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PARLIAMENT OF VICTORIA
Federal Awards (Uniform System) Act 2002
Act No.
TABLE OF PROVISIONS
Clause Page
PART 1--PRELIMINARY 1
1. Purposes 1
2. Commencement 2
3. Definitions 2
4. What is an industry? 4
5. Act binds the Crown 5
PART 2--COMMON RULE ORDERS 6
6. What is a common rule order? 6
7. Effect of common rule order 6
8. Application for common rule order 7
9. Procedure on application for common rule order 8
10. Restrictions on discretion of Tribunal 8
11. Requirement on Tribunal to specify scope of order 10
12. Variation of common rule orders 10
13. Revocation of common rule orders 12
PART 3--COMPLIANCE 13
Division 1--Information Services Officers 13
14. What are the functions of information services officers? 13
15. Appointment of information services officers 13
16. Identity cards 14
17. Police to assist information services officers 14
18. When may powers be exercised? 14
19. Power of entry 15
20. Powers on entry 17
21. Power to require production of documents 17
22. Retention of documents 17
23. Search warrant 18
24. Announcement before entry 19
25. Copy of warrant to be given to occupier 20
26. Confidentiality 20
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Clause Page
Division 2--Victimisation 21
27. Prohibition of victimisation 21
Division 3--Other Offences 21
28. Failing to produce documents, hindering information services
officers and giving them false information 21
29. Protection against self-incrimination 22
30. Impersonation of information services officer 22
Division 4--Prosecutions, Evidence and Recovery of Money 23
31. Proceedings for offences to be brought in Industrial Division of
the Magistrates' Court 23
32. Who can prosecute under this Act? 23
33. Judicial notice of signatures 24
34. Conduct of agents imputed to corporations 24
35. Reverse onus of proof in certain cases 25
36. Recovery of money owed 25
37. Court may order payment of arrears on finding of guilt 26
38. Representation in Magistrates' Court proceedings 27
39. Proceedings by and against unincorporated clubs 27
PART 4--GENERAL 29
40. Regulations 29
PART 5--AMENDMENT OF COMMONWEALTH POWERS
(INDUSTRIAL RELATIONS) ACT 1996 30
41. Definition 30
42. Common rules 30
43. New section 4A inserted 30
4A. Further reference--common rules 30
44. Matters excluded from a reference 31
PART 6--AMENDMENT OF VICTORIAN CIVIL AND
ADMINISTRATIVE TRIBUNAL ACT 1998 32
45. Amendment of Schedule 1 32
ENDNOTES 34
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PARLIAMENT OF VICTORIA
Initiated in Assembly 12 September 2002
A BILL
to amend the Commonwealth Powers (Industrial Relations) Act
1996 to refer to the Parliament of the Commonwealth a further matter
relating to industrial relations, to empower the Victorian Civil and
Administrative Tribunal to make orders applying federal award
conditions as common rules in Victoria and for this purpose to amend
the Victorian Civil and Administrative Tribunal Act 1998 and for
other purposes.
Federal Awards (Uniform System) Act
2002
The Parliament of Victoria enacts as follows:
PART 1--PRELIMINARY
1. Purposes
The purposes of this Act are--
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PART 1--PRELIMINARY
s. 2
(a) to refer to the Parliament of the
Commonwealth a further matter relating to
industrial relations; and
(b) to empower the Victorian Civil and
5 Administrative Tribunal to make orders
applying federal award conditions as
common rules in Victoria.
2. Commencement
(1) This Act comes into operation on a day or days to
10 be proclaimed.
(2) A proclamation must not be made under sub-
section (1) bringing section 43 into operation
unless the proclamation includes a statement that
the Governor in Council is satisfied that a Bill has
15 been introduced into the Senate or the House of
Representatives of the Parliament of the
Commonwealth containing provisions about the
matter to be referred to that Parliament by
proposed section 4A(1) of the Commonwealth
20 Powers (Industrial Relations) Act 1996.
(3) A proclamation must not be made under sub-
section (1) bringing Part 2, 3, 4 or 6 into operation
if section 43 has been proclaimed to come into
operation.
25 3. Definitions
In this Act--
"allowable award matters" has the same
meaning as in the Commonwealth Act, as
affected by item 50 of Schedule 5 to the
30 Workplace Relations and Other Legislation
Amendment Act 1996;
"award" means award made under the
Commonwealth Act;
"common rule order" means an order made
35 under Part 2;
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"Commonwealth Act" means the Workplace
Relations Act 1996 of the Commonwealth;
"contract" includes--
(a) an arrangement or understanding; and
5 (b) a collateral contract relating to a
contract;
"Department" means Department of Innovation,
Industry and Regional Development;
"employee" includes any person whose usual
10 occupation is that of employee, but does not
include a person who is undertaking a
vocational placement;
"employer" includes--
(a) a person who is usually an employer;
15 and
(b) an unincorporated club;
"Federal Commission" means the Australian
Industrial Relations Commission;
"firm" has the same meaning as in the
20 Partnership Act 1958;
"industry" has the meaning given by section 4;
"industrial instrument" includes an award or
agreement made under the Commonwealth
Act;
25 "information services officer" means a person
appointed under section 15;
"interested organisation" means an organisation
that is not a registered organisation but that
is representative of a significant number of
30 employers in an industry or a range of
industries;
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PART 1--PRELIMINARY
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"peak body" means a body that is representative
of a significant number of organisations
representing employers or employees in an
industry or a range of industries;
5 "registered organisation" means an organisation
registered under the Commonwealth Act;
"rules" means rules made by the Rules
Committee under section 157 of the
Victorian Civil and Administrative
10 Tribunal Act 1998;
"Secretary" means Secretary to the Department;
"Tribunal" means Victorian Civil and
Administrative Tribunal established by the
Victorian Civil and Administrative
15 Tribunal Act 1998;
"vocational placement" means a placement that
is--
(a) undertaken with an employer for which
a person is not entitled to be paid any
20 remuneration; and
(b) undertaken as a requirement of an
education or training course; and
(c) authorised under a law or an
administrative arrangement of Victoria,
25 the Commonwealth, another State or a
Territory.
4. What is an industry?
In this Act, "industry" includes--
(a) any trade, manufacture, business, project or
30 occupation in which persons work; and
(b) a part of an industry or a number of
industries; and
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PART 1--PRELIMINARY
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(c) a class of employment within an industry or
a number of industries.
5. Act binds the Crown
(1) This Act binds the Crown, not only in right of
5 Victoria, but also, so far as the legislative power
of Parliament permits, the Crown in all its other
capacities.
(2) Nothing in this Act makes the Crown in any of its
capacities liable to be prosecuted for an offence.
__________________
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PART 2--COMMON RULE ORDERS
s. 6
PART 2--COMMON RULE ORDERS
6. What is a common rule order?
(1) A common rule order is an order made by the
Tribunal declaring that a specified term or part of
a term of a specified award is, subject to any
5 conditions, exceptions and limitations that are
specified in the order, a common rule for a
specified industry.
(2) A common rule has the effect of binding all
employers and employees in the industry
10 concerned so that their employment relationship is
governed by the provisions of the common rule.
(3) A common rule order is of no effect to the extent
that it relates to a term or part of a term of an
award that provides for matters other than
15 allowable award matters.
Note: As a result of section 109 of the Commonwealth
Constitution, a common rule order is also of no effect
to the extent that it is inconsistent with the Workplace
Relations Act 1996 of the Commonwealth or with any
20 award or agreement made under that Act.
(4) A condition, exception or limitation specified in a
common rule order may apply to all employers
bound by the order or to a specified employer or
class of employer.
25 7. Effect of common rule order
(1) A provision of a contract of employment is of no
effect to the extent that it provides a condition of
employment that is less favourable to an employee
than that applicable under a relevant common rule
30 order.
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(2) An employer must not--
(a) enter into, or purport to enter into, a contract
of employment that provides a condition of
employment that is less favourable to the
5 employee than that applicable under a
relevant common rule order; or
(b) provide a condition of employment to an
employee that is less favourable to the
employee than that applicable under a
10 relevant common rule order.
Penalty: 120 penalty units.
(3) An employer who becomes bound by a common
rule order is entitled to set off an amount that is
payable to an employee under the order against
15 any amount payable to the employee under his or
her contract of employment (as that contract
existed before the coming into force of the order)
that is at least equivalent to the amount that is
required to be paid to the employee under the
20 order.
(4) Sub-sections (1) and (2) have effect subject to
sub-section (3).
8. Application for common rule order
The Tribunal may make a common rule order on
25 an application made by--
(a) the Minister; or
(b) a registered organisation that is
representative of employees or employers in
the relevant industry; or
30 (c) a peak body that is representative of
employers or employees in the relevant
industry.
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9. Procedure on application for common rule order
(1) An applicant for a common rule order must
publish, as required by the rules, a notice--
(a) specifying the industry in relation to which
5 the common rule order is sought; and
(b) specifying the relevant term or part of the
term of the award; and
(c) inviting any registered organisation,
interested organisation or person interested
10 and wanting to be heard or make a written
submission to appear before the Tribunal or
make a written submission to the Tribunal as
specified in the notice.
(2) Before making a common rule order, the Tribunal
15 must hear all organisations and persons appearing.
10. Restrictions on discretion of Tribunal
(1) The Tribunal must make a common rule order in
relation to an industry on an application under
section 8 if satisfied that--
20 (a) work is being performed in Victoria in that
industry; and
(b) there is an award in force that is binding on
employers in that industry who are parties to
the award; and
25 (c) the award would be binding on an employee
performing work referred to in paragraph (a)
if he or she were employed to perform that
work by an employer who is a party to the
award.
30 (2) If more than one award covers a particular kind of
work, the Tribunal, on making a common rule
order applying to that work, must ensure that the
award a term, or part of a term, of which is to be
declared a common rule--
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(a) is the most relevant to the work; and
(b) most comprehensively and appropriately
deals with employment conditions; and
(c) is otherwise the most appropriate award for
5 the purpose.
(3) The Tribunal must not make a common rule order
applying to a particular kind of work if a common
rule order already applies to that work and deals
with the term, or the part of the term, which it is
10 sought to have declared a common rule.
(4) The Tribunal may only impose a condition,
exception or limitation on a term, or a part of a
term, of an award specified in a common rule
order if satisfied that it is necessary to do so on
15 one or more of the following grounds--
(a) the term, or part, is not relevant to the
relationship between employers and
employees who are to be bound by the order;
(b) the term, or part, confers a power or imposes
20 a duty on the Federal Commission;
(c) the term, or part, imposes a financial
obligation on an employer who is to be
bound by the order and the employer does
not have the capacity to meet that obligation;
25 (d) the condition, exception or limitation is
necessary to enable the practical operation of
the order.
(5) In determining whether the ground referred to in
sub-section (4)(c) is made out, the Tribunal must
30 have regard to any statement of principles by, and
any relevant decision of, the Federal Commission
with respect to economic incapacity.
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11. Requirement on Tribunal to specify scope of order
(1) The Tribunal must ensure that the scope and
application of a common rule order is specified in
the order, for example, the class of employee to
5 which it applies. Employees may be classified,
for this purpose, according to their category of
employment or the nature of the work performed
by them.
(2) Despite anything to the contrary in section 118(1)
10 of the Victorian Civil and Administrative
Tribunal Act 1998, if the Tribunal is satisfied
that there are exceptional circumstances, it may
provide that a common rule order comes into
effect on a day earlier than the day on which the
15 order is made.
(3) Despite a common rule order coming into effect
on a day earlier than it is made, a person cannot be
convicted of an offence against section 7(2), or
any other offence in relation to contravention of
20 the common rule order, in respect of conduct
occurring before the day on which the order is
made.
12. Variation of common rule orders
(1) Subject to this section, if--
25 (a) a term, or part of a term, of an award is
declared to be a common rule by a common
rule order; and
(b) subsequent to the making of the common
rule order, that term, or that part of the term,
30 is varied by the Federal Commission--
the variation has effect, by force of this sub-
section, as a common rule and the common rule
order is varied accordingly with effect from the
end of 28 days after the date of effect of the
35 variation of the award.
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(2) The Secretary must cause a notice to be published
in the Government Gazette and a newspaper
generally circulating in Victoria--
(a) giving details of the variation or proposed
5 variation by the Federal Commission of a
term, or part of a term, referred to in sub-
section (1); and
(b) informing employers bound by the common
rule order concerned of their right to apply to
10 the Tribunal under sub-section (3).
(3) An employer bound by the common rule order
may apply to the Tribunal, within the period
specified in the rules, for an order under sub-
section (4) on the ground that--
15 (a) the variation imposes a financial obligation
on the employer and the employer does not
have the capacity to meet that obligation; or
(b) the variation alters the effect of a condition,
exception or limitation specified in the
20 common rule order that is applicable to the
employer.
(4) If an application is made in accordance with sub-
section (3)--
(a) the Tribunal may order that--
25 (i) the variation is not binding on the
applicant; or
(ii) the condition, exception or limitation is
amended as set out in the order as it has
effect in relation to the applicant; and
30 (b) the variation is not enforceable against the
applicant before the application is finally
determined by the Tribunal.
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(5) In determining whether the ground referred to in
sub-section (3)(a) is made out, the Tribunal must
have regard to any statement of principles by, and
any relevant decision of, the Federal Commission
5 with respect to economic incapacity.
13. Revocation of common rule orders
(1) If--
(a) the terms of an award are declared to be a
common rule by a common rule order; and
10 (b) subsequent to the making of the common
rule order the Federal Commission sets aside
the award--
the Tribunal, on application by a person or body
referred to in section 8, may, by order, revoke the
15 common rule order.
(2) If--
(a) one or more terms of an award are declared
to be a common rule by a common rule
order; and
20 (b) subsequent to the making of the common
rule order the Federal Commission sets aside
those terms--
the Tribunal, on application by a person or body
referred to in section 8, may, by order, omit those
25 terms from the common rule order.
__________________
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part 3--COMPLIANCE
s. 14
PART 3--COMPLIANCE
Division 1--Information Services Officers
14. What are the functions of information services
officers?
5 (1) The primary function of information services
officers is to provide information about the
operation of this Act to employers, employees,
registered organisations, interested organisations,
peak bodies and other interested members of the
10 community.
(2) Information services officers also have the
function of ensuring compliance with this Act and
any other functions conferred by or under this or
any other Act.
15 15. Appointment of information services officers
The Minister may, by instrument, appoint as an
information services officer for the purposes of
this Act a person employed under Part 3 of the
Public Sector Management and Employment
20 Act 1998 who, in the Minister's opinion--
(a) is competent to perform the functions and
exercise the powers of an information
services officer; and
(b) is of good repute, having regard to character,
25 honesty and integrity; and
(c) agrees in writing to perform the functions of
an information services officer in accordance
with the criteria established from time to
time by the Minister.
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16. Identity cards
(1) Each information services officer must be issued
with an identity card in the form approved by the
Minister.
5 (2) The identity card must bear a photograph and the
signature of the information services officer.
(3) An information services officer must produce his
or her identity card for inspection--
(a) before exercising a power under this Part
10 other than a requirement made by post, fax,
e-mail or other electronic communication;
and
(b) at any time during the exercise of a power
under this Part, if asked to do so.
15 Penalty: 10 penalty units.
17. Police to assist information services officers
(1) An information services officer may request the
assistance of a member of the police force.
(2) A member of the police force may assist an
20 information services officer to take any action
authorised by this Part.
18. When may powers be exercised?
(1) An information services officer may exercise
powers under this Part only to the extent that it is
25 reasonably necessary to do so for the purpose of
determining compliance with a common rule
order.
(2) In exercising powers under this Part, an
information services officer must--
30 (a) cause as little harm and inconvenience or
damage as possible; and
(b) not remain on premises any longer than is
reasonably necessary; and
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part 3--COMPLIANCE
s. 19
(c) leave premises as nearly as possible in the
same condition as they were found prior to
the officer's entry.
19. Power of entry
5 (1) An information services officer may, with the
consent of the occupier, enter--
(a) any premises at which the officer has
reasonable grounds for believing that work
to which a common rule order applies is
10 being or has been performed; or
(b) any premises, being a place of business at
which the officer has reasonable grounds for
believing that there are documents relevant
to the purpose of determining compliance
15 with a common rule order.
(2) An information services officer must not enter any
premises with the consent of the occupier unless,
before the occupier consents to that entry, the
inspector has--
20 (a) produced his or her identity card for
inspection; and
(b) informed the occupier--
(i) of the purpose of the entry; and
(ii) that the occupier may refuse to give
25 consent to the entry; and
(iii) that the occupier may refuse to consent
to the taking of any sample of goods or
substances or any copy or extract from
a document found on the premises; and
30 (iv) that anything taken with the consent of
the occupier may be used in evidence in
proceedings.
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(3) If an occupier consents to an entry, the
information services officer who requested
consent must before entering the premises ask the
occupier to sign an acknowledgment in the
5 prescribed form stating--
(a) that the occupier has been informed of the
purpose of the entry and that anything taken
with the consent of the occupier may be used
in evidence in proceedings; and
10 (b) that the occupier has been informed that he
or she may refuse to give consent to the
entry; and
(c) that the occupier has consented to the entry;
and
15 (d) the date and time that the occupier
consented.
(4) If an occupier consents to the taking of anything,
the information services officer must before
taking the thing ask the occupier to sign an
20 acknowledgment stating--
(a) that the occupier has consented to the taking
of the thing; and
(b) the date and time that the occupier
consented.
25 (5) An occupier who signs an acknowledgment must
be given a copy of the signed acknowledgment
before the inspector leaves the premises.
(6) If, in any proceeding, an acknowledgment is not
produced to the court or a tribunal, it must be
30 presumed, until the contrary is proved, that the
occupier did not consent to the entry or to the
taking of the thing.
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20. Powers on entry
On exercising a power of entry under section 19,
an information services officer may--
(a) inspect any work, material, machinery,
5 appliance, article, facility or other thing;
(b) take samples of any goods or substances in
accordance with the regulations;
(c) interview any employee;
(d) require a person having the custody of, or
10 access to, a document relevant to the purpose
of determining compliance with a common
rule order to produce the document to the
information services officer within a
reasonable period specified by the
15 information services officer;
(e) inspect, and make copies of or take extracts
from, a document produced to him or her.
21. Power to require production of documents
(1) An information services officer, by written notice,
20 may require a person to produce to him or her,
within a reasonable period specified in the notice,
a document relevant to the purpose of determining
compliance with a common rule order.
(2) An information services officer may inspect, and
25 make copies of or take extracts from, a document
produced to him or her under sub-section (1).
22. Retention of documents
(1) An information services officer may retain a
document produced to him or her for the period
30 necessary for the purpose of performing functions
and exercising powers as an information services
officer.
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(2) During the period that the information services
officer retains a document, he or she must permit
the person otherwise entitled to its possession to
inspect it and make copies of or take extracts from
5 it.
23. Search warrant
(1) An information services officer may apply to a
magistrate for the issue of a search warrant in
relation to particular premises if the information
10 services officer believes on reasonable grounds
that there is, or may be within the next 72 hours,
on the premises a particular thing that may be
evidence of the commission of an offence against
this Act.
15 (2) A magistrate may issue a search warrant under
this section if the magistrate is satisfied by
evidence on oath, whether oral or by affidavit, that
there are reasonable grounds for suspecting that
there is, or may be within 72 hours, on premises a
20 particular thing that may be evidence of the
commission of an offence against this Act.
(3) The search warrant may authorise an information
services officer named in the warrant and any
assistants the information services officer
25 considers necessary--
(a) to enter the premises, or part of the premises,
named or described in the warrant; and
(b) to search for the thing named or described in
the warrant.
30 (4) In addition to any other requirement, a search
warrant issued under this section must state--
(a) the offence suspected; and
(b) the premises to be searched; and
(c) a description of the thing for which the
35 search is to be made; and
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(d) any conditions to which the warrant is
subject; and
(e) whether entry is authorised to be made at any
time or during stated hours; and
5 (f) a day, not later than 7 days after the issue of
the warrant, on which the warrant ceases to
have effect.
(5) A search warrant must be issued in accordance
with the Magistrates' Court Act 1989 and in the
10 form prescribed under that Act.
(6) The rules to be observed with respect to search
warrants mentioned in the Magistrates' Court
Act 1989 extend and apply to warrants under this
section.
15 24. Announcement before entry
(1) Before executing a search warrant, the
information services officer named in the warrant
or a person assisting him or her must--
(a) announce that he or she is authorised by the
20 warrant to enter the premises; and
(b) give any person at the premises an
opportunity to allow entry to the premises.
(2) The information services officer or a person
assisting him or her need not comply with sub-
25 section (1) if the officer or person believes on
reasonable grounds that immediate entry to the
premises is required to ensure--
(a) the safety of any person; or
(b) that the effective execution of the warrant is
30 not frustrated.
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25. Copy of warrant to be given to occupier
If the occupier or another person who apparently
represents the occupier is present at the premises
when a search warrant is being executed, the
5 information services officer must--
(a) identify himself or herself to that person by
producing his or her identity card for
inspection by that person; and
(b) give to that person a copy of the execution
10 copy of the warrant.
26. Confidentiality
(1) An information services officer must not, except
to the extent necessary to carry out the officer's
functions, give to any other person, whether
15 directly or indirectly, any information acquired by
the inspector in carrying out those functions.
Penalty: 60 penalty units.
(2) Sub-section (1) does not apply to the giving of
information--
20 (a) to a court or tribunal in the course of legal
proceedings; or
(b) pursuant to an order of a court or tribunal; or
(c) to the extent reasonably required to enable
the investigation or the enforcement of a law
25 of Victoria or of any other State or Territory
or of the Commonwealth; or
(d) with the written authority of the Minister; or
(e) with the written authority of the person to
whom the information relates.
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s. 27
Division 2--Victimisation
27. Prohibition of victimisation
(1) An employer, a registered organisation or an
interested organisation must not victimise an
5 employee.
Penalty: 120 penalty units.
(2) An employer or an organisation victimises an
employee if the employer or organisation subjects
or threatens to subject the employee to any
10 detriment because the employee, or a person
associated with the employee, has--
(a) claimed a benefit or exercised a power or
right that he or she is entitled to claim or
exercise under this Act or a common rule
15 order; or
(b) brought, or otherwise participated in, a
proceeding under this Act; or
(c) informed any person of an alleged
contravention of this Act or of a common
20 rule order by any person.
(3) In this section--
"employee" includes a prospective employee;
"employer" includes a prospective employer.
Division 3--Other Offences
25 28. Failing to produce documents, hindering information
services officers and giving them false information
(1) A person must not, without reasonable excuse--
(a) fail to comply with a notice to produce a
document given under section 20 or 21; or
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part 3--COMPLIANCE
s. 29
(b) otherwise obstruct or hinder an information
services officer performing functions or
exercising powers under this Part.
Penalty: 60 penalty units.
5 (2) A person must not--
(a) give information to an information services
officer that the person knows to be false or
misleading in a material particular; or
(b) produce a document to an information
10 services officer that the person knows to be
false or misleading in a material particular
without indicating the respect in which it is
false or misleading and, if practicable,
providing correct information.
15 Penalty: 60 penalty units.
29. Protection against self-incrimination
(1) It is a reasonable excuse for a person to refuse or
fail to produce a document or do any other thing
that the person is required to do by or under this
20 Act if the producing of the document or the doing
of the other thing would tend to incriminate the
person.
(2) Nothing in sub-section (1) affects the application
of section 105 of the Victorian Civil and
25 Administrative Tribunal Act 1998.
30. Impersonation of information services officer
A person must not impersonate an information
services officer.
Penalty: 60 penalty units.
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s. 31
Division 4--Prosecutions, Evidence and Recovery of Money
31. Proceedings for offences to be brought in Industrial
Division of the Magistrates' Court
If a person is charged with an offence against this
5 Act, the charge must be heard, and all penalties
recovered, before the Magistrates' Court sitting as
the Industrial Division.
32. Who can prosecute under this Act?
(1) A prosecution for an offence against this Act may
10 only be brought by a person authorised by--
(a) the Minister; or
(b) the Secretary, if the Minister has authorised
the Secretary to give such an authorisation;
or
15 (c) a person employed in the Department under
Part 3 of the Public Sector Management
and Employment Act 1998 who the
Minister has authorised to give such an
authorisation.
20 (2) Any authorisation--
(a) must be in writing; and
(b) may be given generally, or only in relation to
a particular case or cases, or a particular
class of case or cases; and
25 (c) may be revoked by the person who gave it at
any time by notice in writing.
(3) The revocation of an authorisation does not affect
any proceedings started by a person before that
person's authorisation was revoked unless the
30 notice of revocation states otherwise.
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s. 33
(4) In a prosecution for an offence under this Act, the
Industrial Division of the Magistrates' Court must
presume, in the absence of evidence to the
contrary, that the prosecutor is authorised to bring
5 the prosecution.
(5) A prosecution may only be conducted by--
(a) the person authorised to bring the
prosecution; or
(b) a legal practitioner (within the meaning of
10 the Legal Practice Act 1996) briefed by the
person authorised to bring the prosecution.
33. Judicial notice of signatures
All courts must take judicial notice of--
(a) the signature of a person who is, or was at
15 the time the signature purports to have been
made, the Minister, the Secretary or an
employee to whom section 32(1)(c) applies;
and
(b) the fact that a person listed in paragraph (a)
20 held the position he or she purported to hold
at the time the signature purports to have
been made.
34. Conduct of agents imputed to corporations
For the purposes of this Act, any conduct engaged
25 in on behalf of a corporation--
(a) by a director, employee or agent of the
corporation acting within the scope of the
person's actual or apparent authority; or
(b) by any other person at the direction, or with
30 the consent (express or implied) of such a
director, employee or agent--
is also conduct engaged in by the corporation.
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s. 35
35. Reverse onus of proof in certain cases
In a prosecution against an employer for failing to
pay an employee an amount owed to the employee
under a contract of employment if--
5 (a) the employee is dead; and
(b) the employer alleges that the period shown in
the charge as being the period of continuous
employment of the employee with the
employer is wrong--
10 the employer bears the onus of proving the
allegation.
36. Recovery of money owed
(1) An employee who is owed any money by an
employer under this Act or any other Act, or
15 under any contract of employment or common
rule order, may take proceedings in the Industrial
Division of the Magistrates' Court to recover the
money owing. The debt must arise out of the
employment relationship.
20 (2) The proceedings must be started within 6 years
after the employee's entitlement to the money
arising.
(3) Before proceedings may be started under this
section, the employer must be given a written
25 demand for the money owed.
(4) If the Court is satisfied that the employer--
(a) had reasonable notice of the employee's
claim; and
(b) had no reasonable grounds on which to
30 dispute the claim; and
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part 3--COMPLIANCE
s. 37
(c) in the circumstances should have paid the
claim without the need for proceedings being
taken to establish the validity of the claim--
the Court may order the employer to pay interest
5 to the employee on top of any other amount to
which the employee is entitled.
(5) The interest must not be greater than the rate fixed
under section 2 of the Penalty Interest Rates Act
1983 that applies at the time the Court makes the
10 order.
(6) If a claim is made under this section by an
employee's personal representative, sub-sections
(4) and (5) apply despite anything to the contrary
in section 29 of the Administration and Probate
15 Act 1958.
37. Court may order payment of arrears on finding of
guilt
(1) If the Industrial Division of the Magistrates' Court
finds an employer guilty of an offence relating to
20 the underpayment of an employee, the Court may
order the employer to pay the employee any
amount that the employee was underpaid and that
is still owed to the employee, in addition to
imposing a penalty for the offence.
25 (2) However, under this section the Court may only
order the employer to pay an amount in respect of
a period of up to 6 years.
(3) Sub-sections (4), (5) and (6) of section 36 apply to
this section.
30 (4) An order under this section may be enforced as if
it were an order made by the Court in a civil
proceeding. However, if any amount remains to be
paid after all reasonable means of civil
enforcement have been tried, the order may be
35 enforced as if it were a fine imposed by the Court.
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(5) Nothing in this section limits an employee's rights
under section 36, and nothing in that section limits
the power of the Court under this section.
38. Representation in Magistrates' Court proceedings
5 (1) An employee may be represented in any
proceeding referred to in section 36 or 37 by a
person who is an employee or agent of--
(a) a registered organisation of which the
employee is a member or eligible to become
10 a member; or
(b) a peak body of which an organisation
representing the employee is a member.
(2) An employer may be represented in any
proceeding referred to in section 36 or 37 by a
15 person who is an employee or agent of--
(a) a registered organisation of which the
employer is a member or eligible to become
a member; or
(b) an interested organisation of which the
20 employer is a member or eligible to become
a member; or
(c) a peak body of which an organisation
representing the employer is a member.
39. Proceedings by and against unincorporated clubs
25 (1) For the purposes of this Act, the treasurer of a
club is to be taken to be the employer of a person
employed for the purposes or on behalf of the
club, and any proceeding that may be taken under
this Act by or against the club may be taken by or
30 against the treasurer on behalf of the club.
(2) The treasurer is authorised to retain out of the
funds of the club sufficient money to meet
payments made by the treasurer on behalf of the
club under this section.
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part 3--COMPLIANCE
s. 39
(3) In this section--
"club" means an unincorporated club;
"treasurer" includes a person having possession
or control of any funds of a club.
__________________
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Federal Awards (Uniform System) Act 2002
Act No.
PART 4--GENERAL
s. 40
PART 4--GENERAL
40. Regulations
(1) The Governor in Council may make regulations
for or with respect to prescribing any matter or
thing required or permitted by this Act to be
5 prescribed or necessary to be prescribed to give
effect to this Act.
(2) The regulations--
(a) may be of general or limited application;
(b) may differ according to differences in time,
10 place or circumstances.
__________________
29
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Federal Awards (Uniform System) Act 2002
Act No.
PART 5--AMENDMENT OF COMMONWEALTH POWERS
s. 41
(INDUSTRIAL RELATIONS) ACT 1996
PART 5--AMENDMENT OF COMMONWEALTH POWERS
(INDUSTRIAL RELATIONS) ACT 1996
41. Definition
See: In section 3 of the Commonwealth Powers
Act No.
5 (Industrial Relations) Act 1996, insert the
59/1996.
LawToday: following definition--
www.dms.
dpc.vic.
' "industry" includes--
gov.au
(a) any business, trade, manufacture,
undertaking or calling of employers;
10 and
(b) any calling, service, employment,
handicraft, industrial occupation or
vocation of employees; and
(c) a branch of an industry and a group of
15 industries;'.
42. Common rules
In section 5(1) of the Commonwealth Powers
(Industrial Relations) Act 1996, paragraph (e) is
repealed.
20 43. New section 4A inserted
After section 4 of the Commonwealth Powers
(Industrial Relations) Act 1996 insert--
"4A. Further reference--common rules
(1) The matter of the making of an award or
25 order as, or declaring any term of an award
or order to be, a common rule in the State for
an industry, to the extent to which it is not
otherwise included in the legislative powers
of the Commonwealth, is referred to the
30 Parliament of the Commonwealth for a
period commencing on the day on which
section 43 of the Federal Awards (Uniform
System) Act 2002 commences and ending
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Federal Awards (Uniform System) Act 2002
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PART 5--AMENDMENT OF COMMONWEALTH POWERS
s. 44
(INDUSTRIAL RELATIONS) ACT 1996
on the day fixed under sub-section (2) as the
day on which the reference of that matter
under this Act terminates but no longer.
(2) The Governor in Council, by proclamation
5 published in the Government Gazette, may
fix a day as the day on which the reference
under sub-section (1) terminates.
(3) The matter referred to the Parliament of the
Commonwealth by sub-section (1) is so
10 referred subject to the Commonwealth of
Australia Constitution Act and pursuant to
section 51(xxxvii) of that Act.".
44. Matters excluded from a reference
In section 5(1) and (2) of the Commonwealth
15 Powers (Industrial Relations) Act 1996, after
"section 4" insert "or 4A".
__________________
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Federal Awards (Uniform System) Act 2002
Act No.
PART 6--AMENDMENT OF VICTORIAN CIVIL AND
s. 45
ADMINISTRATIVE TRIBUNAL ACT 1998
PART 6--AMENDMENT OF VICTORIAN CIVIL AND
ADMINISTRATIVE TRIBUNAL ACT 1998
45. Amendment of Schedule 1
See: In Schedule 1 to the Victorian Civil and
Act No.
5 Administrative Tribunal Act 1998, after Part 7
53/1998.
Reprint No. 2 insert--
as at
15 July 2001
"PART 7A--FEDERAL AWARDS (UNIFORM
and
SYSTEM) ACT 2002
amending
Act Nos
98/2000, 28A. Constitution of Tribunal
2/2001,
10 68/2001, In a proceeding under the Federal Awards (Uniform
96/2001 and
System) Act 2002 the Tribunal is to be constituted
36/2002.
by--
LawToday:
www.dms.
(a) one member who, in the opinion of the
dpc.vic.
President, has knowledge of, or experience in,
gov.au
15 industrial relations matters; or
(b) if it is constituted by more than one member, at
least one member who, in the opinion of the
President, has knowledge of, or experience in,
industrial relations matters.
20 28B. Intervention by Minister
The Minister administering the Federal Awards
(Uniform System) Act 2002 may intervene in a
proceeding under that Act at any time before the
Tribunal has finished hearing it.
25 28C. Unincorporated associations can be parties
(1) Section 61(1) does not apply to a proceeding
under the Federal Awards (Uniform System)
Act 2002.
(2) An unincorporated association that is a party to
30 a proceeding under the Federal Awards
(Uniform System) Act 2002 has the same right
to representation in the proceeding as a body
corporate.
32
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Federal Awards (Uniform System) Act 2002
Act No.
PART 6--AMENDMENT OF VICTORIAN CIVIL AND
s. 45
ADMINISTRATIVE TRIBUNAL ACT 1998
28D. Representation
In addition to any right of representation under
section 62, a party to a proceeding under the Federal
Awards (Uniform System) Act 2002 may be
5 represented by an employee or agent of--
(a) a registered organisation or interested
organisation of which the party is a member or
eligible to become a member; or
(b) a peak body of which an organisation
10 representing the employee is a member.".
33
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Federal Awards (Uniform System) Act 2002
Act No.
Endnotes
ENDNOTES
By Authority. Government Printer for the State of Victoria.
34
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