order can not be issued, granted or made in relation to proceedings in the court within its jurisdiction. (4) This section does not apply to a decision mentioned in subsection (1) to the extent that this Act or another Act provides for a right of appeal from the decision. (5) In this section-- industrial tribunal includes an Industrial Magistrates Court and the registrar. 350 Appointment of inspectors (1) The Governor in Council may, by gazette notice, appoint a person as the chief inspector. (2) The chief executive may appoint a person as an inspector. (3) A person appointed as an inspector-- (a) must be-- (i) a public service officer or employee; or (ii) an inspector under the Vocational Education, Training and Employment Act 2000; or (iii) a person with the qualifications prescribed under a regulation; and (b) must have the necessary expertise or experience to be an inspector. (4) An inspector, while the inspector holds the appointment, is also an inspector for-- (a) the Pastoral Workers' Accommodation Act 1980; and (b) the Trading (Allowable Hours) Act 1990; and (c) the Workers' Accommodation Act 1952; and (d) the Child Employment Act 2006. (4A) Also, an inspector, while the inspector holds the appointment, is an authorised person of the Workers' Compensation Regulatory Authority under the Workers' Compensation and Rehabilitation Act 2003, but only for the purposes of chapter 4, part 6 of that Act. (5) An inspector is to be employed under the Public Service Act 2008. 351 Functions (1) An inspector must-- (a) ensure industrial instruments, permits and orders are, as far as possible, complied with; and (b) investigate and, when necessary, take action to deal with alleged contraventions of this Act; and (c) inform employees and employers of their rights and obligations under this Act; and (d) perform other functions-- (i) given to an inspector under this or another Act; or (ii) prescribed under a regulation. (2) In doing so, the inspector must, when appropriate, have particular regard to-- (a) the needs of employees in a disadvantaged bargaining position (including for example, women, people from a non-English speaking background, young people, apprentices, trainees and outworkers); and (b) helping employees to balance work and family responsibilities. 352 Powers (1) An inspector has the power to do all things necessary or convenient to be done for, or in connection with, the performance of the inspector's functions. (2) An inspector may exercise a power in relation to a person only if the inspector-- (a) first produces his or her identity card for the person's inspection; or (b) has the inspector's identity card displayed so it is clearly visible to the person. (3) However, if for any reason it is not practicable to comply with subsection (2) before exercising the power, the inspector must produce the identity card for the person's inspection at the first reasonable opportunity. (4) For the purposes of an inspector exercising powers under this Act while acting as an inspector under the Child Employment Act 2006-- (a) a reference in this Act to an employee includes a child to whom that Act applies; and (b) a reference in this Act to an employer includes a person who engages, or arranges for, a child to whom that Act applies to perform work at the direction of the person, whether the child works for gain or reward or on a voluntary basis. 353 Entry to places (1) An inspector may, without the occupier's consent, enter-- (a) a public place; or (b) a workplace when-- (i) the workplace is open for carrying on business; or (ii) the workplace is otherwise open for entry. (2) If the workplace is on or near domestic premises, an inspector may, without the occupier's consent-- (a) enter the land around the premises to an extent that is reasonable to contact the occupier; or (b) enter part of the place the inspector reasonably considers members of the public are ordinarily allowed to enter when they wish to contact the occupier; or (c) enter that part of the place the inspector reasonably believes clothing outwork is being, has been, or is about to be carried on. (3) However, if it is practicable to do so before entering the land, the inspector must first tell the occupier of the inspector's intention to gain access to the workplace. (4) In this section-- domestic premises means premises usually occupied as a private dwelling house. workplace means a place in or on which the inspector reasonably suspects a calling is, has been, or is about to be carried on. 354 General powers after entering workplaces (1) This section applies to an inspector who enters a workplace under section 353. (2) However, if an inspector enters a workplace to get the occupier's consent to enter the workplace, this section applies to the inspector only if the consent is given or the entry is otherwise authorised. (3) For monitoring or enforcing compliance with this Act, the inspector may-- (a) inspect, photograph or film any part of the place or anything at the workplace; or (b) copy a document at the workplace; or (c) take into or onto the workplace the persons, equipment and materials the inspector reasonably requires for exercising a power under this part; or (d) require a person at the workplace to give the inspector reasonable help to exercise the powers under paragraphs (a) to (c). (4) When making a requirement under subsection (3)(d), the inspector must warn the person it is an offence to fail to comply with the requirement, unless the person has a reasonable excuse. (5) A person required to give reasonable help under subsection (3)(d) must comply with the requirement, unless the person has a reasonable excuse. Maximum penalty--40 penalty units. 355 Power to require documents to be produced (1) An inspector may require a person to produce for inspection, at a reasonable time and place nominated by the inspector, a document relating to employees, including, for example, a time sheet or pay sheet. (2) The person must produce the document, unless the person has a reasonable excuse. Maximum penalty--40 penalty units. (3) The inspector may keep the document to copy it. (4) If the inspector copies it, the inspector may require the person responsible for keeping the document to certify the copy as a true copy of the document. (5) The person must certify the copy, unless the person has a reasonable excuse. Maximum penalty--40 penalty units. (6) The inspector must return the document to the person as soon as practicable after copying it. (7) To remove any doubt, it is declared that the powers of an inspector under this section-- (a) are additional to the powers under section 371; and (b) do not limit, and are not limited by, any other powers of an inspector under this Act. 356 Power to require information (1) An inspector may, during business hours-- (a) question with respect to matters under this Act or under a relevant industrial instrument-- (i) an employer in a calling; or (ii) a person found in or on a place in or on which the inspector reasonably suspects a calling is, has been, or is about to be carried on; and (b) require the employer or person to give the inspector information to help the inspector ascertain whether this Act, or a relevant industrial instrument, permit or order are being, have been or will be complied with, or should be given operation in relation to the calling. (2) When making the requirement, the inspector must warn the employer or person it is an offence not to comply with the requirement, unless the person has a reasonable excuse. (3) The person must comply with the requirement, unless the person has a reasonable excuse. Maximum penalty--40 penalty units. (4) It is a reasonable excuse for an individual to fail to comply with the requirement if doing so might tend to incriminate the individual. (5) The power to question an employee includes power to question the employee out of anyone else's hearing. 357 Power to require name and address (1) An inspector may require a person, for this Act, to state the person's name and address. (2) When making the requirement, the inspector must warn the person it is an offence to fail to state the person's name or address, unless the person has a reasonable excuse. (3) The inspector may require the person to give evidence of the correctness of the stated name or address if the officer reasonably suspects the stated name or address is false. (4) A person must comply with a requirement under subsection (1) or (3), unless the person has a reasonable excuse. Maximum penalty--40 penalty units. 358 Paying employee's wages etc. to inspector (1) On an inspector's written demand, an employer must pay-- (a) an employee's unpaid wages, including an unpaid tool allowance required to be paid under an order made under section 138; and (b) for an eligible employee-- (i) the unpaid contributions payable under a relevant industrial instrument for the employee by the employer to a complying superannuation fund; and (ii) an amount based on the return that would have accrued had the contribution been properly paid to the fund. Maximum penalty--40 penalty units. (2) The payment must be made-- (a) under subsection (1)(a)--to the inspector; or (b) under subsection (1)(b)-- (i) into a complying superannuation fund in the time specified by the inspector; or (ii) if not paid into a complying superannuation fund in the specified time--to the inspector. (3) A demand must not be made, or need not be complied with, if it relates or would relate to unpaid wages for which an order for recovery could not be made on an application under section 399. (4) An Industrial Magistrates Court that hears and decides a complaint against an employer for an offence against subsection (1)(a) or (b)-- (a) apart from a penalty that it may impose; and (b) whether or not it finds the employer guilty; may order the employer to pay the employee the amount the court finds, on the balance of probabilities, is payable to the employee. (5) A court that finds an employer guilty of an offence against subsection (1) (b) may make, in relation to the employer, an order that a magistrate may make on an application made under section 408. (6) If an order is made, section 408 applies to it. (7) In this section-- employee includes a former employee. 359 Inspector's obligation for amounts paid on demand (1) An inspector who is paid an amount mentioned in section 358 must immediately give the payer a receipt for the amount. (2) The receipt is a full discharge to the employer concerned for the amount stated in the receipt. (3) The inspector must pay the amount to-- (a) for a superannuation contribution-- (i) if the employee is employed by the employer--the approved superannuation fund; or (ii) if the employee is no longer employed by the employer- - (A) the approved superannuation fund; or (B) a complying superannuation fund; or (C) a superannuation fund nominated by the employee; or (D) an eligible rollover fund; or (E) if the amount is less than the amount of total benefits that may revert to an employee under the Superannuation Industry (Supervision) Act 1993 (Cwlth)--the employee; or (b) otherwise--the employee. (4) If the inspector has not accounted for the amount within 30 days after receiving it, the inspector must pay the amount immediately to the department. (5) The department must account for the amount in the way required by subsection (3). (6) However, the department must pay the amount into the unclaimed moneys fund if-- (a) the department can not locate the employee after making reasonable inquiries; or (b) the employee does not nominate a superannuation fund for subsection (3) if requested by an inspector to do so. (7) In this section-- employee includes a former employee. superannuation contribution means-- (a) an employer's contribution to an approved superannuation fund to the credit of an eligible employee, which is unpaid; or (b) an amount mentioned in section 358(1)(b)(ii). 360 Obstructing inspectors A person must not obstruct an inspector in the exercise of a power, unless the person has a reasonable excuse. Maximum penalty--40 penalty units. 361 Impersonating inspectors A person must not pretend to be an inspector. Maximum penalty--40 penalty units. 362 Validity of inspector's conduct despite administrative contravention The failure of an inspector to comply with section 352(2) or (3) or schedule 2, part 3, section 9-- (a) does not affect the lawfulness or effect of an act done or omission made by the inspector for this Act; but (b) makes the inspector liable to disciplinary action. 363 Definitions for pt 1 In this part-- authorised industrial officer means a person who holds an authority in force under section 364. record includes a computer record if-- (a) a print-out or disk containing the contents of the record relevant to this part are separate from all other material in the print-out or disk; and (b) the print-out or disk gives the particulars required by this part accurately and in a way convenient for an inspection under this part. time and wages record-- (a) for an industrial instrument employee--see section 366; and (b) for a non-industrial instrument employee--see section 367. 364 Authorising industrial officers (1) The registrar, on application by an organisation, may issue an officer or employee of the organisation with an authority under this section. (2) An authority may be subject to conditions stated in it. (3) A person who holds an authority that is in force (an authorised industrial officer) may exercise the powers of an authorised industrial officer under this part. (4) The authority-- (a) must be applied for in the way prescribed under a regulation; and (b) is in force for the term stated in it, unless it sooner stops being in force for a reason mentioned in paragraph (c); and (c) stops being in force-- (i) on its revocation; or (ii) on its suspension, for the period of suspension; or (iii) on its holder ceasing to be an officer or employee of the organisation that made the application or ceasing to be an authorised industrial officer acceptable to the organisation. (5) When an authority stops being in force under subsection (4)(c)(iii), the organisation who applied for it-- (a) must notify the registrar within 14 days after the authorisation stops being in force; and (b) on the registrar's request, must surrender the authority to the registrar. Maximum penalty for subsection (5)--16 penalty units. 365 Revocation and suspending industrial officer's authorisation (1) This section applies if, on application by an employer, the commission considers an authorised industrial officer has-- (a) breached a condition of the authorisation; or (b) contravened section 372(2); or (c) exercised the officer's power to enter in an unreasonable or vexatious way; or (d) made unreasonable, vexatious or inappropriate use of information obtained from inspection of a record made available because of the officer's power as an authorised industrial officer. (2) The commission may-- (a) revoke the officer's authorisation; or (b) suspend the officer's authorisation for a period it considers appropriate; or (c) attach conditions to the officer's authorisation it considers appropriate. 366 Time and wages record--industrial instrument employees (1) An employer must keep, at a workplace of the employer in Queensland, a time and wages record that contains the following particulars for each industrial instrument employee-- (a) the employee's full name and address; (b) the employee's date of birth; (c) for each pay period-- (i) the employee's designation; and (ii) the name of the industrial instrument or permit under which the employee is working; and (iii) the number of hours worked by the employee during each day and week, the times at which the employee started and stopped work, and details of work breaks including meal breaks; and (iv) if the industrial instrument or permit provides for-- (A) a weekly, daily or hourly wage rate--details of the wage rate for each week, day, or hour at which the employee is paid; or (B) piecework rates--details of the piecework performed and the rate at which payment is made to the employee; and (v) the gross and net wages paid to the employee; and (vi) details of any deductions made from the wages; and (vii) contributions made by the employer to a superannuation fund; (d) if an employee's entitlement to long service leave is worked out under section 47--the total hours, other than overtime, worked by the employee since the start of the period to which the entitlement relates, worked out to and including 30 June in each year; (e) details of sick leave credited or approved, and sick leave payments to the employee; (f) the date when the employee became an employee of the employer; (g) if appropriate, the date when the employee stopped employment with the employer; (h) other particulars necessary to show compliance with the hours of work, wage rates and general employment conditions provided under the instrument, permit or order under chapter 5, part 5. Maximum penalty--40 penalty units. (2) The employer must ensure the time and wages record clearly states the employer's full name. Maximum penalty--40 penalty units. (3) If the industrial instrument does not limit the employee's daily or weekly working hours, particulars of the employee's starting and finishing times each day need not be recorded, unless the instrument requires it. (4) The employer must keep the record for 6 years. Maximum penalty--40 penalty units. (5) On the employee's request, the employer must give the employee a certificate stating the total hours recorded under subsection (1)(d) for the employee, worked out to the previous 30 June. Maximum penalty--40 penalty units. (6) In this section-- employer includes an employer to whom an order made under section 140A applies. industrial instrument employee means-- (a) a person who-- (i) is or has been employed by the employer; and (ii) works or has worked under an industrial instrument or permit; or (b) a person who is or has been a student to whom an order made under section 140A applies. 367 Time and wages record--non-industrial instrument employees (1) An employer must keep, at a workplace of the employer in Queensland, a time and wages record that contains the following particulars for each non- industrial instrument employee-- (a) the employee's full name and address; (b) the employee's date of birth; (c) for each pay period-- (i) the employee's designation; and (ii) the number of hours worked by the employee during each day and week; and (iii) the employee's wage rate; and (iv) the gross and net wages paid to the employee; and (v) details of any deductions made from the wages; (d) if an employee's entitlement to long service leave is worked out under section 47--the total hours, other than overtime, worked by the employee since the start of the period to which the entitlement relates, worked out to and including 30 June in each year. Maximum penalty--40 penalty units. (1A) Subsection (1)(b) and (c)(ii) does not apply to an employee who is excluded from the operation of a general ruling for the Queensland minimum wage under section 287(5). (2) The employer must ensure the time and wages record clearly states the employer's full name. Maximum penalty--40 penalty units. (3) The employer must keep the record for 6 years. Maximum penalty--40 penalty units. (4) On the employee's request, the employer must give the employee a certificate stating the total hours recorded under subsection (1)(d) for the employee, worked out to the previous 30 June. Maximum penalty--40 penalty units. (5) In this section-- non-industrial instrument employee means a person who-- (a) is or has been employed by the employer; and (b) works or has worked other than under an industrial instrument or a permit. 368 Employee register (1) An employer must keep an employee register that contains the following particulars for each employee-- (a) the employee's full name and residential address; (b) for a person who is residing other than at the person's permanent residence when the person becomes an employee--the person's permanent residential address and the address of the person's other residence; (c) the calling in which the employee is engaged; (d) the date when the employee became an employee of the employer; (e) if appropriate, the date when the employee stopped employment with the employer. Maximum penalty--40 penalty units. (2) If an employer has more than 100 employees and the register is not an alphabetical index itself, the employer must keep an alphabetical index of the employee's names. Maximum penalty--40 penalty units. (3) The index may be in a loose leaf, computer print-out or card index form. (4) Within 14 days after a change in an employee's calling, the employer must enter in the register particulars of the change and the date when the change happened. Maximum penalty--40 penalty units. (5) An employee must inform the employer of-- (a) the employee's residential address whenever asked by the employer; and (b) if the employee changes the employee's residential address--the new address immediately. Maximum penalty--40 penalty units. (6) Particulars must be entered in a register opposite and relative to the name of the employee to which they relate. (7) If an employer carries on business at more than 1 place, the employer must keep a register and index for each place. 369 Records to be kept in English A record or index kept under this part must be in the English language. 370 Notation of wages details (1) When paying an employee wages, the employer must state how the payment is made up by giving a written statement to the employee. Maximum penalty--40 penalty units. (2) The statement may be given on the employee's pay envelope or advice and must include the following particulars-- (a) the date of payment; (b) the period covered by the payment; (c) the number of hours covered by the payment at-- (i) ordinary wage rate; and (ii) overtime wage rate; (d) the ordinary hourly rate and the amount paid at that rate; (e) the overtime hourly rate and the amount paid at that rate; (f) the gross wages paid; (g) the net wages paid; (h) details of any deductions made from the wages; (i) the amount of contribution paid to a superannuation fund. (3) The statement must also clearly state the employer's full name. Maximum penalty--40 penalty units. 371 Inspection of time and wages record--inspector (1) An inspector may inspect a time and wages record at a workplace in the employer's business hours. (2) The employer must allow the inspector to inspect the record. Maximum penalty--40 penalty units. (3) Subsection (4) applies if-- (a) an employer does not produce the record to the inspector; or (b) an inspector is obstructed during the inspection of the record; or (c) an inspector wants to inspect the record of a former employer. (4) The inspector may, by notice, require the employer or former employer to produce the record-- (a) at-- (i) a stated workplace of the employer; or (ii) for an employer who has no official workplace or a former employer--a reasonably convenient place nominated by the inspector; and (b) at a stated reasonable time. (5) If the employer or former employer does not produce the record as required by the notice, the employer or former employer is taken to have failed to keep the record, unless he or she has a reasonable excuse. (6) The notice may be given by post or in another way. 372 Right of entry--authorised industrial officer (1) An authorised industrial officer may enter a workplace at which an employer carries on a calling of the officer's organisation, during the employer's business hours, to exercise a power under section 373. (2) On entering the workplace, the officer must first-- (a) notify the employer or the employer's representative of the officer's presence; and (b) produce the officer's authorisation, if required by the employer or representative. (3) An employer must not refuse an authorised industrial officer entry to the workplace if the officer complies with subsection (2). Maximum penalty--27 penalty units. (4) If the officer does not comply with subsection (2), the officer may be treated as a trespasser. (5) Subsection (2) does not apply if on entering the workplace, the officer discovers that neither the employer nor an employer's representative having charge of the workplace is present. 373 Right to inspect and request information--authorised industrial officer (1) This section applies to an authorised industrial officer who has entered a workplace under section 372. (2) The officer may inspect the time and wages record of-- (a) a member employee; or (b) an employee who is eligible to become a member of the officer's organisation; or (c) an employee who is a party to a QWA or ancillary document, but only with the employee's written consent. (3) The employer-- (a) must allow the officer to inspect the record for an employee mentioned in subsection (2)(a) or (b), unless the employee has made a written request to the employer that the record not be available for inspection by an authorised industrial officer or a particular authorised industrial officer; and (b) must not allow the officer to inspect the record for-- (i) an employee who has made a written request to the employer that the record not be available for inspection by an authorised industrial officer or a particular authorised industrial officer; or (ii) an employee mentioned in subsection (2)(c), unless the employee has given written consent. Maximum penalty--27 penalty units. (3A) The officer may make a copy of the record, but can not require any help from the employer. (4) A person must not, by threats or intimidation, persuade or attempt to persuade an employee or prospective employee to make, or refuse to make, a written request to the employer or prospective employer that the record not be available for inspection by an authorised industrial officer. Maximum penalty--27 penalty units. (5) If the employer keeps particulars other than those mentioned in section 366 in the record, the employer need not make the other particulars available for inspection. (6) The officer may discuss matters under this Act with the following persons during working or non-working time-- (a) the employer; (b) a member employee, or an employee who is eligible to become a member of the officer's organisation. (7) The officer may discuss any other matter with a member employee, or an employee who is eligible to become a member of the officer's organisation, during non-working time. (8) A person must not obstruct the officer exercising a power under subsection (6) or (7). Maximum penalty--27 penalty units. (9) The officer must not-- (a) wilfully obstruct the employer, or an employee during the employee's working time; or (b) contravene a requirement of this section. Maximum penalty--27 penalty units. (10) A person must not act as an authorised industrial officer under this section, unless the person holds a current authorisation. Maximum penalty--27 penalty units. (11) In this section-- member employee means-- (a) an employee who is a member of the authorised industrial officer's organisation; or (b) a former employee who was, or is, a member of the officer's organisation. time and wages record means the time and wages record required to be kept under section 366. 374 Inspection of employee register and index--registrar (1) The registrar may inspect an employer's employee register and index at the employer's workplace during the employer's business hours. (2) The employer must allow the registrar to inspect the record or index. Maximum penalty--40 penalty units. (3) The registrar may, by notice, direct the employer to give the register or index to a stated person, at a stated reasonable time and place, if-- (a) the registrar requires a register or index for the taking of a ballot; or (b) the court or commission orders the register or index be made available for another purpose. (4) The employer must comply with the direction. Maximum penalty for subsection (4)--40 penalty units. 375 Inspection of time and wages book--employees (1) An employee may inspect the time and wages record for the employee's particulars relating to the 12 month period before the inspection. (2) At the employer's discretion, the employer may give the particulars to the employee in writing. (3) Unless the employer otherwise consents, the employee may inspect the record only-- (a) once in any 12 month period; and (b) during the employer's business hours, but outside the employee's working time. 376 Definitions for pt 2 In this part-- assignment includes disposition and charge, whether legal or equitable. contracted work means work that is, or is to be, performed under a contract or undertaking (whether written or unwritten). employer, in division 2, means the person-- (a) with whom a prime contractor has contracted to perform work; or (b) who has an obligation to a prime contractor to perform work. fixed rate, in division 3, means the rate applicable under-- (a) for an apprentice or trainee--section 136; or (b) for an employee under an industrial instrument or permit--the industrial instrument or permit; or (c) for an employee who is entitled to the Queensland minimum wage and in relation to whom paragraph (a) or (b) does not apply-- a general ruling for the Queensland minimum wage. mine, in division 4, means a mine within the meaning of the Mining and Quarrying Safety and Health Act 1999. mortgagee, in division 4, means a person entitled to payment under the security of an instrument of mortgage, crop lien, stock mortgage or bill of sale. mortgagor, in division 4, means a person liable to pay a mortgagee under an instrument of mortgage, crop lien, stock mortgage or bill of sale. prime contractor means-- (a) a person (the contractor) who contracts with someone else for the performance of work by the other person, or at whose request, or on whose credit or behalf and with whose knowledge and consent, work is performed; or (b) a person, claiming under the contractor, whose rights are acquired after the work begins. rate, in division 3, includes price. subcontractor means a person who contracts with an employer to perform work to discharge the employer's obligation to a prime contractor. 377 References to service A reference in this part to service on a person includes reference to service on the person's agent. 378 Wages are first charge on amounts payable to employer (1) Wages payable to employees employed on any contracted work are, subject to the prime contractor's rights as prescribed under this Act, a first charge on the amount payable to the employer by the prime contractor for the work. (2) Until a notice of attachment under section 381 is served on the prime contractor, the prime contractor may pay the employer all amounts payable for the contracted work. 379 Assignment of amount payable ineffectual against claims for wages (1) This section applies to an assignment by an employer of amounts that have become, or are to become, payable to the employer by a prime contractor for contracted work. (2) The assignment is of no effect as against wages payable, or to become payable, to employees employed by the employer in performance of the work. (3) Subsection (2) does not apply if the assignment is to the employees employed by the employer in performance of the work concerned for wages payable, or to become payable, to them for performing the work. 380 Amounts paid or payable to employer to be applied in payment of wages (1) This section applies to amounts paid or payable to an employer by a prime contractor for contracted work. (2) The amount is not liable to be attached or charged, except by employees mentioned in subsection (5), until all wages payable, or to become payable, to the employees have been properly paid to them or have been secured to them in a way approved by a magistrate. (3) The employer must apply the amounts received, to the extent necessary, in payment of wages payable, or to become payable, to employees employed by the employer in performance of work for which the amounts are received. Maximum penalty--40 penalty units. (4) The employer must keep an accurate written account of the amounts received from the prime contractor, and of the way the amounts have been disbursed or disposed of. Maximum penalty--40 penalty units. (5) The employer must produce the account for inspection to an employee mentioned in subsection (3)-- (a) whose wages are more than 8 days in arrears and are not paid when demanded; and (b) who asks to see the account. Maximum penalty--40 penalty units. (6) The employer must allow the employee to make a copy of the account. Maximum penalty--40 penalty units. 381 Attachment notices An employee, whose wages remain unpaid for 24 hours after they are payable and have been demanded by the employee, may serve the prime contractor with an attachment notice in the approved form. 382 Effect of attachment notice (1) This section applies if an attachment notice is served on the prime contractor. (2) The prime contractor must retain from the amounts payable, or to become payable, by the prime contractor to the employer for the contracted work an amount sufficient to satisfy-- (a) the claim for wages specified in the notice; and (b) all further claims for wages specified in notices of attachment served on the prime contractor within 7 days after the service of the first notice. (3) At the end of the 7 day period, the amount claimed as wages and specified in the notices is attached in the prime contractor's hands, and must be kept by the prime contractor until-- (a) a magistrate orders to whom, and in what way, the amount must be paid; or (b) the prime contractor deals with the amount under subsection (4); or (c) the notices are withdrawn. (4) After being served with a notice, the prime contractor may pay the amount to which the notice relates to a clerk of the Magistrates Court until-- (a) a magistrate makes an order in relation to the amount; or (b) the notice is withdrawn. (5) The payment-- (a) must be accompanied by the notice or a copy of it; and (b) is a full discharge of the prime contractor from liability for the amount paid and costs of proceedings for the amount. (6) An amount paid to a clerk of the Magistrates Court may be paid out only-- (a) on the order of a magistrate; or (b) if the relevant attachment notice is withdrawn. (7) A prime contractor who fails to keep, or to pay under subsection (4), an amount required by subsection (2) or (3) to be kept is personally liable to each employee in the amount of the employee's claim for wages stated in the employee's attachment notice served on the prime contractor. (8) An employee who has served an attachment notice on a prime contractor may withdraw the notice by giving notice of withdrawal to-- (a) the prime contractor; and (b) the employer to whom amounts are payable, or are to become payable, by the prime contractor. 383 Orders for payment by prime contractor or clerk of the court (1) Subsection (2) applies if an employee who served an attachment notice on a prime contractor obtains judgment from a magistrate against the employer for the claim for wages. (2) The magistrate may order the judgment be satisfied, wholly or partly, by payment of a stated amount-- (a) from amounts paid to the clerk of the Magistrates Court under section 382(4); or (b) if no amount was paid to the clerk under section 382(4) or the amount paid was not enough to cover the amount ordered to be paid by the magistrate--by the prime contractor. (3) In deciding the amount that should be ordered to be paid for an employee's claim, the magistrate must take into account the existence of claims for wages of other employees of the employer of which the magistrate has knowledge. (4) Subject to any appeal against the magistrate's decision, the clerk or prime contractor must pay the amount stated in the relevant order to the employee from the amounts-- (a) paid to the clerk under section 382(4); or (b) attached and kept in the hands of the prime contractor. (5) Payment must be made within 21 days after a copy of the order is served on the clerk or prime contractor. (6) If an appeal is started and notice of it is served, the clerk or prime contractor must continue to keep or hold the amounts from which payment is to be made until the appeal is finally decided or discontinued. (7) The prime contractor is not liable to a greater extent than the amount actually payable by the prime contractor to the employer when-- (a) the order is served; or (b) payment is made under the order; whichever is the greater. 384 Employees to be paid according to when attachment notices are served (1) An amount attached in the hands of a prime contractor, or paid to a clerk of the Magistrates Court, is to be paid in priority according to the order of the service of the relevant attachment notices. (2) However, for this section, all notices served within 7 days after the service of the first notice are-- (a) taken to have been served simultaneously with the first notice; and (b) accorded equal priority to distribution of the amount attached or paid. (3) The claims for wages of all employees who are taken to have served notices simultaneously must be paid in full, unless the amounts attached in the hands of the prime contractor or held by the clerk are insufficient for the purpose. (4) If the amounts are insufficient for the purpose, the claims are to abate in equal proportions among themselves. (5) Subsection (1) is subject to sections 381 to 383. 385 Employee may sue prime contractor (1) Subsection (2) applies if-- (a) a prime contractor is served with a copy of the magistrate's order made under section 383(2); and (b) the amount stated in the order and payable by the prime contractor is not paid in accordance with the order. (2) The employee in whose favour the order is made may, in an Industrial Magistrates Court and in the employee's own name, sue the prime contractor for the amount stated in the order and unpaid, by way of any action or proceedings the employer could have brought against the prime contractor as if-- (a) there had been no attachment of amounts under this part; and (b) the amounts required by the attachment under section 381 to be kept were payable to the employer and unpaid. (3) The employee's entitlement is subject to the prime contractor's right to set off against the employee's claim all amounts-- (a) properly paid by the prime contractor to the employer under section 378(2); and (b) the employer was, when the notice was served on the prime contractor, liable to pay the prime contractor for a breach, or nonperformance, of the contract or undertaking in performance of which the relevant work is or is to be performed. 386 Cessation of attachment not to prejudice prime contractor (1) This section applies if an order under section 383 stops operating because- - (a) of satisfaction of the employee's claim; or (b) it is set aside. (2) A prime contractor who has paid an amount in accordance with the order before receiving notice of the satisfaction or setting aside is not to be prejudiced in relation to the payment because the order stopped operating. 387 Discharge by employee for payment received An employee who receives an amount for a claim for wages to which an order under section 383 relates must sign a discharge for the amount, in the approved form if asked by the person making the payment. 388 Remedy of subcontractor's employees (1) If an employer has let the performance of work to a subcontractor, an employee employed by the subcontractor in that work has the same rights and remedies for a claim for wages against the employer under this division as an employee of the employer has against a prime contractor. (2) For subsection (1), in construing this division (other than section 376 and this section) 'employer' is substituted for 'prime contractor' and 'subcontractor' is substituted for 'employee'. 389 Prime contractor's right to reimbursement (1) This section applies if-- (a) a prime contractor has paid a claim for wages payable to an employee of the employer, in satisfaction of the prime contractor's obligations under this division; and (b) either of the following happens-- (i) for an employer who is a corporation--winding-up proceedings are commenced; (ii) for an employer who is an individual--the employer's assets are distributed in insolvency of the employer or in a composition with the employer's creditors. (2) The prime contractor is taken to have a claim for wages against the employer's assets, which is a preferential claim, as if the prime contractor were an employee of the employer to whom wages were payable by the employer. (3) This section applies only to the extent that a State law may validly apply to the distribution of assets. 390 Magistrate may hear claim for wages ex parte A magistrate may hear and decide proceedings for a claim for wages in the absence of a person to whom the originating process is directed on proof, on oath or affirmation, of the service of the process. 391 Wages etc. to be paid without deduction (1) If an employer employs an employee to perform work for a fixed rate, the employer must pay the employee the fixed rate without deduction, other than a deduction authorised by-- (a) a relevant industrial instrument; or (b) this division; or (c) the employee's written consent. (2) An employer must pay an apprentice or trainee the fixed rate without deduction, other than a deduction mentioned in subsection (1)(a), (b) or (c) until-- (a) the apprentice or trainee is suspended or the apprentice's or trainee's training contract is cancelled; or (b) the Training and Employment Recognition Council has allowed the employer to stand down the apprentice or trainee under the Vocational Education, Training and Employment Act 2000. (3) If-- (a) an employer employs an employee to perform work for a rate agreed between the employer and the employee; and (b) either-- (i) the rate for the work is not fixed by a relevant industrial instrument or permit; or (ii) the fixed rate is less than the agreed rate; the employer must pay the employee the agreed rate without deduction, other than a deduction authorised by this division or the employee's written consent. (4) A contract or authority is void to the extent it provides for a deduction to be made from wages in contravention of this section. 392 Paying apprentices or trainees for supervised training (1) Time spent by an apprentice or trainee undertaking supervised training is taken to be-- (a) time worked for the employer; and (b) ordinary working hours when calculating the apprentice's or trainee's wages and employment conditions. Example of paragraph (b)-- A trainee is required to work 38 ordinary working hours a week under an award. In a particular week, the trainee spends 30 hours working for the employer and 10 hours at college. The trainee is entitled to be paid 38 hours ordinary time (which includes 10 hours ordinary time for the time spent at college) and 2 hours overtime. (2) Subsection (1) applies irrespective of the way the supervised training is delivered. Examples of ways supervised training can be delivered-- block release, day release, workplace-delivered training or correspondence (3) Despite subsection (1), wages are not payable for time spent by an apprentice or trainee undertaking supervised training when the apprentice or trainee is-- (a) a school-based apprentice or trainee; or (b) the subject of a decision of the approving authority under section 162 or 211. (4) In this section-- supervised training, for an apprentice or trainee, means training up to the maximum period required, under the Vocational Education, Training and Employment Act 2000, to be delivered by a supervising registered training organisation during the apprenticeship or traineeship. 393 Paying wages (1) An employee's wages must be paid at least monthly to the employee. Maximum penalty--16 penalty units. (2) The wages must be paid-- (a) in Australian currency; or (b) with the employee's written consent-- (i) wholly or partly to the employee's credit in an account with a financial institution nominated by the employee; or (ii) by cheque of a type mentioned in subsection (5), draft, money order or electronic fund transfer; or (c) in another way allowed under a relevant industrial instrument. Maximum penalty--16 penalty units. (3) If-- (a) wages are to be paid in cash; and (b) the amount is not a multiple of 5c; the amount may be rounded to the nearest amount that is a multiple of 5c, even if this involves a reduction. (4) If wages are to be paid other than in cash, they are to be paid without deduction of any charge made because of the way payment is made. Maximum penalty--16 penalty units. (5) Except with the employee's written consent, a cheque by which wages are paid-- (a) must be payable to a bearer on demand; and (b) must not be crossed. (6) If wages are payable to an employee when the employee stops employment with the employer, the wages must be paid to the employee within 3 days after the employment stops, or for a shorter period stated in an industrial instrument, unless-- (a) section 395 applies; or (b) the employer has complied with an inspector's demand under section 358. Maximum penalty--40 penalty units. (7) If an employee accepts for wages a cheque, draft or money order that is dishonoured, the employee may recover from the employer by action in a court of competent jurisdiction as a debt payable to the employee-- (a) the wages payable; and (b) a reasonable amount for damages suffered by the employee because of the dishonour. (8) A contract or authority is void to the extent it provides for payment of wages other than under this section. 394 Contract not to stipulate mode of spending wages (1) Subject to this division, an employer is not, directly or indirectly, to impose as a condition, express or implied, of an employee's employment, a provision about the place where, way in which, or person with whom an employee's wages, or a part of the wages, are to be spent. Maximum penalty--16 penalty units. (2) An employer must not dismiss an employee because the employee's wages, or a part of the wages, are spent, or not spent, at a place, in a way, or with a person. 395 Payment of unpaid wages if employee's whereabouts unknown (1) Subsection (2) applies if-- (a) an employer can not comply with section 391 because the former employee's whereabouts are unknown to the employer and can not be discovered by the employer with reasonable diligence; and (b) the inability continues for 30 days after cessation of employment by the former employee. (2) The employer, immediately at the end of the 30 days, must pay the wages payable to the former employee to the nearest clerk of the Magistrates Court. Maximum penalty--40 penalty units. (3) The receipt of the clerk for the payment is a full discharge to the employer for the amount stated in the receipt. (4) The clerk must pay the amount-- (a) if the former employee's whereabouts are discovered--to the former employee; or (b) if at the end of a further 30 days, the amounts have not been paid to the former employee--to the department's funds for the former employee. (5) This section does not apply if the employer has complied with an inspector's demand made under section 358. 396 Overpaid wages (1) This division does not prevent an employer recovering an amount paid to an employee that the employee is not entitled to because of absence from work. (2) Without limiting the employer's right to recover, the employer may recover an amount to which the employee is not entitled by deducting amounts from the employee's wages for a subsequent pay period or periods. (3) Deductions under subsection (2)-- (a) must be commenced within 1 year after the payment; and (b) may extend over a period of 6 years after the payment. (4) A deduction can not be made in an amount that would reduce the wages payable to the employee for a pay period to less than an amount prescribed under a regulation. 397 Deduction of wages in lieu of notice of termination (1) This section applies if-- (a) an industrial instrument requires an employee to give notice of termination of employment for a specified period; and (b) an employee ceases the employment without giving the employer the notice for the specified period. (2) The employer may deduct from the employee's wages an amount stated by the instrument to be forfeited or payable to the employer if notice of termination is not given for the period specified. 398 Minor may recover unpaid wages A minor may bring proceedings under this Act for the minor's wages in the same way, and to the same extent, as if the minor were 18 years. 399 Recovery of unpaid wages etc. (1) An application may be made to a magistrate for an order for payment of-- (a) an employee's unpaid wages; or (b) an apprentice's unpaid tool allowance under section 138; or (c) remuneration lost by an apprentice or trainee because the employer has contravened section 391(2); or (d) remuneration unpaid because a person contravened an order mentioned in section 140A(1). (2) The application may be made by-- (a) the employee; or (b) an employee organisation of which the employee is a member, acting for the employee; or (c) a person authorised by the employee to make the application, acting for the employee; or (d) an inspector. (3) The application must be made within 6 years after the amount claimed became payable. (4) However, for an apprentice or trainee, the application can not relate to an amount payable more than 4 years before the commencement of this section. (5) On hearing the application, the magistrate-- (a) must order the employer to pay the employee the amount the magistrate finds to be payable and unpaid to the employee within the 6 years before the date of the application; and (b) may make an order for the payment despite an express or implied provision of an agreement to the contrary; and (c) may order the payment to be made on the terms the magistrate considers appropriate; and (d) may award costs to either party in an amount assessed by the magistrate. (6) A person can not make an application under this section if an application has been made under section 278 or 400F for the same matter. (7) In this section-- employee includes a student to whom an order made under section 140A applies. employer includes an employer to whom an order made under section 140A applies. 400 Enforcement of magistrate's order (1) This section applies to an order of a magistrate for payment by an employer of-- (a) wages found to be payable; or (b) an unpaid tool allowance required to be paid under an order made under section 138(9); or (c) contributions to an approved superannuation fund found to be payable; or (d) remuneration lost by an apprentice or trainee because the employer contravened section 391(2); or (e) remuneration unpaid because a person contravened an order mentioned in section 140A(1); or (f) costs in proceedings relating to unpaid amounts mentioned in paragraphs (a) to (e). (2) The order is enforceable under the Justices Act 1886 as an order for payment of money made by justices under that Act. (3) Also, an amount ordered to be paid, including costs, may be recovered by the person from the employer as a debt. (4) For subsection (3), the order requiring payment may be filed in the registry of a Magistrates Court under the Magistrates Courts Act 1921, and on being filed-- (a) is taken to be an order properly made by a Magistrates Court; and (b) without limiting subsection (2), may be enforced as an order made by the Magistrates Court. (5) In this section-- employer includes-- (a) an employer to whom an order made under section 140A applies; and (b) an apparent employer to whom an order made under section 400F applies. 400A Definitions for div 3A In this division-- apparent employer see section 400B(2). referred claim means a claim referred to a referred employer under section 400C (4). referred employer see section 400C(2). superannuation contributions means contributions to an approved superannuation fund for an outworker who, under a relevant industrial instrument, is an eligible employee for entitlement to occupational superannuation benefits. unpaid wages claim means a claim for wages, or superannuation contributions, made under section 400B. 400B Claims by clothing outworkers for unpaid wages and super (1) This section applies if-- (a) all or any of the wages payable to an outworker in the clothing industry are not paid; or (b) all or any of the superannuation contributions payable for an outworker in the clothing industry are not paid. (2) The outworker may make a claim for the wages, or superannuation contributions, against a person who the outworker believes is his or her employer (the apparent employer). (3) However, the claim can not be made against a person whose only connection with the clothing industry is the sale of clothing by retail. (4) A claim, to the extent it relates to wages, must be made within 6 months after the work was finished. (5) The outworker makes an unpaid wages claim by serving the apparent employer with a written notice that-- (a) claims payment of the wages or superannuation contributions; and (b) states these particulars-- (i) the name of the outworker; and (ii) the address at which the outworker may be contacted; and (iii) a description of the work done; and (iv) the date on which the work was done; and (v) the amount of wages owing; and (vi) the amount of superannuation contributions owing; and (vii) details of the approved superannuation fund to which superannuation contributions should have been paid, that are sufficiently detailed to enable the contributions to be properly paid. (6) The particulars stated in the claim must be verified by statutory declaration. (7) This section applies only to wages for work done or superannuation contributions payable after the commencement of this section. 400C Liability of apparent employer for unpaid wages and super (1) Subject to subsection (5), an apparent employer served with an unpaid wages claim is liable for the amount claimed unless the apparent employer proves in proceedings under section 400F that-- (a) the work was not done; or (b) an amount claimed is not the correct amount; or (c) an amount claimed has already been paid. (2) An apparent employer may, within 14 days after being served with an unpaid wages claim, refer the claim to another person whom the apparent employer reasonably believes is the person for whom the work was done (the referred employer). (3) However, the claim can not be referred to a person whose only connection with the clothing industry is the sale of clothing by retail. (4) An apparent employer refers an unpaid wages claim by-- (a) serving the referred employer with a copy of the unpaid wages claim and a written notice that states-- (i) the name and address of the apparent employer; and (ii) the date on which the outworker served the apparent employer with the unpaid wages claim; and (b) advising the outworker in writing of-- (i) the name and address of the referred employer; and (ii) the date on which the apparent employer served the referred employer with the referred claim. (5) The apparent employer is not liable for any part of the amount claimed in an unpaid wages claim for which the referred employer accepts liability under section 400D. 400D Liability of referred employer for unpaid wages (1) A referred employer may, within 14 days after being served with a referred claim, accept liability for all or part of the amount claimed by paying it to-- (a) for wages--the outworker; or (b) for superannuation contributions--the superannuation fund stated in the unpaid wages claim. (2) A referred employer who accepts liability must serve the apparent employer with a written notice of the acceptance and of the amount paid. (3) If the apparent employer pays all or any part of the amount claimed for which the referred employer does not accept liability, the apparent employer may deduct or set off that amount from any amount that the apparent employer owes to the referred employer, whether or not in relation to the work that is the subject of the referred claim. 400E Reimbursement of apparent or referred employer An application may be made to the commission or to a magistrate for an order that the employer of the outworker reimburse the apparent or referred employer for the amount that the apparent or referred employer paid to-- (a) the outworker; or (b) an approved superannuation fund for the outworker. 400F Recovery of unpaid wages (1) An application may be made for an order that an apparent employer pay an unpaid wages claim. (2) The application may be made to-- (a) if the total amount claimed is $50000 or less--the commission or a magistrate; or (b) otherwise--a magistrate. (3) The application may be made by-- (a) an outworker; or (b) an employee organisation of which the outworker is a member, acting for the outworker; or (c) an inspector. (4) The application must be made within 6 years after the amount claimed in the application became payable. (5) The commission or magistrate must order the apparent employer to pay the wages or superannuation contributions claimed unless the apparent employer proves that-- (a) the work was not done; or (b) an amount claimed is not the correct amount; or (c) an amount claimed has already been paid. (6) If the commission or magistrate is satisfied that an amount claimed is not the correct amount, the commission or magistrate may order payment of the amount that the commission or magistrate is satisfied is payable. (7) For an order about superannuation contributions, the order must require the amount to be paid to-- (a) the approved superannuation fund; or (b) a complying superannuation fund; or (c) a superannuation fund nominated by the outworker; or (d) an eligible rollover fund; or (e) if the amount is less than the amount of total benefits than may revert to an employee under the Superannuation Industry (Supervision) Act 1993 (Cwlth)--the outworker. (8) The superannuation contributions must be paid into the unclaimed moneys fund if the outworker does not nominate a superannuation fund for the purpose of the order, if the order requires a fund to be nominated. (9) In this section-- superannuation contributions includes an amount equal to the return that would have been accrued in relation to the superannuation contributions had they been properly paid to an approved superannuation fund. 400G Offences relating to claims under this division A person must not-- (a) by intimidation or by any other act or omission, intentionally hinder, prevent or discourage someone from making an unpaid wages claim or an application under section 400F; or (b) make any statement that the person knows is false or misleading in a material particular in any notice given for the purposes of section 400C or 400D; or (c) serve a referred claim on someone under section 400C if the person does not reasonably believe that the work under an unpaid wages claim was done for the other person. Maximum penalty--100 penalty units. 400H Effect of ss 400B-400G (1) Sections 400B to 400G do not limit or exclude any other rights of a person to recover wages or superannuation contributions, or any liability of any person in relation to the wages or superannuation contributions, whether or not arising under this Act, another law, or an industrial instrument. (2) Nothing in section 400D(3) limits or excludes any right of recovery arising under any other law in relation to any amount of money owed by the apparent employer to the referred employer. 400I Mandatory code of practice for outworkers (1) The Governor in Council may make a code of practice for the purpose of ensuring that outworkers in the clothing industry receive their lawful entitlements. (2) In particular, the Governor in Council may make a code of practice if it is considered-- (a) that current voluntary self-regulatory mechanisms are inadequate to achieve improvements in the level of compliance with obligations to ensure outworkers receive their lawful entitlements; or (b) that persons engaged in the clothing industry are not in good faith attempting to negotiate improvements or extensions to the current voluntary self-regulatory mechanisms. (3) The code may require employers or other persons engaged in the clothing industry to adopt the standards of conduct and practice relating to outworkers in the clothing industry that are set out in the code. (4) The Governor in Council must give notice of the making of the code of practice. (5) The notice is subordinate legislation. (6) A contravention of the code of practice is an offence. Maximum penalty--100 penalty units. (7) An award prevails over a code of practice to the extent of any inconsistency. 401 Wages recoverable against mortgagee if mortgagor defaults (1) This section applies if an employee-- (a) has performed work-- (i) in cultivating, or otherwise improving, land that is subject to a mortgage; or (ii) in cultivating, or otherwise in connection with, a crop that is subject to a lien; or (iii) relating to animal or vegetable matter prepared or manufactured by machinery that is subject to a bill of sale; or (iv) in tending, feeding, driving, or otherwise in connection with, stock that is subject to a mortgage; and (b) is prevented from, or hindered in, recovering wages for the work from the mortgagor as employer because-- (i) the mortgagee has entered into, or taken possession of the land, crop, machinery or stock, or is taken to have done so; or (ii) the mortgagee has sold the land, crop, machinery or stock, under the mortgagee's security; or (iii) a cheque, draft or order drawn by the mortgagor on the mortgagee is dishonoured by the mortgagee. (2) The mortgagee is taken to be the employee's employer for the performance of the work. (3) The mortgagor is taken, in engaging the employee for the work, to have acted as the mortgagee's authorised agent. (4) Subsections (2) and (3) do not affect appropriate accounting as between the mortgagor and the mortgagee. (5) A mortgagee is not liable for the employee's wages that have become payable more than 6 months before whichever of the following events happens first-- (a) the employee first applies to the mortgagee for payment of the wages; (b) the mortgagee takes possession of, or sells, the land, crop, machinery or stock. (6) The mortgagee's liability under this section-- (a) is additional to the mortgagor's liability for the employee's wages; and (b) does not affect rights, liabilities, functions and powers as between the mortgagor and employee. (7) An employee does not lose a right to bring proceedings against the mortgagee for unpaid wages, and costs of the proceedings, if the employee-- (a) brings proceedings against a mortgagor for wages, whether or not the employee obtains an order for payment against the mortgagor; and (b) because of a reason in subsection (1)(b), fails to obtain payment of the wages, or part of the wages, from the mortgagor. 402 Distress warrant levied on property of mortgagor or mortgagee (1) A warrant of distress issued to enforce an order for payment of an employee's wages for work performed in connection with property mentioned in section 401(1), as far as the land, crop, machinery or stock is concerned-- (a) authorises distress on and sale of the mortgagee's property and the mortgagor's property; and (b) may be executed on the mortgaged land or the encumbered crop, machinery, or stock even though the mortgagee has entered into or taken possession of the land, crop, machinery or stock, or is taken to have done so, under the mortgagee's security. (2) An amount paid by, or recovered from, the mortgagee for the wages-- (a) is taken to be an advance made by the mortgagee to the mortgagor under the mortgagee's security; and (b) may be recovered by the mortgagee under the security. (3) In this section-- land includes the fixtures on the land. 403 Application of ss 401 and 402 to mines (1) Sections 401 and 402 apply, with necessary changes, if an employee-- (a) has performed work in or about-- (i) a mine, including its fixtures, that is subject to a mortgage; or (ii) machinery or apparatus, used in or for a mine, that is subject to a bill of sale; and (b) is prevented from, or hindered in, recovering wages for the work from the mortgagor as employer because-- (i) the mortgagee has entered into, or taken possession of, the mine, machinery or apparatus, or is taken to have done so; or (ii) the mortgagee has sold the mine, machinery or apparatus, under the mortgagee's security; or (iii) a cheque, draft or order drawn by the mortgagor on the mortgagee is dishonoured by the mortgagee. (2) However, a mortgagee is not liable for the employee's wages that have become payable more than 1 month before whichever of the following events happens first-- (a) the employee first applies to the mortgagee for payment of the wages; (b) the mortgagee takes possession of, or sells, the mine, machinery or apparatus. (3) In this section-- wages for work includes earnings for work. 404 Priority in payment of wages earned in mine (1) An amount of wages, of not more than 4 weeks, payable to an employee for employment in or about a mine-- (a) is a first charge on the claim or land in or on which the mine is situated; and (b) in the winding-up of a corporation formed for or engaged in working the mine, must be paid in priority to all other debts, secured or unsecured, of the corporation. (2) Subsection (1)(a) applies even though-- (a) the claim or land is mortgaged or charged to secure payment of other amounts; or (b) there is a lien on the claim or land. (3) Subsection (1)(b) applies only to the extent that a law of the State may validly apply to the distribution of assets in a winding-up. (4) If a first charge exists under subsection (1)(a), the amount charged includes-- (a) all amounts awarded by a court as costs against an employer in proceedings brought by or for an employee to recover the wages mentioned in the subsection; and (b) the amount of costs, charges and expenses reasonably incurred in attempting to enforce an order or orders for payment of the wages. (5) The debts that are a first charge under subsection (1)(a) or are to be paid in priority under subsection (1)(b)-- (a) rank equally among themselves; and (b) if necessary, abate in equal proportions among themselves. (6) In this section-- wages for work includes earnings for work. 406 Contributing occupational superannuation (1) An employer must contribute, for eligible employees, to the approved superannuation fund at the level required by the relevant industrial instrument. Maximum penalty--40 penalty units. (2) The offence is a continuing offence that may be charged in 1 or more complaints for 1 or more periods. (3) An employer who contributed-- (a) to a complying superannuation fund at a level required by a relevant industrial instrument; but (b) to a fund that is not the approved superannuation fund; does not commit an offence unless the employer has knowingly contravened the instrument. (4) If the commission makes an order under section 407(2), 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. (5) The court by which a defendant is found guilty of an offence against subsection (1) may make, in relation to the defendant, an order that a magistrate is authorised by section 408 to make on an application under that section, and that section applies and extends accordingly. (6) An employer may continue to contribute to another superannuation fund in accordance with an agreement under the repealed section 405. (7) In this section-- repealed section 405 means section 405 as in force immediately before the commencement of this subsection. 407 Power to order contribution to particular fund (1) This section applies if-- (a) an industrial matter relates to an allegation that an employer has been, or is, contributing to a complying superannuation fund for employees at a level required by a relevant industrial instrument; but (b) the fund is not the approved superannuation fund. (2) The commission, of its own initiative or on application by an inspector, organisation or employee concerned, may-- (a) decide which complying superannuation fund the employer should have been, or should be, contributing to comply with the relevant industrial instrument; and (b) order the employer to contribute accordingly. (3) If the commission considers it appropriate, the commission may make its order to operate from the date when a particular employee became eligible for payment of contribution to the fund decided by the commission. (4) The commission may recognise all or any of the contribution made by an employer to a complying superannuation fund up to and including the date of the commission's decision as having met the requirements, or a part of them, of a relevant industrial instrument, relating to employers' contribution to the approved superannuation fund. 408 Recovery of unpaid superannuation contribution (1) An application may be made to a magistrate for an order for payment of contributions to the approved superannuation fund payable for an eligible employee that are unpaid. (2) The application may be made by-- (a) an employee who is an eligible employee on whose behalf an employer is required to contribute to an approved superannuation fund; or (b) an employee organisation of which the employee is a member, acting for the employee; or (c) an inspector. (3) The application must be made within 6 years after the amount claimed became payable. (4) On hearing the application, the magistrate must order the employer to pay the employee-- (a) the amount the magistrate finds to be payable and unpaid to the employee within the 6 years before the date of the application; and (b) an amount the magistrate considers appropriate, based on the return that would have accrued in relation to the contribution had it been properly paid to the fund. (5) The magistrate may award costs to either party in an amount assessed by the magistrate. (6) The magistrate may only make an order about the payment of the amount that the commission may make under section 278(9) or (10). (7) A person can not make an application under this section if an application has been made under section 278 for the same matter. 408A Definitions for ch 11A In this chapter-- fee includes charge, expense of any kind and reward. manager see section 408C. model means a person whose work is to-- (a) pose for a painter, photographer, sculptor or other artist; or (b) put on articles of clothing or accessories, including, for example, jewellery, hats and shoes, and display them to customers, the public or for advertising purposes; or (c) display a hairstyle or other personal body ornamentation or decoration. performer means a person whose work is to compete in sport or to act, dance, mime, perform, play, sing or speak in advertising or entertainment. private employment agent see section 408B. publish includes-- (a) publish in writing or in any other form of media; and (b) cause to be published. 408B Meaning of private employment agent (1) A person is a private employment agent if the person, in the course of carrying on business and for gain-- (a) offers to find-- (i) casual, part-time, temporary, permanent or contract work for a person; or (ii) a casual, part-time, temporary, permanent or contract worker for a person; or (b) negotiates the terms of contract work for a model or performer; or (c) administers a contract for a model or performer and arranges payments under it; or (d) provides career advice for a model or performer. (2) However, a person is not a private employment agent only because the person publishes-- (a) for someone else, an advertisement about employment opportunities; or (b) an advertisement offering employment opportunities with the person. (3) Also, a person is not a private employment agent if, for an agreed rate of payment to the person-- (a) the person makes a worker of the person available to perform work, whether under a contract of service or a contract for service, for a client of the person; and (b) the worker works under the client's direction; and (c) the person is responsible for performing the obligations owed by a person to the worker, including paying the worker for the work. 408C Meaning of manager (1) A private employment agent is a manager of a model or performer if the agent, under a written agreement with the model or performer, provides for the model or performer at least 4 of the management services mentioned in paragraphs (a) to (f) of the definition management service in subsection (4). (2) A private employment agent may be a manager of a model or performer whether or not any agreement between them states that the agent is the sole provider of management services for the model or performer. (3) However, a private employment agent is not a manager of a model or performer only because of a written agreement under which the agent helps the model or performer find modelling or performing work. (4) In this section-- management service includes any of the following services-- (a) handling business affairs for the model or performer; (b) providing accounting advice for the model or performer; (c) publicising and promoting the model or performer; (d) providing services ancillary to a performance by the model or performer; (e) providing continuing career or artistic advice for the model or performer; (f) representing the model or performer in negotiations with media, entertainment industry workers or the public; but does not include a service mentioned in section 408B(1)(a) to (c). 408D When fees are or are not payable to private employment agent (1) A private employment agent must not directly or indirectly demand or receive from a person, other than a model or performer, looking for work (a work seeker) a fee for finding, or attempting to find, the person work. Maximum penalty--16 penalty units. (2) A private employment agent must not directly or indirectly demand or receive from a model or performer looking for work (also a work seeker) a fee for finding, or attempting to find, the model or performer work unless-- (a) the agent gives the model or performer a written notice stating the particulars prescribed under a regulation; and (b) the fee payable is not more than the percentage prescribed under a regulation of the gross amount payable to the model or performer, excluding any allowances or payments prescribed under a regulation, for the work; and (c) the amount payable to the model or performer is at least the amount payable under an applicable industrial instrument. Maximum penalty--16 penalty units. (3) Subsection (2) does not apply if the private employment agent is also the manager of the model or performer and the fee is payable under a written agreement between the manager and the model or performer. (4) In this section-- industrial instrument includes an award or agreement made under the Commonwealth Act. 408E Magistrate may order repayment of fees received by private employment agent in criminal proceedings (1) A magistrate who hears and decides a complaint for an offence against section 408D(1) or (2)-- (a) must, if the magistrate finds the defendant guilty, order the defendant to repay to the work seeker the fee, if any, the magistrate finds, on the balance of probabilities, to have been received in contravention of section 408D(1) or (2), if-- (i) the fee has not been repaid to the work seeker; and (ii) the defendant is not liable to repay the fee to the work seeker under an existing order under section 408F or 408G; or (b) may, if the magistrate does not find the defendant guilty, order the defendant to repay to the work seeker the amount the magistrate finds, on the balance of probabilities, the defendant has received from the work seeker. (2) The magistrate may make the order-- (a) despite an express or implied provision of an agreement to the contrary; and (b) on the terms the magistrate considers appropriate. 408F Commission may order repayment of fees received by private employment agent (1) An application may be made to the commission for an order for the repayment of a fee received by a private employment agent in contravention of section 408D(1) or (2) from a person (claimant) for finding or attempting to find the claimant work. (2) An application can not be made to the commission if the total fee claimed under subsection (1) is more than $20000. (3) The application may be made by-- (a) the claimant; or (b) an employee organisation of which the claimant is a member, acting for the claimant; or (c) a person authorised by the claimant to make the application, acting for the claimant; or (d) an inspector. (4) The application must be made within 6 years after the claimant gave the agent the fee. (5) The vice president may, either before or after the start of a hearing, remit the application to a magistrate if the vice president considers the application could be more conveniently heard by a magistrate, having regard to- - (a) the difficulty or expense of producing witnesses; or (b) another good and sufficient reason, for example, cost. (6) A magistrate may hear and decide the application as if it had been brought before the commission and the magistrate's decision and order is taken to be a decision and order of the commission. (7) On hearing the application, the commission or magistrate-- (a) must order the agent to repay to the claimant the amount the commission or magistrate finds to be the fee the agent has received from the claimant in contravention of section 408D(1) or (2) if-- (i) the fee has not been repaid to the claimant; and (ii) the agent is not liable to repay the fee to the claimant under an existing order under section 408E or 408G; and (b) may make an order for the repayment despite an express or implied provision of an agreement to the contrary; and (c) may order the repayment to be made on the terms the commission or magistrate considers appropriate; and (d) may order 1 party to pay costs to another party in an amount assessed by the commission or magistrate. (8) A person can not make an application under this section if an application has been made under section 408G about the same matter. 408G Magistrate may order repayment of fees received by private employment agent in civil proceedings (1) An application may be made to a magistrate for an order for the repayment of a fee received by a private employment agent in contravention of section 408D(1) or (2) from a person (claimant) for finding or attempting to find the claimant work. (2) The application may be made by-- (a) the claimant; or (b) an employee organisation of which the claimant is a member, acting for the claimant; or (c) a person authorised by the claimant to make the application, acting for the claimant; or (d) an inspector. (3) The application must be made within 6 years after the claimant gave the agent the fee. (4) On hearing the application, the magistrate-- (a) must order the agent to repay to the claimant the amount the magistrate finds to be the fee the agent has received from the claimant in contravention of section 408D(1) or (2) if-- (i) the fee has not been repaid to the claimant; and (ii) the agent is not liable to repay the fee to the claimant under an existing order under section 408E or 408F; and (b) may make an order for the repayment despite an express or implied provision of an agreement to the contrary; and (c) may order the repayment to be made on the terms the magistrate considers appropriate; and (d) may order 1 party to pay costs to another party in an amount assessed by the magistrate. (5) A person can not make an application under this section if an application has been made under section 408F about the same matter. 408H Enforcement of magistrate's orders (1) This section applies if, under section 408E or 408G, a magistrate orders-- (a) a private employment agent to repay a fee received by the agent in contravention of section 408D(1) or (2) to a work seeker mentioned in section 408E or to a claimant mentioned in section 408G; or (b) costs in the application under section 408G of a party. (2) The order is enforceable under the Justices Act 1886 as an order for payment of money made by a magistrate under that Act. (3) Also, an amount ordered to be paid to the work seeker or claimant by the agent may be recovered by the work seeker or claimant from the agent as a debt. (4) For subsection (3), the order requiring payment may be filed in the registry of a Magistrates Court under the Magistrates Courts Act 1921, and on being filed-- (a) is taken to be an order properly made by a Magistrates Court; and (b) may be enforced as a money order made by the Magistrates Court. 409 Definitions for ch 12 In this chapter-- accounts see section 555. amalgamation means the carrying out, under part 15, of arrangements for 2 or more organisations, associations or corporations, under which-- (a) an organisation is, or 2 or more organisations are, to be deregistered; and (b) members of the organisation or organisations to be deregistered are to become members of another organisation, whether existing or proposed. association means an unincorporated body or entity formed or carried on to protect and promote its members' interests. audit report see section 558(1)(b). ballot records, for an election or ballot, means any ballot envelopes, papers or other records that have been prepared or used for the election or ballot. branch of an organisation means a constituent part of the organisation, however called, that has a management committee or officers. casual vacancy means a vacancy in an office because of the death, removal or resignation from office of the office holder. committee meeting, for an organisation, means a meeting of its management committee. corporation see section 410. counterpart federal body see section 411. defect includes an error, irregularity, nullity and an omission. demarcation dispute undertaking from an organisation or applicant for registration means an undertaking from it to avoid demarcation disputes that might otherwise arise from an overlap between its eligibility rules and another organisation's eligibility rules. deregistered organisation means a former organisation whose registration has been cancelled. deregistration, for an organisation, means the cancellation of its registration. election means an election for an office in an organisation or branch. electoral commission means the Electoral Commission of Queensland. electoral officer means the electoral commissioner, the deputy electoral commissioner or a member of the staff of the electoral commission. eligibility rules of an organisation or applicant for registration means its rules about eligibility for its membership. file a document means file it with the registrar. financial hardship payment, for an organisation, means a payment by the organisation to relieve a member or the member's dependant from severe financial hardship. general meeting of an organisation or applicant for registration means a general meeting of its members. irregularity includes-- (a) a contravention of an organisation's rules; and (b) for an election or ballot, an act or omission by which the following is, or is attempted to be, prevented-- (i) the full and free recording of votes by all persons who may record a vote and by no other persons; (ii) a correct working out or declaration of the results of the voting. management committee, for an organisation, branch or applicant for registration, means the body of persons, however called, that manages its affairs. membership subscription, for an organisation, means a subscription, due or other amount payable under its rules for membership or membership renewal. members register, for an organisation, means the current register of its members required to be kept under section 544. model election rules means the model election rules under section 454. office, for an organisation, branch or applicant for registration, see section 412. officer of an organisation, branch or applicant for registration means a person who holds an office in the organisation or branch or in the applicant association or corporation. officers register, for an organisation, means the current register of its officers required to be kept under section 544. ordinary election means an election held under rules under part 4. organisation means-- (a) a body registered under this chapter as an organisation; or (b) an association of employers or employees, the continuity of whose registration as an industrial organisation or union under an Act is continued or preserved by this Act. postal ballot means a ballot by which-- (a) a ballot paper is sent by prepaid post to each person who may vote in the ballot; and (b) facilities are provided for returning the completed ballot paper by post by each voter without cost to the voter. president of an organisation, branch or applicant for registration means-- (a) its president; or (b) its chief executive; or (c) another officer, however called, who has the functions of its president or chief executive. register, when used as a noun, means the register of industrial organisations the registrar keeps under section 426(1). registration means registration under this chapter as an organisation. required number of members of an organisation means the number of its members that is the lesser of 5% of the membership or 250. secretary, of an organisation, for the signing of a document to be filed means- - (a) the person who holds the office of secretary in the organisation; or (b) if no-one holds the office of secretary of the organisation, the person authorised by the organisation under its rules to sign documents for the organisation. withdrawal means the withdrawal, under part 15, of a constituent part from an amalgamated organisation. 410 Meaning of corporation for ch 12 (1) In this chapter, corporation means-- (a) a corporation under the Corporations Act, section 57A; or (b) an incorporated association under the Associations Incorporation Act 1981; or (c) a body incorporated under a law of the State, another State or the Commonwealth, other than-- (i) a federal organisation; or (ii) an organisation registered under a law of another State about the registration of industrial organisations or unions. (2) However, an organisation incorporated under section 423 is not a corporation. 411 Meaning of counterpart federal body for ch 12 (1) In this chapter, a federal organisation or a branch or part of a federal organisation (federal body) is a counterpart federal body of an organisation (State body) if-- (a) a substantial number of members of the State body are-- (i) members or eligible to be members of the federal body; or (ii) engaged in the same work, in aspects of the same work or in similar work as members of the federal body; or (iii) employed in the same or similar work by employers engaged in the same industry as members of the federal body; or (iv) engaged in work or in industries for which there is a community of interest between the federal body and the State body; or (b) there is an agreement in force under the Commonwealth Act, schedule 1, section 151, between the federal body and the State body. (2) If subsection (1)(a) or (b) applies to more than 1 State body for the same federal body, the federal body is a counterpart federal body of each of the State bodies. 412 Meaning of office for ch 12 In this chapter, office, for an organisation, branch or applicant for registration (industrial association), means the following-- (a) the office of president, vice-president, secretary or assistant secretary of the industrial association; (b) the office of a member of the management committee of the industrial association; (c) the office of a voting member of any other collective body that has power to do any of the following-- (i) manage the affairs of the industrial association; (ii) decide the policy of the industrial association; (iii) make, amend or repeal the rules of the industrial association; (iv) enforce the rules of the industrial association; (d) an office for which the holder may under the rules of the industrial association manage the association's affairs and enforce its rules, other than a holder only participating under directions of a collective body or other person to implement-- (i) the association's existing policy; or (ii) decisions concerning the association; (e) an office for which the holder may under the industrial association's rules decide the association's policy and make, amend or repeal its rules; (f) the office of a person holding, whether as trustee or otherwise, the property of the industrial association or property the association has a beneficial interest in. 413 Application is to commission A registration application may only be made to the commission. 414 Who may apply (1) An association may apply for registration as an employee or employer organisation. (2) A corporation may only apply for registration as an employer organisation. 415 General requirements for applications (1