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PARLIAMENT OF VICTORIA
Fair Employment Act 2000
Act No.
TABLE OF PROVISIONS
Clause Page
CHAPTER 1
PRELIMINARY 1
1. Purpose 1
2. Commencement 2
3. Object of Act 2
4. Definitions 3
5. Who is an employee? 8
6. Power to declare persons to be employees 9
7. Who is an employer? 10
8. Who is an outworker? 11
9. What is an industry? 11
10. Categories of employment 11
11. Indexation 12
12. Division of Act into Chapters 14
13. Status of examples 14
14. Act binds the Crown 15
CHAPTER 2
FAIR EMPLOYMENT CONDITIONS 16
PART 1--MINIMUM CONDITIONS 16
Division 1--Introductory 16
15. Effect of Part 16
16. Application of minimum conditions to part-time employees 16
Division 2--Hours of Work 17
17. Hours of work 17
Division 3--Public Holidays 18
18. What are public holidays? 18
19. Public holiday entitlements 18
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Division 4--Annual Leave 19
20. Entitlement to annual leave 19
21. Taking annual leave 19
22. Payment for annual leave 20
23. Payment for annual leave on termination of employment 20
24. Accrual of annual leave 21
Division 5--Personal Leave (Sick Leave and Carer's Leave) 21
25. Definition 21
26. Application of Division 21
27. Entitlement to paid personal leave 21
28. Accumulation of personal leave 22
29. Sick leave--particular provisions 22
30. Carer's leave--particular provisions 23
Division 6--Bereavement Leave 24
31. Entitlement to paid bereavement leave 24
32. Unpaid bereavement leave 25
Division 7--Parental Leave 25
33. Entitlements provided by Division 25
34. Definitions 25
35. Entitlement to parental leave 26
36. Maternity leave 26
37. Transfer of pregnant employee to safe job 28
38. Paternity leave 29
39. Adoption leave 29
40. Variation of period of parental leave 30
41. Parental leave and other entitlements 30
42. Returning to work after a period of parental leave 31
43. Part-time work 31
44. Replacement employees 32
Division 8--Long Service Leave 33
45. Basic entitlement to long service leave 33
46. Additional entitlement to long service leave if employment stops
after 15 years 33
47. Entitlement to long service leave if employment stops after
10 years 34
48. Definition of "employer" 34
49. Meaning of "one employer" 34
50. Employer may apply to reverse the effect of section 49(5)
and (8) 37
51. Meaning of "continuous employment" 37
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52. Whether interruptions are to be included in the period of
employment 39
53. Continuity of service--additional considerations for casuals 40
54. Taking long service leave--alternative provision for casuals 40
55. Payment for long service leave 41
56. Meaning of "ordinary pay" 42
57. Employees to whom this Division does not apply 43
58. When leave is to be taken 44
59. Leave period may be split 45
60. Payment while on leave 45
61. Pay increases while on leave 46
62. Whether holidays occurring during leave count 46
63. Leave in advance 46
64. What is to happen if employment ends before leave taken 47
65. What is to happen if the employee dies before leave is taken 47
66. Payments in lieu forbidden 48
67. Offences concerning leave 48
68. Contracting out prohibited 49
69. Records 49
70. Money due to employee to be treated as arrears of remuneration 50
Division 9--Termination of Employment 50
71. Employee to be given notice of termination 50
72. Employer to be given notice of termination 52
73. Consultation about terminations 52
Division 10--Review of Minimum Conditions 53
74. Review of minimum conditions 53
75. Outcome of review 53
76. Tribunal to take certain matters into account 54
PART 2--INDUSTRY SECTOR ORDERS 55
Division 1--Introductory 55
77. Effect of industry sector order 55
78. Limit on application of industry sector orders 55
79. Application of industry sector conditions to part-time
employees 56
Division 2--Making and Variation of Industry Sector Orders 57
80. Declaration of industry sectors 57
81. Industry sector conditions 57
82. Limitation of power in relation to public holidays 59
83. Minimum wages 59
84. Adoption of National Wage Case decisions 60
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Division 3--Equal Remuneration for Work of Equal or Comparable
Value 61
85. Orders requiring equal remuneration 61
86. Choice of procedure 62
Division 4--Matters to which Tribunal must have Regard 63
87. Tribunal to have regard to federal awards 63
88. Tribunal to take certain matters into account 63
PART 3--PAYMENT OF REMUNERATION 65
89. Employees to be paid in money 65
90. Employees to be paid in full 65
91. Employer not to stipulate how remuneration to be spent 66
92. Unauthorised payments--civil effect 66
93. Liability of principal contractor for remuneration payable to
employees of subcontractor 67
94. Written statements for the purposes of section 93 68
95. Operation of section 93 68
PART 4--CONTINUITY OF SERVICE AND EMPLOYMENT 70
96. Definitions 70
97. How this Part applies 70
98. Continuity of service--transfer of business 70
99. Continuity of service--apprentices or trainees 71
100. Continuity of service--generally 72
CHAPTER 3
WORKPLACE GRIEVANCES AND OTHER EMPLOYMENT-
RELATED MATTERS 74
PART 1--WORKPLACE GRIEVANCES 74
Division 1--Applications to Tribunal to Resolve Workplace
Grievances 74
101. What is a workplace grievance? 74
102. Who may apply to the Tribunal to resolve a workplace
grievance? 75
103. When can an application be made? 76
104. Representative proceedings 76
105. Tribunal may refuse to entertain grievances if the parties have
not attempted to resolve them 77
Division 2--Role of Tribunal in respect of Workplace Grievances 77
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106. Conciliation and mediation 78
107. Powers to resolve workplace grievances 78
108. Powers in relation to unfair contracts 79
109. Exclusion of fair trading jurisdiction in respect of unfair
contracts 80
PART 2--OTHER EMPLOYMENT-RELATED MATTERS 82
Division 1--Entitlements of Former Employees 82
110. Application to recover amounts owing or for compensation for
entitlements not provided 82
111. Tribunal may order payment and interest 83
Division 2--Inquiries 83
112. Inquiries 83
113. Procedure on an inquiry 84
Division 3--Conciliation and Mediation of Industrial Disputes 84
114. Conciliation and mediation of industrial disputes 84
CHAPTER 4
FAIR EMPLOYMENT TRIBUNAL 85
PART 1--THE TRIBUNAL 85
Division 1--Establishment and Membership 85
115. Establishment of Tribunal 85
116. Membership 85
117. Qualifications for appointment--President 85
118. Qualifications for appointment--Vice Presidents 86
119. Qualifications for appointment--Commissioners 87
120. Appointment of judge does not affect tenure etc. 87
121. Full-time and part-time appointments 88
122. Outside employment 88
123. Term of appointment 89
124. Remuneration and allowances 90
125. Disclosure of interests 90
126. Resignation 91
127. Removal from office--presidential members 91
128. Removal from office--Commissioners 92
129. Suspension of Commissioner 92
130. Investigation of Commissioner 92
131. Validity of proceedings 94
Division 2--Acting Appointments 94
132. Acting President 94
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133. Acting Vice Presidents 95
Division 3--Administrative Functions 96
134. Administration of Tribunal's business 96
135. President to advise Minister 96
136. Delegation by President 96
137. Annual report 97
Division 4--Fair Employment Registry 97
138. Establishment of registry 97
139. Functions of registry 97
140. Fair Employment Registrar 98
141. Functions of registrar 99
142. Deputy registrars and other staff 99
143. Register of proceedings 99
144. Registrar's certificate 100
145. Proceeding files 100
Division 5--General 101
146. Judicial notice 101
147. Immunity of participants 101
PART 2--GENERAL FUNCTIONS AND POWERS OF
TRIBUNAL 103
148. Functions and powers of Tribunal 103
149. Directions 103
150. Dismissal of unjustified proceedings 103
151. Power to amend documents 103
152. Extension or abridgment of time and waiver of compliance 104
153. Power of entry and inspection 104
PART 3--GENERAL PROCEDURE OF TRIBUNAL 106
Division 1--Introduction 106
154. General requirement to act fairly and in the public interest 106
155. General procedure 106
Division 2--Parties and Representation 107
156. Joinder of parties 107
157. Representation of parties 108
158. Interpreters 109
Division 3--Constitution of Tribunal 109
159. Constitution of Tribunal in proceedings 109
160. Who presides over a Full Bench? 110
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161. Opinions equally divided 110
162. Reconstitution of Tribunal 110
Division 4--Preliminary Procedure 111
163. How to make an application to the Tribunal 111
164. Registrar or the Tribunal may reject certain applications 111
165. Intervention 112
166. Obtaining information from third parties 113
167. Consolidation of proceedings 113
168. Compulsory conferences 114
169. Evidence inadmissible 114
170. Settlement of proceedings 115
Division 5--Conciliation and Mediation 115
171. Referral for conciliation or mediation 115
172. Tribunal, conciliator or mediator may require personal
attendance 115
173. What happens if conciliation or mediation is successful? 116
174. What happens if conciliation or mediation is unsuccessful? 116
175. Evidence inadmissible 116
Division 6--Referral to Experts 116
176. Use of experts 116
177. Referral of questions of law to Court 116
Division 7--Hearings 117
178. Notice of hearings 117
179. Method of conducting hearings 117
180. Hearings to be public unless otherwise ordered 118
181. Party may object to member hearing the proceeding 118
182. Evidence 119
183. Authorisation of person to take evidence 120
184. Witness summons 120
Division 8--Costs 121
185. Power to award costs 121
186. Amount of costs 121
Division 9--Decisions and Orders 122
187. Reserved decisions 122
188. Written decisions and reasons for them 122
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189. Orders 123
190. Form and service of orders 123
191. General publication of decisions and orders 124
192. When does a decision or order come into operation? 124
193. Correcting mistakes 124
194. Enforcement of monetary orders 125
195. Enforcement of non-monetary orders 125
196. Power to impose conditions 126
197. Variation or revocation of procedural order or direction 126
PART 4--APPEALS 127
198. Appeals to Full Bench 127
199. Appeal to Supreme Court on question of law 128
200. Time limit for instituting an appeal 128
201. Stay of decision or order pending appeal 129
PART 5--RULES 130
202. Rules 130
PART 6--ARRANGEMENTS WITH OTHER AUTHORITIES 131
Division 1--Member may also be Member of Federal Commission 131
203. Member may hold other appointment 131
Division 2--Dual Members 131
204. Appointment of Commonwealth official as member 131
205. Role of dual member 132
Division 3--References to Magistrates and Commonwealth
Officials 132
206. References to magistrates 132
207. References to Commonwealth officials 133
Division 4--Conferences and Joint Sessions with Industrial
Authorities 134
208. Conferences with industrial authorities 134
209. Joint sessions with industrial authorities 134
210. Similar matters before Full Bench and industrial authority 135
211. Member's powers in joint session 136
212. President may decide matter not to be dealt with in joint
session 136
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Division 5--Other Functions etc. and Arrangements 136
213. Functions and powers vested in Tribunal by other jurisdictions 136
CHAPTER 5
COMPLIANCE 137
PART 1--INFORMATION SERVICES 137
Division 1--Appointment of Information Services Officers 137
214. Appointment of information services officers 137
215. Identity cards 137
216. Police to assist information services officers 138
Division 2--Powers of Information Service Officers 138
217. When may powers be exercised? 138
218. Power of entry 139
219. Powers on entry 140
220. Power to require production of documents 140
221. Retention of documents 141
Division 3--Search Warrants 141
222. Search warrant 141
223. Announcement before entry 143
224. Copy of warrant to be given to occupier 143
PART 2--ENTRY AND INSPECTION BY RECOGNISED
ORGANISATIONS 144
225. Inspection permits 144
226. Authority of inspection permit 145
227. Discussions with employees 146
228. When access to premises may be denied on religious grounds 147
229. Conduct not authorised 148
PART 3--VICTIMISATION 149
230. Application of Part 149
231. Prohibition of victimisation 149
232. Application to Tribunal in respect of victimisation 150
233. Powers of Tribunal to redress victimisation 150
PART 4--OFFENCES AND ENFORCEMENT 152
Division 1--Inspection Offences 152
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234. Failing to produce documents and hindering information services
officers 152
235. Giving false information to information services officer 152
236. Protection against self-incrimination 152
237. Impersonation of information services officer 153
238. Inspections by recognised organisations 153
Division 2--Tribunal Offences 153
239. Non-compliance with orders of Tribunal 153
240. Failing to comply with summons 154
241. Failing to give evidence 155
242. Giving false or misleading information to Tribunal 155
243. Misbehaviour at Tribunal 155
Division 3--General Offences 156
244. Attempting, aiding, inducing etc. offences 156
Division 4--Infringement Notices 157
245. Definitions 157
246. Power to serve a notice 157
247. Form of notice 157
248. Late payment of penalty 158
249. Withdrawal of notice 159
250. Payment expiates offence 159
251. Payment not to have certain consequences 159
252. Prosecution after service of infringement notice 160
253. Enforcement of infringement penalty 160
Division 5--Prosecutions, Evidence and Recovery of Money 161
254. Proceedings for offences to be brought in Industrial Division of
the Magistrates' Court 161
255. Who can prosecute under this Act? 161
256. Judicial notice of signatures 162
257. Conduct of agents imputed to corporations 162
258. Reverse onus of proof in certain cases 162
259. Recovery of money owed 163
260. Court may order payment of arrears on finding of guilt 164
CHAPTER 6 GENERAL 166
PART 1--GENERAL PROVISIONS 166
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261. Recognition of organisations 166
262. Records relating to employees 166
263. Service of documents 167
264. Substituted service 168
265. When is service effective? 169
266. Review of interim grievance code of practice 170
267. Regulations 170
PART 2--REPEAL AND TRANSITIONAL PROVISIONS 171
268. Repeal of Long Service Leave Act 1992 171
269. Long service leave exemption 171
270. Workplace grievances 171
271. Recovery of former employees' entitlements 172
272. Industry sectors 172
273. Minimum wages 173
274. Schedule 1A entitlements 174
275. Savings and transitional regulations 174
276. Interpretation of Legislation Act 1984 174
__________________
SCHEDULES 175
SCHEDULE 1--Interim grievance code of practice 175
SCHEDULE 2--Subject matter for rules 177
ENDNOTES 178
INDEX 180
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PARLIAMENT OF VICTORIA
Initiated in Assembly 25 October 2000
As amended in Assembly 16 November 2000
A BILL
to provide for a fresh system of employment regulation in Victoria, to
establish a Fair Employment Tribunal, to repeal the Long Service
Leave Act 1992 and for other purposes.
Fair Employment Act 2000
The Parliament of Victoria enacts as follows:
CHAPTER 1
PRELIMINARY
1. Purpose1
The main purpose of this Act is to provide for a
5 fresh system of employment regulation in Victoria
and to establish a Fair Employment Tribunal.
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Fair Employment Act 2000
s. 2
Act No.
2. Commencement
(1) Subject to sub-section (2), this Act comes into
operation on a day or days to be proclaimed.
(2) If a provision of this Act does not come into
5 operation before 1 July 2001, it comes into
operation on that day.
3. Object of Act
The main object of this Act is to provide a
framework for fair employment standards that
10 supports economic prosperity and social justice
by--
(a) providing the means to ensure the provision
and maintenance of an effective safety net of
fair and enforceable minimum wages and
15 conditions of employment;
(b) ensuring that wages and conditions of
employment provide fair minimum standards
in relation to living standards prevailing in
the community;
20 (c) promoting, as far as practical, consistency
with the federal system of employment
regulation while ensuring and maintaining
appropriate standards of fairness and equity;
(d) providing for mechanisms to ensure the
25 effective, responsive and accessible
resolution of workplace grievances and
providing an accessible forum for the
mediation of industrial disputes;
(e) providing for an effective and efficient
30 economy, with strong economic growth, high
employment, employment security,
improved living standards, low inflation and
national and international competitiveness;
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s. 4
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(f) ensuring equal remuneration for men and
women;
(g) helping balance work and family life;
(h) promoting the effective and efficient
5 operation of businesses and industries;
(i) promoting compliance with Australia's
international obligations in relation to labour
standards.
4. Definitions
10 In this Act--
"casual" has the meaning given by section 10(3);
"Commissioner" means Commissioner of the
Tribunal;
"Commonwealth Act" means the Workplace
15 Relations Act 1996 of the Commonwealth;
"contract" includes--
(a) an arrangement or understanding; and
(b) a collateral contract relating to a
contract;
20 "de facto spouse", of an employee, means a
person of the opposite sex to the employee
who lives with the employee as his or her
husband or wife on a genuine domestic
basis;
25 "Department" means Department of State and
Regional Development;
"doctor" means a registered medical practitioner
within the meaning of the Medical Practice
Act 1994;
30 "doctor's certificate" means a certificate signed
by a doctor;
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Fair Employment Act 2000
s. 4
Act No.
"dual commissioner" has the meaning given in
section 204(1);
"employee" has the meaning given by section 5
and, in Chapter 3, includes a person engaged
5 to perform work under a contract for
services;
"employer" has the meaning given by section 7
and, in Chapter 3, includes a person for
whom, or on whose behalf, work is
10 performed under a contract for services;
"employment entitlement" in respect of a person
engaged to perform work under a contract
for services, means any entitlement that he or
she has under the contract;
15 "Federal Commission" means the Australian
Industrial Relations Commission;
"firm" has the same meaning as in the
Partnership Act 1958;
"former employee" in Division 1 of Part 2 of
20 Chapter 3 includes a person formerly
engaged to perform work under a contract
for services;
"former employer" in Division 1 of Part 2 of
Chapter 3 includes a person for whom, or on
25 whose behalf, work was performed under a
contract for services;
"Full Bench" means the Tribunal constituted in
accordance with section 159(1);
"full-time employee" has the meaning given by
30 section 10(1);
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Fair Employment Act 2000
s. 4
Act No.
"immediate family", in relation to an employee,
includes--
(a) the spouse (including a former spouse,
a de facto spouse and a former de facto
5 spouse) of the employee; and
(b) a child (including an adopted child, a
step child or an ex-nuptial child),
parent, grandparent, grandchild or
sibling of the employee or spouse of the
10 employee;
"industrial authority" means a commission,
court, board, tribunal or other entity having
authority under the law of the
Commonwealth or another State or a
15 Territory to exercise powers of conciliation
or arbitration for industrial matters or
industrial disputes;
"industrial instrument" includes an award or
agreement made under the Commonwealth
20 Act;
"industrial dispute" means--
(a) a dispute (including a threatened,
impending or probable dispute) about
matters pertaining to the relationship
25 between persons who perform work
and persons for whom, or on whose
behalf, work is performed; or
(b) a situation likely to give rise to a
dispute of a kind referred to in
30 paragraph (a)--
and includes a workplace grievance;
"industry" has the meaning given by section 9;
"industry sector order" means an order made
under section 80 or 81(1);
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Fair Employment Act 2000
s. 4
Act No.
"ineligible employee" means an employee whose
rate of remuneration exceeds $71 200 per
year or that amount as indexed under
section 11;
5 "information services officer" means a person
appointed under section 214;
"insolvent under administration" means--
(a) a person who is an undischarged
bankrupt; or
10 (b) a person who has executed a deed of
arrangement under Part X of the
Bankruptcy Act 1966 of the
Commonwealth (or the corresponding
provisions of the law of another
15 jurisdiction) if the terms of the deed
have not been fully complied with; or
(c) a person whose creditors have accepted
a composition under Part X of the
Bankruptcy Act 1966 of the
20 Commonwealth (or the corresponding
provisions of the law of another
jurisdiction) if a final payment has not
been made under that composition;
"lawyer" means a person admitted to legal
25 practice in Victoria or an interstate
practitioner within the meaning of the Legal
Practice Act 1996;
"long-term casual", in relation to an employer,
means a casual employed by the employer on
30 a regular and systematic basis for several
periods of employment during a period of at
least 12 months immediately before the
employee seeks to access an entitlement
under Part 1 of Chapter 2;
35 "minimum condition" means--
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(a) a minimum condition specified in
Divisions 2 to 9 of Part 1 of Chapter 2
as varied by the Tribunal under
Division 10 of that Part; or
5 (b) a minimum condition substituted or
established by the Tribunal under
Division 10 of that Part;
"outworker" has the meaning given by section 8;
"part-time employee" has the meaning given by
10 section 10(2);
"peak body" means a body that is effectively
representative of a significant number of
organisations representing employers or
employees in a range of industries;
15 "pieceworker" means a person employed in an
industry on piecework rates;
"President" means President of the Tribunal;
"presidential member" of the Tribunal means
the President or a Vice President;
20 "presiding member", in a proceeding, means--
(a) in the case of a proceeding before a Full
Bench--the member who presides in
that proceeding as determined in
accordance with section 159;
25 (b) in any other case--the member
constituting the Tribunal for the
purposes of the proceeding;
"proceeding" means a proceeding in the Tribunal
(other than an inquiry under Division 2 of
30 Part 2 of Chapter 3);
"recognised organisation" means an
organisation that is recognised under section
261;
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Fair Employment Act 2000
s. 5
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"records" includes any registers, certificates,
notices, pay sheets and other documents;
"registrar" means Fair Employment Registrar
appointed under section 140;
5 "rules" means rules of the Tribunal made under
section 202;
"Tribunal" means Fair Employment Tribunal
established by section 115;
"Vice President" means Vice President of the
10 Tribunal;
"victimise" has the meaning given by
section 231(2);
"workplace" means any premises or other place
where--
15 (a) a business is being or has been carried
on; or
(b) work of any kind is being or has been
performed;
"workplace grievance" has the meaning given
20 by section 101.
5. Who is an employee?
(1) In this Act, "employee" means--
(a) a person employed in any industry on wages,
piecework rates, commission or other
25 remuneration; or
(b) a person whose usual occupation is that of an
employee in an industry; or
(c) a person who is a member of a class of
persons declared to be employees under
30 section 6; or
(d) an outworker; or
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(e) an apprentice or trainee.
(2) A person is not prevented from being an employee
only because--
(a) the person is working under a contract for
5 labour only, or substantially for labour only;
or
(b) the person works part-time or on a casual
basis; or
(c) the person is a lessee of tools or other
10 implements of production, or of a vehicle
used to deliver goods; or
(d) the person owns, wholly or partly, a vehicle
used to transport goods or passengers.
6. Power to declare persons to be employees
15 (1) A Full Bench may, on application by a recognised
organisation, a peak body or the Minister, make
an order declaring a class of persons who perform
work in an industry under a contract for services
to be employees.
20 (2) The Full Bench may make an order only--
(a) in respect of a class of natural persons each
of whom has consented in writing to being
included in the class for the purposes of
being declared as employees; and
25 (b) if the Full Bench considers that the class of
persons would be more appropriately
regarded as employees.
(3) In considering whether to make an order, the Full
Bench may consider--
30 (a) the relative bargaining power of the class of
persons;
(b) the economic dependency of the class of
persons on the contract;
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(c) the particular circumstances and needs of
low-paid employees;
(d) whether the contract is designed to, or does,
avoid the provisions of this Act, an industry
5 sector order or an industrial instrument;
(e) the particular circumstances and needs of
employees including women, persons from a
non-English speaking background, young
persons and outworkers;
10 (f) the consequences of not making an order for
the class of persons.
(4) An order cannot be made in respect of a class of
persons the rate of remuneration of each of whom
exceeds $71 200 per year or that amount as
15 indexed under section 11.
(5) An order operates prospectively from the date it is
made or the later date specified in it.
7. Who is an employer?
(1) In this Act, "employer" means--
20 (a) a person who employs under a contract of
service or engages under a contract for
services, or who usually so employs or
engages, an employee within the meaning of
this Act, whether the person--
25 (i) is an individual, a corporation, an
unincorporated body or the State; and
(ii) does so on the person's own behalf or
on behalf of some other person; or
(b) a person who is managing director, manager,
30 secretary or member of the managing body
(however called) of a corporation, firm or
association of persons; or
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Act No.
(c) if 4 or more persons are, or claim to be,
partners working in association in an
industry--the firm constituted, or claimed to
be constituted, by the persons; or
5 (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
10 working for the other person under an
arrangement between the organisation or
agency and the other person.
(2) In this section "labour hire agency" means an
entity that conducts a business that includes the
15 supply of services of employees to others.
8. Who is an outworker?
In this Act, "outworker" means a person
engaged, for someone else's industry, in or about a
private residence or other premises that are not
20 necessarily business or commercial premises, to--
(a) pack, process, or work on articles or
material; or
(b) carry out clerical work.
9. What is an industry?
25 In this Act, "industry" includes--
(a) any trade, manufacture, business, project or
occupation in which persons work; or
(b) a part of an industry or a number of
industries.
30 10. Categories of employment
(1) For the purposes of this Act, a "full-time
employee" is an employee (other than a casual)
who is engaged to work 38 ordinary hours per
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week averaged over a 4-week period, or such
other maximum number of ordinary hours per
week as is fixed by a relevant industry sector
order.
5 (2) For the purposes of this Act, a "part-time
employee" is an employee (other than a casual)
who has reasonably predictable hours of work and
who is engaged to work a lesser number of
ordinary hours per week than a full-time employee
10 performing work of the same or a similar nature in
the industry sector.
(3) For the purposes of this Act, a "casual" is an
employee who is engaged on a casual basis.
11. Indexation
15 (1) This section provides a formula under which each
following amount (the "indexable amount") is to
be varied annually on the indexation day by the
indexation factor (if any)--
(a) the amount referred to in the definition of
20 "ineligible employee" in section 4;
(b) the amount referred to in section 6(4);
(c) the amount referred to in section 107(3);
(d) the amount referred to in section 111(2).
(2) The indexation factor, in relation to an indexation
25 day, is the number worked out to 3 decimal places
in accordance with the following formula--
B
A=
C
where--
A is the indexation factor;
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B is the current weekly earnings average in
relation to the indexation day;
C is the base weekly earnings average.
(3) Subject to sub-section (4), if on any indexation
5 day the indexation factor is greater than 1, then,
on and after that day, until a later application of
this sub-section, an indexable amount is taken to
be replaced by the amount worked out by
multiplying the indexable amount by the
10 indexation factor.
(4) If an amount worked out under sub-section (3) is
not $100 or a multiple of $100--
(a) if the amount is not $50 or a multiple of
$50--it is to be rounded up or down to $100
15 or the nearest amount that is a multiple of
$100 as appropriate; or
(b) if the amount is $50 or a multiple of $50--it
is to be rounded up to $100 or the next
highest amount that is a multiple of $100 as
20 appropriate.
(5) If at any time (whether before or after the
commencement of this section) the Australian
Statistician publishes an estimate of the average
total weekly earnings (seasonally adjusted) for
25 full-time adult employees in a particular month in
substitution for such an estimate (except a
preliminary estimate) previously published by the
Australian Statistician for that month, the
publication of the later estimate is to be
30 disregarded for the purposes of this section.
(6) In this section--
"base weekly earnings average" means the last
amount published by the Australian
Statistician before 1 July 2000 as an estimate
35 (except a preliminary estimate) of the
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average total weekly earnings (seasonally
adjusted) for full-time adult employees of all
employees in Australia in a particular month;
"current weekly earnings average", in relation
5 to an indexation day, means the last amount
published by the Australian Statistician
before that day as an estimate (except a
preliminary estimate) of the average total
weekly earnings (seasonally adjusted) for
10 full-time adult employees of all employees in
Australia in a particular month;
"indexation day" means 1 July 2001 or 1 July in
a later year.
12. Division of Act into Chapters
15 (1) This Act is divided into Chapters, Parts and
Divisions.
(2) If a provision of this Act refers to a Chapter by
number, the reference must, unless the context
otherwise requires, be construed as a reference to
20 the Chapter designated by that number in this Act.
(3) If a provision of this Act refers to a Part by a
number, the reference must, unless the context
otherwise requires, be construed as a reference to
the Part designated by that number of the Chapter
25 in which the reference occurs.
13. Status of examples
(1) An example at the foot of a provision of this Act
under the heading "Example" forms part of this
Act.
30 (2) Section 36A of the Interpretation of Legislation
Act 1984 applies to an example of a kind referred
to in sub-section (1).
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14. Act binds the Crown
(1) This Act binds the Crown, not only in right of
Victoria, but also, so far as the legislative power
of Parliament permits, the Crown in all its other
5 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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CHAPTER 2
FAIR EMPLOYMENT CONDITIONS
PART 1--MINIMUM CONDITIONS
Division 1--Introductory
15. Effect of Part2
5
(1) Divisions 2 to 9 of this Part set out minimum
conditions of employment for employees.
(2) Division 10 of this Part provides for the review of
minimum conditions of employment by the
10 Tribunal.
(3) A provision of an industry sector order or 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 the minimum
15 applicable under this Part.
(4) 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
20 employee than the minimum applicable
under this Part; or
(b) provide a condition of employment to an
employee that is less favourable to the
employee than the minimum applicable
25 under this Part.
Penalty: 120 penalty units.
16. Application of minimum conditions to part-time
employees
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(1) Unless the Tribunal otherwise determines in
accordance with this Act, the minimum conditions
apply to part-time employees pro-rata calculated
on the basis that full-time employees work
5 38 ordinary hours per week.
(2) The calculation required to be made by sub-
section (1) is to be based on--
(a) if the employee works a fixed number of
ordinary hours from week to week, that
10 number of hours; or
(b) if the number of ordinary hours worked by
the employee varies from week to week
according to a regular roster cycle, the
average number of ordinary hours worked
15 per week over the period of the roster cycle;
or
(c) in any other case, the average number of
ordinary hours worked per week over the
previous 12 months, including periods of
20 authorised leave.
Division 2--Hours of Work
17. Hours of work
(1) Unless otherwise provided by an industry sector
order, the period for which an employee is
25 required to work must not exceed--
(a) 38 ordinary hours per week averaged over a
4-week period; or
(b) more than 5 hours of continuous work
without a minimum of a 30 minute break.
30 (2) An employee is entitled to a rest pause of at least
10 minutes in each 4 consecutive hours of
working time.
(3) The rest pause--
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(a) is to be taken when practicable; and
(b) is part of the employee's working time; and
(c) if continuity of work is necessary--must be
taken when it does not interfere with
5 continuity.
Division 3--Public Holidays
18. What are public holidays?
(1) In this Act "public holiday" means--
(a) a day or half-day appointed under the Public
10 Holidays Act 1993 as a public holiday or
public half-holiday in the relevant place; or
(b) a day or half-day substituted by the Tribunal
by the relevant industry sector order for a
public holiday referred to in paragraph (a) in
15 the relevant place.
(2) For the purposes of the Public Holidays Act
1993, a day or half-day substituted by the
Tribunal by an industry sector order as a public
holiday in a particular year in a particular place
20 replaces the public holiday for which it was
substituted.
19. Public holiday entitlements
(1) An employee, other than a casual, who would
ordinarily be required to work on a day on which
25 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) Sub-section (1) applies whether the employee--
(a) works on that day; or
30 (b) does not work on that day because of the
holiday.
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(3) Sub-section (1) does not apply if the employee is
rostered off on a public holiday.
(4) If an employee does work on a public holiday, the
employer must pay the employee at the rate
5 specified by the relevant industry sector order.
(5) Sub-section (4) does not apply if the relevant
industry sector order provides otherwise.
Division 4--Annual Leave
20. Entitlement to annual leave
10 (1) This section does not apply to casuals.
(2) For each completed year of employment with an
employer, an employee is entitled to at least
4 weeks annual leave.
(3) Annual leave is exclusive of a public holiday that
15 falls during the leave.
(4) 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
20 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
25 of illness or injury certified to by a doctor.
(5) This section does not operate to confer an
entitlement or an additional entitlement in relation
to employment before the commencement of this
section.
30 21. Taking annual leave
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(1) An employee and employer may agree when the
employee is to take annual leave.
(2) If the employee and employer cannot agree, the
employer--
5 (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.
10 (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
15 end of the completed year of employment, to the
balance of the leave that would be due at the end
of the year.
22. Payment for annual leave
(1) Unless an employee and employer otherwise
20 agree, the employer must pay the employee for
annual leave in advance.
(2) The employer must pay for the leave at the
ordinary rate being paid to the employee
immediately before the leave is taken.
25 23. 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
30 to which the employee is entitled, the employer
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must immediately pay the employee for the annual
leave not taken, including annual leave loading.
(3) If the employee has been employed for a period of
less than 1 year, the employer must pay the
5 employee proportionate annual leave for the
period.
(4) The employer must pay the employee at least at
the ordinary rate being paid to the employee
immediately before the termination day.
10 24. Accrual of annual leave
Annual leave accrues on a pro-rata basis.
Division 5--Personal Leave (Sick Leave and Carer's Leave)
25. Definition
In this Division--
15 "accumulated personal leave" means personal
leave accumulated under section 28.
26. Application of Division
(1) Subject to section 30(6), this Division does not
apply to casuals.
20 (2) This Division does not apply if a relevant industry
sector order provides otherwise.
(3) This Division does not operate to confer an
entitlement or an additional entitlement in relation
to employment before the commencement of this
25 section.
27. Entitlement to paid personal leave
(1) An employee is entitled to paid personal leave
when he or she is absent from work--
(a) due to personal illness or injury ("sick
30 leave");
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(b) for the purposes of caring for an immediate
family or household member who is sick and
requires the employee's care and support
("carer's leave").
5 (2) The amount of paid personal leave to which an
employee is entitled depends on how long he or
she has worked for the employer and accrues as
follows--
Length of time worked for
the employer Paid personal leave
Less than 12 months 1 day for each completed
6 weeks
12 months or more 8 days per year.
28. Accumulation of personal leave
10 At the end of each year of employment unused
personal leave accrues by the lesser of--
(a) 8 days; or
(b) the balance of the year's unused personal
leave.
15 29. Sick leave--particular provisions
(1) After the first 5 months of service, an employee
must be paid for any sick leave to which he or she
was not entitled, due to insufficient service, up to
a maximum of 4 days.
20 (2) An employee who is receiving payments under the
Accident Compensation Act 1985 is not entitled
to sick leave.
(3) An employee's entitlement to sick leave is
conditional on--
25 (a) the employee promptly notifying the
employer of--
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(i) any illness or injury that will cause the
employee to be absent from work; and
(ii) the approximate period for which he or
she will be absent; and
5 (b) if the employee is absent for more than
2 days, the employee giving the employer--
(i) a doctor's certificate about the nature of
the illness or injury and the
approximate period for which the
10 employee will be absent; or
(ii) other evidence of the illness or injury to
the employer's satisfaction.
(4) If an employee's employment is terminated by his
or her employer and he or she is re-engaged by the
15 same employer within a period of 6 months after
the termination, the employee's unclaimed balance
of sick leave continues from the date of re-
engagement.
30. Carer's leave--particular provisions
20 (1) An employee is entitled to use up to 5 days
personal leave each year to care for members of
his or her immediate family or household who are
sick and require care and support and for whose
care and support the employee is responsible.
25 (2) An employee is not entitled to take carer's leave if
another person has taken leave to care for the
same person.
(3) An employee's entitlement to carer's leave is
conditional on--
30 (a) the employee promptly notifying the
employer of his or her inability to attend for
duty; and
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(b) if the employer so requires, giving the
employer--
(i) a doctor's certificate about the nature of
the sickness of the person concerned
5 and the need of that person for care and
support by another person; or
(ii) other evidence of the sickness and need
for care and support to the employer's
satisfaction.
10 (4) Notification under sub-section (3)(a) must
include--
(a) the name of the person requiring care and
support and their relationship to the
employee;
15 (b) the reason for taking carer's leave;
(c) the approximate period for which he or she
will be absent from work.
(5) An employee may take unpaid carer's leave by
agreement with the employer.
20 (6) A long-term casual may take--
(a) up to 5 days unpaid carer's leave; and
(b) by agreement with the employer, additional
unpaid carer's leave.
Division 6--Bereavement Leave
25 31. Entitlement to paid bereavement leave
(1) A full-time employee is entitled to up to 2 days
paid bereavement leave on the death of a member
of the employee's immediate family or household.
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(2) A part-time employee is entitled to up to 2 days
paid bereavement leave on the death of a member
of the employee's immediate family or household
to be taken on either or both of the 2 days next
5 following the death on which the employee would
normally work.
(3) The employee must give the employer such
evidence of the death as the employer reasonably
requires.
10 32. Unpaid bereavement leave
(1) A long-term casual may take unpaid bereavement
leave of up to 2 days or, by agreement with the
employer, a longer period, on the death of a
member of the casual's immediate family or
15 household.
(2) An employee (other than a long-term casual) may
take a period of unpaid bereavement leave by
agreement with the employer.
Division 7--Parental Leave
20 33. Entitlements provided by Division
Subject to this Division, employees other than
casuals who are not long-term casuals, are entitled
to maternity, paternity and adoption leave and to
work part-time in connection with the birth or
25 adoption of a child.
34. Definitions
In this Division--
"child", other than for adoption leave, means a
child of the employee under the age of one
30 year;
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"child", for adoption leave, means a child who is
under the age of 5 years and placed with the
employee for the purposes of adoption but
does not include a child who--
5 (a) is the child or step-child of the
employee or of the spouse of the
employee; or
(b) has previously lived continuously with
the employee for a period of 6 months
10 or more;
"parental leave" means maternity leave,
paternity leave or adoption leave.
35. Entitlement to parental leave
(1) After 12 months continuous service, parents are
15 entitled to a combined total of 52 weeks unpaid
parental leave on a shared basis in relation to the
birth or adoption of their child.
(2) Females may take maternity leave and males may
take paternity leave. Adoption leave may be taken
20 in the case of adoption.
(3) Parental leave is to be available to only one parent
at a time, except that both parents may
simultaneously access the leave in the following
circumstances--
25 (a) for maternity and paternity leave, an
unbroken period of one week at the time of
the birth of the child;
(b) for adoption leave, an unbroken period of up
to 3 weeks at the time of the placement of
30 the child.
36. Maternity leave
(1) An employee must provide notice to the employer
in advance of the expected date of commencement
of parental leave.
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(2) The employee must give the employer--
(a) at least 10 weeks' written notice of intention
to take the leave accompanied by a doctor's
certificate which states that the employee is
5 pregnant and giving the expected date of
birth; and
(b) at least 4 weeks' written notice of the dates
on which the employee wants to start and
end the leave.
10 (3) The employee must provide with a notice under
sub-section (2)(a) a statutory declaration stating
particulars of any period of paternity leave sought
or taken by her spouse and that for the period of
maternity leave she will not engage in any
15 conduct inconsistent with her contract of
employment.
(4) An employee is not in breach of sub-section (2) as
a consequence of failure to give a required period
of notice if the failure is because of the birth
20 occurring earlier than the presumed date.
(5) Subject to section 35(1) and unless agreed
otherwise between the employee and employer, an
employee may commence parental leave at any
time within 6 weeks immediately prior to the
25 expected date of the birth.
(6) If an employee--
(a) continues to work within the 6 week period
immediately prior to the expected date of
birth; or
30 (b) elects to return to work within 6 weeks after
the birth of the child--
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the employer may require the employee to provide
a doctor's certificate stating that she is fit to work
on her normal duties.
(7) If the pregnancy of an employee terminates after
5 28 weeks and the employee has not commenced
maternity leave, the employee may take unpaid
special maternity leave of such period as a doctor
certifies as necessary.
(8) If an employee is suffering from an illness not
10 related to the direct consequences of a pregnancy
termination referred to in sub-section (7), the
employee may be entitled to paid sick leave in
lieu of, or in addition to, special maternity leave.
(9) An employee may return to work at any time
15 during a period of maternity leave, as agreed
between the employee and the employer, provided
that the time is not more than 4 weeks from the
recommencement date desired by the employee.
37. Transfer of pregnant employee to safe job
20 (1) This section only applies if an employee is
pregnant and, in the opinion of a doctor, illness or
risks arising out of the pregnancy or hazards
connected with the work assigned to the employee
make it inadvisable for the employee to continue
25 at her present work.
(2) The employee must, if the employer deems it
practicable, be transferred to a safe job at the rate
and on the conditions attaching to that job until
the commencement of maternity leave.
30 (3) If the transfer to a safe job as mentioned in sub-
section (2) is not practicable, the employee may
elect, or the employer may require the employee,
to commence parental leave.
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38. Paternity leave
An employee must provide the employer at least
10 weeks prior to each proposed period of
paternity leave with--
5 (a) a doctor's certificate which names his
spouse, states that she is pregnant and the
expected date of birth, or states the date on
which the birth took place; and
(b) written notification of the dates on which he
10 wants to start and end the leave; and
(c) a statutory declaration stating--
(i) that he will take that period of paternity
leave to become the primary care-giver
of a child; and
15 (ii) particulars of any period of maternity
leave sought or taken by his spouse;
and
(iii) that for the period of paternity leave he
will not engage in any conduct
20 inconsistent with his contract of
employment.
39. Adoption leave
(1) An employee must give the employer at least
10 weeks' written notice of--
25 (a) the period of adoption leave to be taken; and
(b) the date on which the employee wants to
start the leave.
(2) Before starting adoption leave, an employee must
provide the employer with a statutory declaration
30 stating--
(a) that the employee is seeking adoption leave
to become the primary care-giver of the
child; and
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(b) particulars of any period of adoption leave
sought or taken by the employee's spouse;
and
(c) that for the period of adoption leave the
5 employee will not engage in any conduct
inconsistent with his or her contract of
employment.
(3) An employer may require an employee to provide
confirmation from the appropriate government
10 authority of the placement of the child with the
employee for the purposes of adoption.
(4) If the placement of a child for the purposes of
adoption with an employee does not proceed or
continue, the employee must notify the employer
15 immediately and the employer must nominate a
time, not more than 4 weeks from receipt of the
notification, for the employee's return to work.
(5) An employee is not in breach of this section as a
consequence of failure to give a required period of
20 notice if the failure results from--
(a) a requirement of an adoption agency to
accept earlier or later placement of the child;
or
(b) the death of a spouse; or
25 (c) other compelling circumstances.
40. Variation of period of parental leave
(1) Unless otherwise agreed between the employee
and employer, an employee may apply to the
employer to change the period of parental leave
30 on one occasion.
(2) An application must be made under sub-section
(1) at least 4 weeks before the commencement of
the changed arrangements.
41. Parental leave and other entitlements
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An employee may, in lieu of or in conjunction
with parental leave, access other paid leave
entitlements that he or she has accrued, such as
annual leave or long service leave, subject to the
5 total amount of leave not exceeding 52 weeks.
42. Returning to work after a period of parental leave
(1) An employee must give notice of his or her
intention to return to work after a period of
parental leave at least 4 weeks before the end of
10 the leave.
(2) An employee is entitled to the position which he
or she held immediately before proceeding on
parental leave.
(3) In the case of an employee transferred to a safe
15 job under section 37(2), the employee is entitled
to return to the position that she held immediately
before that transfer.
(4) If the position to which an employee is entitled
under this section no longer exists but there are
20 other positions available which the employee is
qualified for and is capable of performing, the
employee is entitled to a position as nearly
comparable in status and pay to that of his or her
former position.
25 43. Part-time work
(1) An employee responsible for the care of his or her
child or who is pregnant may agree with the
employer to work part-time up to the child's
second birthday or, in the case of adoption, for up
30 to 2 years from the time of adoption.
(2) Commencement of part-time work under this
section, and return from part-time work to full-
time work under this section, does not break the
employee's continuity of service or employment.
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(3) Before commencing a period of part-time
employment under this section the employee and
the employer must agree--
(a) that the employee may work part-time; and
5 (b) on the hours to be worked by the employee,
the days on which they will be worked and
commencing times for the work; and
(c) on the classification applying to the work to
be performed; and
10 (d) on the period of part-time employment.
(4) The terms of an agreement referred to in sub-
section (3) or any variation to it must be put in
writing and retained by the employer.
(5) The employer must provide the employee with a
15 copy of an agreement referred to in sub-section
(3) or any variation to it.
(6) Any termination entitlements payable to an
employee whose employment is terminated while
working part-time under this section, or while
20 working full-time after transferring from part-time
work under this section, must be calculated by
reference to the full-time rate of pay at the time of
termination and by regarding--
(a) all service as a full-time employee as
25 qualifying for a termination entitlement
based on the period of full-time employment;
and
(b) all service as a part-time employee on a pro
rata basis.
30 44. Replacement employees
(1) A replacement employee is an employee
specifically engaged, part-time or full-time, or
temporarily promoted or transferred, as a result of
an employee proceeding on parental leave or as a
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result of an employee working part-time under
section 43.
(2) Before an employer engages a replacement
employee the employer must inform that person of
5 the temporary nature of the employment and of
the rights of the employee who is being replaced.
Division 8--Long Service Leave
45. Basic entitlement to long service leave
An employee is entitled to--
10 (a) 13 weeks of long service leave on ordinary
pay on completing 15 years of continuous
employment with one employer; and
(b) 41/3 weeks of long service leave on ordinary
pay on completing each period of 5 years of
15 continuous employment with that employer
after the first 15 years of continuous
employment with that employer.
46. Additional entitlement to long service leave if
employment stops after 15 years
20 (1) This section only applies if an employee stops
working for an employer after completing 15
years of continuous employment with that
employer.
(2) The employee is entitled to an amount of long
service leave equal to 1/60th of the period of his or
25
her continuous employment with that employer
since he or she last became entitled to long service
leave under section 45.
(3) The period of an employee's long service leave
30 that relates to a period of employment before 1
January 1965 and that had not been taken before
the commencement of this Division is to be
reduced by one quarter.
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47. Entitlement to long service leave if employment stops
after 10 years
(1) This section only applies if an employee's
employment is ended for any reason other than
5 dismissal for serious and wilful misconduct and
the employee has completed at least 10, but less
than 15, years of continuous employment with one
employer.
(2) The employee is entitled to an amount of long
service leave equal to 1/60th of the period of his or
10
her continuous employment.
48. Definition of "employer"
In this Division--
"employer" includes, in relation to a transfer
15 referred to in section 49, a person who was
not an employer at the time of the transfer.
49. Meaning of "one employer"
(1) This section sets out several situations in which an
employee is to be regarded, for the purposes of
20 this Division, as having been employed by the one
employer, even though the employee may have
worked over the relevant period of time for more
than one employer in a strict legal sense.
(2) If an employee is employed by a corporation, he
25 or she is to be regarded as having been employed
by that corporation during any period that--
(a) he or she was employed by a related
corporation of that corporation (within the
meaning of the Corporations Law); or
30 (b) he or she was employed by another
corporation and--
(i) the directors of that other corporation
and the employee's present employer
were substantially the same; or
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(ii) that other corporation and the
employee's present employer were
under substantially the same
management.
5 (3) If the ownership of a business employing someone
changes but the employment of the employee
continues, the employee is to be regarded as
having started employment with the new owner on
the date on which the employee started his or her
10 employment at that business.
(4) Sub-section (3) applies regardless of whether the
change occurred before or after the
commencement of this Division.
(5) If an employee was dismissed from employment
15 by the owner of a business, but the ownership of
the business changes and the new owner employs
the employee within 3 months after the dismissal,
the employee is to be regarded as--
(a) having finished employment with the former
20 owner on the day before the ownership of the
business changed; and
(b) having started employment with the new
owner on the day the ownership changed;
and
25 (c) having been employed by the new owner
from the date on which the employee first
started employment at that business.
(6) If an employee performs duties in connection with
any assets used in the carrying on of a business of
30 his or her employer and those assets are
transferred to another employer who continues the
employment of the employee, the employee is to
be regarded as having started employment with
the new owner on the date on which the employee
35 started his or her employment at that business.
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(7) Sub-section (8) only applies if an employee
performs duties in connection with any assets
used in the carrying on of a business of an
employer and--
5 (a) the employee is dismissed by that employer;
and
(b) those assets are transferred to another
employer; and
(c) the other employer employs the employee
10 within 3 months after the date of the
dismissal to perform duties in relation to
those assets, or other assets of a similar kind.
(8) If this sub-section applies, the employee is to be
regarded as--
15 (a) having finished employment with his or her
former employer on the day before the assets
were transferred; and
(b) having started employment with the new
employer on the day the assets were
20 transferred; and
(c) having been employed by the new employer
from the date on which the employee first
started employment at that business.
(9) Sub-sections (5), (6) and (8) do not apply if the
25 transfer or change of ownership occurred before
11 October 1984.
(10) In this section--
"assets" includes land, plant and equipment;
"business" includes a trade, process or
30 occupation and any part of a trade, process
or occupation and also includes any part of a
business;
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"transfer" includes a transmission, conveyance,
assignment or succession, whether by
agreement or by operation of law.
50. Employer may apply to reverse the effect of section
5 49(5) and (8)
(1) A new owner or employer referred to in sub-
section (5) or (8) of section 49 may apply to the
Tribunal for a declaration that one or other of
those sub-sections does not apply to the
10 employment of an employee or of a class of
employee.
(2) The Tribunal may make such a declaration if the
employer satisfies it that the employment of the
employee, or the class of employee, was not
15 related to the change of ownership or transfer of
assets (as the case may be).
(3) Section 49(5) or (8) does not apply to the
employment of an employee, or of a class of
employee, in respect of whom such a declaration
20 is made.
51. Meaning of "continuous employment"
(1) This section sets out several situations in which an
employee is to be regarded, for the purposes of
this Division, as having been continuously
25 employed even though in a strict legal sense it
could be said that the employee's employment was
interrupted.
(2) An employee's employment is to be regarded as
being continuous despite--
30 (a) the taking of any annual leave or long
service leave;
(b) the taking of any personal leave;
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(c) the taking of a period of parental leave not
exceeding 12 months or any longer period
specified in the employee's contract of
employment;
5 (d) the taking of any other leave granted by his
or her employer;
(e) any interruption or ending of the
employment by the employer if the
interruption or ending is made with the
10 intention of avoiding obligations in respect
of long service leave or annual leave;
(f) in the case of an employee performing duties
in relation to assets of a particular kind, any
absence from work arising solely because of
15 a transfer to which section 49(6) applies of
those assets from one employer to another
employer;
(g) any interruption arising directly or indirectly
from an industrial dispute;
20 (h) the dismissal of the employee, but only if he
or she is re-employed within a period not
exceeding 3 months after his or her
dismissal;
(i) the standing-down of the employee on
25 account of slackness of trade or business;
(j) any other absence from work approved by
his or her employer either before or after it
occurs.
(3) If the employment of an employee who was
30 apprenticed to an employer is continued by the
employer within 12 months after the completion
of the apprenticeship, the period of the
apprenticeship is to be counted as part of the
continuous employment of the employee with that
35 employer.
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(4) Sub-section (3) applies regardless of whether the
continuation occurred before or after the
commencement of this Division.
(5) For the purposes of this Division, the continuous
5 employment by an employer of an employee who
is employed by the employer at the
commencement of this Division is to be regarded
as starting at the actual day (before the
commencement of this Division) of that
10 employment.
52. Whether interruptions are to be included in the period
of employment
(1) The absences from work referred to in section
51(2)(a), (e) and (f) are to be counted as part of
15 the period of an employee's employment.
(2) Any absence from work on personal leave for a
period of not more than 48 weeks in any year is to
be counted as part of the period of an employee's
employment, but any absence on personal leave in
20 excess of that period is not to be counted.
(3) Any absence from work on parental leave is not to
be counted as part of the period of an employee's
employment.
(4) Any period of leave referred to in section 51(2)(d)
25 is to be counted as part of the period of an
employee's employment unless, on it being
granted, it was agreed in writing between the
employee and the employer (at the request of the
employee) that it is not to be counted.
30 (5) The absences from work referred to in section
51(2)(g), (h), (i) and (j) are not to be counted as
part of the period of an employee's employment.
(6) In computing long service leave under this
Division, any long service leave (or payment in
35 lieu of long service leave) granted to an employee
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in respect of any period of employment which is
under this section, or under section 50 or 51, to be
taken into account in computing the employee's
entitlement to long service leave under this
5 Division is to be taken into account and regarded
as having been leave taken under this Division.
53. Continuity of service--additional considerations for
casuals
(1) The service of a casual who is employed more
10 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
15 employment; or
(c) the employee is employed by the employer
under 2 or more contracts of employment; or
(d) the employee has engaged in other
employment during the period.
20 (2) However, the continuous service ends if the
employment is broken by more than 3 months
between the end of one contract of employment
and the start of the next.
(3) Subject to sub-section (2), a period when the
25 casual was not employed by the employer must be
taken into account in working out the length of the
employee's continuous service.
(4) This section does not limit any other entitlement
to long service leave that an employee may have.
30 54. Taking long service leave--alternative provision for
casuals
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(1) An employer may agree with a casual that his or
her entitlement to long service leave may be taken
in the form of its full-time equivalent.
Example
5 If an employee--
(a) is entitled to be paid for 190 hours long service leave;
and
(b) works under an industry sector order that provides for
a full-time working week of 38 ordinary hours--
10 the employee and the employer may agree that the employee
take 5 weeks leave (190 ÷ 38 = 5).
(2) This section applies subject to a provision in a
relevant industry sector order about long service
leave.
15 55. Payment for long service leave
(1) The minimum amount payable to a casual
employee for long service leave is worked out
using the formula--
actual service 13
× × hourly rate
52 15
20 Example
An employee who worked 15 600 ordinary working hours
over a 15 year period and is being paid an hourly rate of $10
would be entitled to be paid--
15 600 13
× × $10
52 15
= 260 × $10 = $2600 .
25
(2) An employee and employer may agree on the
times when, and the way in which, the employee
will be paid for long service leave.
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(3) An amount payable for long service leave
becomes payable at a time agreed between the
employee and employer.
(4) In this section--
5 "actual service" means the total ordinary hours
actually worked by an employee during the
employee's period of continuous service;
"casual employee" means a casual referred to in
section 53(1);
10 "hourly rate" means the hourly rate for ordinary
time payable to the employee--
(a) if the employee takes long service
leave--on the day that the employee
starts the leave; or
15 (b) if the employee's employment is
terminated--on the date that the
termination takes effect.
56. Meaning of "ordinary pay"
(1) For the purposes of this Division, "ordinary
20 pay" means the pay an employee is entitled to
receive at the time he or she takes long service
leave for working his or her normal weekly hours
at his or her ordinary time rate of pay.
(2) Ordinary pay includes the cash value of any board
25 or lodging that the employee receives from his or
her employer.
(3) If no ordinary time rate of pay is fixed for an
employee's work under his or her contract of
employment, the employee's ordinary time rate of
30 pay is to be taken to be the average weekly rate
earned by him or her in the 12 months
immediately before taking long service leave.
(4) If no normal weekly number of hours of work is
fixed for an employee under his or her contract of
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employment, the employee's normal weekly
number of hours is to be taken to be the average
weekly number of hours worked by him or her in
the 12 months immediately before taking long
5 service leave.
(5) If an employee defers the taking of long service
leave under a written agreement with the
employer made at the request of the employee, the
ordinary time rate of pay that is to be used in
10 calculating the employee's ordinary pay for the
time he or she is on leave is to be the rate agreed
on in the agreement.
(6) The rate agreed on in an agreement referred to in
sub-section (5) must not be less than the rate to
15 which the employee is entitled on the date the
entitlement to the leave arises and any provision
to the contrary in an agreement is of no effect.
57. Employees to whom this Division does not apply
(1) This Division does not apply to any employee
20 who--
(a) is entitled to long service leave under any
Act other than this Act; or
(b) is in a class of employees who are entitled to
long service leave under a contract of
25 employment (regardless of whether it was
made before or after the commencement of
this Division) on a basis that, in the opinion
of the Tribunal, is more favourable than that
provided by this Division; or
30 (c) is employed by an employer who is
exempted under this section from complying
with this Division in respect of him or her.
(2) An employer may apply to the Tribunal to be
exempted from complying with this Division in
35 respect of all or any, or any class of, employees.
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(3) The Tribunal may grant such an application if it is
satisfied--
(a) that the employees in respect of whom the
application is made are entitled under their
5 terms and conditions of employment, on a
basis no less favourable than that prescribed
by this Division--
(i) to long service leave;
(ii) (whether or not solely at the cost to the
10 employer, but at a cost to the employer
that is no less than the cost involved in
providing long service leave under this
Division) to superannuation benefits or
to superannuation benefits and long
15 service leave; and
(b) that the entitlement better serves the interests
of the employees than the entitlement
provided by this Division.
(4) The Tribunal may grant the application subject to
20 conditions and may at any time impose conditions
or further conditions on the grant.
(5) The Tribunal may revoke an exemption at any
time.
58. When leave is to be taken
25 (1) An employer must allow an employee to take long
service leave as soon as practicable after the
employee becomes entitled to the leave having
regard to the needs of the employer's business.
Penalty: 10 penalty units.
30 (2) An employee and an employer may agree to
postpone the taking of long service leave by the
employee.
(3) If an employee and an employer cannot agree to
the postponing of an employee's leave, one or
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other of them may apply to the Tribunal for an
order concerning the postponement.
(4) The Tribunal may make an order concerning the
postponement of an employee's long service leave
5 after it has had regard to the problems involved,
but it cannot order that the leave start within
6 months after the date of the order.
(5) An entitlement to long service leave remains,
regardless of any postponement of the leave, and
10 regardless of any failure or refusal of an employer
to grant the leave.
59. Leave period may be split
(1) Long service leave must be taken in one period.
(2) However, if an employee and an employer agree,
15 an employee--
(a) may take the first 13 weeks of long service
leave to which he or she is entitled in 2 or 3
separate periods; and
(b) may take any further long service leave to
20 which he or she becomes entitled in
2 separate periods.
60. Payment while on leave
(1) An employer must give an employee the pay to
which the employee is entitled in respect of long
25 service leave in one of the following ways--
(a) in full when the employee starts his or her
leave; or
(b) at the same time as the employee would
receive the pay if the employee were still at
30 work; or
(c) in any other way agreed between the
employee and the employer.
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(2) If the method set out in sub-section (1)(b) is used,
the employer must send each payment by cheque
to a specified address, if asked to do so by the
employee in writing.
5 Penalty: 10 penalty units.
61. Pay increases while on leave
(1) If the ordinary pay of an employee who is on long
service leave increases while the employee is
taking the leave, he or she is entitled to be paid the
10 increased rate from the time of the increase.
(2) If the employee was paid in full at the start of the
leave or was paid in advance with respect to any
period of leave, the employer must pay the
additional amount resulting from the increase as
15 soon as the employee returns to work.
Penalty: 10 penalty units.
62. Whether holidays occurring during leave count
Long service leave includes any public holiday
that occurs during the period when the leave is
20 taken, but does not include any annual leave
occurring during that period.
63. Leave in advance
(1) An employer may grant an employee long service
leave before the employee becomes entitled to that
25 leave.
(2) If an employer does this and the employee takes
the leave, the employee is not entitled to any
further long service leave or payment in lieu of
long service leave for the period of employment in
30 respect of which the leave in advance was
granted.
(3) If the employment of an employee who has taken
leave in advance ends, the employer may deduct
from any payment payable to the employee as a
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result of the ending of his or her employment an
amount equal to the amount paid to the employee
for the leave (if any) in respect of which the
employee will not become entitled.
5 64. What is to happen if employment ends before leave
taken
(1) If the employment of an employee ends before he
or she has taken all the long service leave to
which he or she is entitled, the employee is to be
10 regarded as having started to take his or her leave
on the day the employment ended.
(2) On that day the employer must pay the employee
the full amount of the employee's long service
leave entitlement as at that day.
15 Penalty: 10 penalty units.
(3) An employee's long service leave entitlement
under this section includes any entitlement that
accrued as a result of the ending of the employee's
employment.
20 65. What is to happen if the employee dies before leave is
taken
(1) If an employee dies before taking all the long
service leave to which he or she is entitled, the
employer must pay to the employee's personal
25 representative the full amount of the long service
leave entitlement still owed to the employee (if
any).
Penalty: 10 penalty units.
(2) An employee's long service leave entitlement
30 under this section includes any entitlement that
accrued as a result of the employee's death ending
the employee's employment.
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(3) For the purposes of calculating the amount to be
paid under this section--
(a) the ordinary pay of the employee is the
amount the employee was entitled to receive
5 as at the time of his or her death for working
his or her normal weekly hours at his or her
ordinary rate of pay;
(b) any average that needs to be taken for the
purposes of section 56 is to be taken over the
10 12 months immediately before the
employee's death.
66. Payments in lieu forbidden
(1) An employer must not give an employee a
payment in lieu of long service leave, or in lieu of
15 any part of long service leave, except as permitted
by this Division.
Penalty: 10 penalty units.
(2) An employee must not accept any payment in lieu
of long service leave, or in lieu of any part of long
20 service leave, except as permitted by this
Division.
Penalty: 10 penalty units.
67. Offences concerning leave
(1) An employee must not work for hire or reward
25 while he or she is taking long service leave.
Penalty: 10 penalty units.
(2) A person must not knowingly employ another
person for hire or reward while that other person
is taking long service leave.
30 Penalty: 10 penalty units.
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68. Contracting out prohibited
(1) Unless expressly allowed by this Division, any
provision in any contract of employment that
annuls, varies or excludes any provision of this
5 Division is of no effect, regardless of when the
contract was made.
(2) This section does not affect any provision of a
contract of employment that confers greater rights
on an employee than those conferred by this
10 Division.
69. Records
(1) An employer must keep long service leave records
in the form approved by the Secretary to the
Department and containing the details required by
15 him or her.
Penalty: 10 penalty units.
(2) An employer must retain a long service leave
record for at least 7 years after the employee to
whom the record relates dies or stops working for
20 the employer.
Penalty: 10 penalty units.
(3) A person must not make any false or misleading
statement in, or any material omission from, a
long service leave record made under this section.
25 Penalty: 10 penalty units.
(4) It is a defence to a charge under sub-section (3) if
the person charged proves to the satisfaction of
the Court that the statement or omission
complained of resulted from a genuine error.
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(5) Despite anything to the contrary in this or in any
other Act, a charge under this section may be filed
at any time within 5 years after the commission of
the alleged offence.
5 70. Money due to employee to be treated as arrears of
remuneration
Any amount owed under this Division by an
employer to an employee or his or her personal
representative is to be regarded for the purposes of
10 this Act as arrears of remuneration.
Division 9--Termination of Employment
71. Employee to be given notice of termination
(1) An employer must not terminate an employee's
employment unless--
15 (a) the employee has been given either the
period of notice required by this section, or
compensation instead of notice; or
(b) the employee is guilty of serious misconduct,
that is, misconduct of a kind such that it
20 would be unreasonable to require the
employer to continue the employment during
the notice period.
(2) The required period of notice is first worked out
using this table--
Employee's period of
continuous service with the
employer Period of notice
Not more than 1 year At least 1 week
More than 1 year but not
more than 3 years At least 2 weeks
More than 3 years but not
more than 5 years At least 3 weeks
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More than 5 years At least 4 weeks
(3) The period of notice is increased by one week if
the employee is over 45 years old and has
completed at least 2 years continuous service with
the employer.
5 (4) The amount of compensation instead of notice
must equal or exceed the total of all amounts that,
if the employee's employment had continued until
the end of the required period of notice, the
employer would have become liable to pay to the
10 employee because of the employment continuing
during that period.
(5) The total must be worked out on the basis of--
(a) the employee's ordinary hours of work (even
if they are not standard hours); and
15 (b) the amounts payable to the employee in
respect of those hours, including (for
example) allowances, loadings and penalties;
and
(c) any other amounts payable under the
20 employee's contract of employment.
(6) The following employees are excluded from the
operation of this section--
(a) a casual; or
(b) an employee engaged by the hour or day; or
25 (c) an employee engaged for a specific period or
task; or
(d) an employee serving a probationary period--
(i) of 3 months or less; or
(ii) of more than 3 months, if the period
30 was decided before the employment
started and the period is reasonable
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having regard to the nature and
circumstances of the employment.
72. Employer to be given notice of termination
(1) An employee must not terminate his or her
5 employment unless the employer has been given
the period of notice required by this section.
(2) The required period of notice is--
(a) the period of notice required by any relevant
industry sector order or the contract of
10 employment; or
(b) if no period of notice is applicable under
paragraph (a), a period of notice equal to the
employee's usual pay period.
73. Consultation about terminations
15 An employer who has decided to terminate the
employment of one or more employees for
reasons of an economic, technological, structural
or similar nature, or for reasons including such
reasons, as soon as practicable after so deciding
20 and in any event before terminating an employee's
employment pursuant to the decision--
(a) must inform each affected employee about--
(i) the termination and the reasons for it;
and
25 (ii) the number and categories of
employees likely to be affected; and
(iii) the time when the employer intends to
carry out the termination or, if more
than one employee is likely to be
30 affected, the period over which the
employer intends to carry out the
terminations; and
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(b) must give each such employee an
opportunity to consult with the employer
on--
(i) measures to avert the termination or, if
5 more than one employee is likely to be
affected, to avert or minimise the
terminations; and
(ii) measures (such as finding alternative
employment) to mitigate the adverse
10 effects of the termination or, if more
than one employee is likely to be
affected, the terminations.
Division 10--Review of Minimum Conditions
74. Review of minimum conditions
15 A Full Bench may review a minimum condition,
or the minimum conditions, under this Part--
(a) on an application made by--
(i) the Minister; or
(ii) a recognised organisation; or
20 (iii) a peak body; or
(iv) an employee or employer, with the
leave of the Tribunal; or
(b) if the matter of reviewing the minimum
condition, or the minimum conditions, is
25 referred to it by the President.
75. Outcome of review
(1) After reviewing a minimum condition or the
minimum conditions, the Full Bench may by
order--
30 (a) on a review of a minimum condition--
(i) vary the condition; or
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(ii) substitute the condition with another
condition; or
(iii) leave the condition unchanged; and
(b) on a review of the minimum conditions,
5 establish one or more new minimum
conditions--
and may include in the order any matter of an
ancillary or incidental nature.
(2) The Full Bench must not make an order that
10 would result in a condition being less favourable
to employees to whom it applies.
(3) If the Full Bench is of the opinion that any order
made by it under this section makes it necessary
or desirable to review an industry sector order, it
15 must inform the President of that opinion.
76. Tribunal to take certain matters into account
In performing its functions under this Division, a
Full Bench must have regard to--
(a) industrial relations practice and standards
20 throughout Australia;
(b) Australia's international obligations in
relation to labour standards;
(c) changing social arrangements in the
Australian and Victorian communities;
25 (d) any other matter to which it is required to
have regard by any other provision of this
Act or that it considers relevant.
_______________
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s. 77
Act No.
PART 2--INDUSTRY SECTOR ORDERS
Division 1--Introductory
77. Effect of industry sector order
(1) A provision of a contract of employment is of no
5 effect to the extent that it provides a condition of
employment that is less favourable to an employee
than that applicable under a relevant industry
sector order.
(2) An employer must not--
10 (a) enter into, or purport to enter into, a contract
of employment that provides a condition of
employment that is less favourable to the
employee than that applicable under a
relevant industry sector order; or
15 (b) provide a condition of employment to an
employee that is less favourable to the
employee than that applicable under a
relevant industry sector order.
Penalty: 120 penalty units.
20 78. Limit on application of industry sector orders
An industry sector order does not apply to the
employment of--
(a) the holder of an office of department head
under the Parliamentary Officers Act 1975
25 or of the office of Deputy Clerk of the
Legislative Council or Deputy Clerk of the
Legislative Assembly; or
(b) a person holding an office established by or
under an Act to which the right to appoint is
30 vested in the Governor in Council or
Minister, within the meaning of the Public
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Sector Management and Employment Act
1998; or
(c) a member of the police force, police
reservist, police recruit or protective services
5 officer; or
(d) an ineligible employee.
79. Application of industry sector conditions to part-time
employees
(1) Unless the Tribunal otherwise determines in
10 accordance with this Act, the conditions of
employment declared under section 81(1) apply to
part-time employees pro-rata calculated on the
basis that full-time employees work 38 ordinary
hours per week.
15 (2) The calculation required to be made by sub-
section (1) is to be based on--
(a) if the employee works a fixed number of
ordinary hours from week to week, that
number of hours; or
20 (b) if the number of ordinary hours worked by
the employee varies from week to week
according to a regular roster cycle, the
average number of ordinary hours worked
per week over the period of the roster cycle;
25 or
(c) in any other case, the average number of
ordinary hours worked per week over the
previous 12 months, including periods of
authorised leave.
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s. 80
Act No.
Division 2--Making and Variation of Industry Sector
Orders
80. Declaration of industry sectors
A Full Bench may, by order, declare industry
5 sectors, or vary or set aside a declared industry
sector, for the purposes of this Act--
(a) on an application made by--
(i) the Minister; or
(ii) a recognised organisation that is
10 representative of employees or
employers in the industry sector; or
(iii) a peak body; or
(iv) an employee or employer in the
industry sector, with the leave of the
15 Tribunal; or
(b) if the matter of declaring the industry sector,
or varying or setting aside the declared
industry sector, is referred to it by the
President.
20 81. Industry sector conditions
(1) Subject to sub-section (2), a Full Bench may, by
order, declare conditions of employment, or vary
or set aside a declared condition of employment,
in relation to a declared industry sector and may
25 include in the order any matter that is of an
ancillary or incidental nature.
(2) The Full Bench must ensure that the scope and
application of an industry sector order is specified
in the order, for example, the class of employee to
30 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.
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(3) The Full Bench may declare a condition of
employment in relation to any matter including--
(a) remuneration, including rates of pay;
(b) work classifications;
5 (c) allowances, monetary or otherwise;
(d) hours of employment, including the
maximum number of ordinary hours per
week;
(e) overtime;
10 (f) loadings for working non-standard hours or
out of ordinary hours;
(g) loadings in respect of annual leave;
(h) subject to section 82, public holidays;
(i) supported wage system;
15 (j) forms of leave;
(k) redundancy or severance entitlements.
(4) The Full Bench may only exercise a power
conferred by sub-section (1)--
(a) on an application made by--
20 (i) the Minister; or
(ii) a recognised organisation that is
representative of employees or
employers in the declared industry
sector; or
25 (iii) a peak body; or
(iv) an employee or employer in the
declared industry sector, with the leave
of the Tribunal; or
(b) if the matter of declaring the condition of
30 employment, or varying or setting aside the
declared condition of employment, is
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s. 82
Act No.
referred to it by the President, whether
because of information received by him or
her under section 75(3) or for any other
reason.
5 82. Limitation of power in relation to public holidays
(1) The Tribunal may only exercise the power
conferred by section 81(1) in relation to the matter
of public holidays by doing one or more of the
following--
10 (a) if a day or half-day appointed under the
Public Holidays Act 1993 as a public
holiday or public half-holiday in the relevant
place in a particular year falls on a Saturday
or Sunday, substituting another day or half-
15 day as a public holiday in that place in that
year;
(b) declaring a condition in relation to an
entitlement to any payment in respect of a
public holiday;
20 (c) declaring a condition in relation to
entitlements (including entitlement to any
payment) in respect of work performed on a
public holiday.
(2) An industry sector order containing a provision of
25 a kind referred to in sub-section (1) has effect
despite any provision to the contrary made by or
under the Public Holidays Act 1993.
83. Minimum wages
(1) A Full Bench may, by an industry sector order, set
30 and adjust a minimum wage for classes of
employees in a declared industry sector.
Employees may be classified, for this purpose,
according to their category of employment or the
nature of the work performed by them.
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(2) A minimum wage set or adjusted by the Full
Bench is to be expressed as a rate of pay for a
working week of 38 hours, unless the Full Bench
determines otherwise.
5 84. Adoption of National Wage Case decisions
(1) As soon as practicable after the making of a
National Wage Case decision by the Federal
Commission, a Full Bench must give
consideration to the decision and must adopt the
10 principles or provisions of the decision for the
purposes of industry sector orders unless satisfied
that, having regard to the state of the Victorian
economy or for any other good reason, it should
not do so.
15 (2) The Full Bench is to give consideration to the
National Wage Case decision either on its own
initiative or on application by a person or body
eligible to apply for the making of an industry
sector order.
20 (3) The principles or provisions of a National Wage
Case decision may be adopted--
(a) wholly or partly and with or without
modification; and
(b) generally for all industry sector orders or
25 only for particular industry sector orders.
(4) The principles or provisions of a National Wage
Case decision adopted under this section may be
varied by a Full Bench, whether or not another
National Wage Case decision is made.
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s. 85
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Division 3--Equal Remuneration for Work of Equal or
Comparable Value
85. Orders requiring equal remuneration
(1) A Full Bench may make any order that it
5 considers appropriate (including providing for an
increase in rates of remuneration or minimum
wages) to ensure that male and female employees
receive equal remuneration for work of equal or
comparable value.
10 (2) The Full Bench may only exercise the power
conferred by sub-section (1) on an application
made by--
(a) the Minister; or
(b) a recognised organisation that is
15 representative of employees who are, or
would be, covered by the order; or
(c) a peak body; or
(d) an employee who is, or would be, covered by
the order; or
20 (e) the Equal Opportunity Commission under
the Equal Opportunity Act 1995.
(3) The Full Bench may only exercise the power
conferred by sub-section (1) if satisfied that male
and female employees who are, or would be,
25 covered by the order do not receive equal
remuneration for work of equal or comparable
value.
(4) Despite anything to the contrary in sub-section
(1), if the Full Bench is satisfied as referred to in
30 sub-section (3) it must exercise the power
conferred by sub-section (1).
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(5) A provision included in an order under this
section may provide for the introduction of equal
remuneration for work of equal or comparable
value--
5 (a) immediately; or
(b) progressively, in specified stages.
86. Choice of procedure
(1) Subject to this section, nothing in this Division
limits or affects any other right that a person or
10 body may have under this or any other Act to
secure equal remuneration for male and female
employees for work of equal or comparable value.
(2) Once an application is made to the Tribunal under
this Division in respect of an employee or class of
15 employee, a proceeding cannot be commenced
under another provision of this or any other Act to
enforce a right referred to in sub-section (1) in
respect of that employee or class of employee
unless the application to the Tribunal under this
20 Division is withdrawn or struck out for want of
jurisdiction.
(3) Once an application has been commenced under
another provision of this Act or any other Act to
enforce a right referred to in sub-section (1) in
25 respect of an employee or class of employee, an
application cannot be made under this Division in
respect of that employee or class of employee
unless the other proceeding is withdrawn or struck
out for want of jurisdiction.
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s. 87
Act No.
Division 4--Matters to which Tribunal must have Regard
87. Tribunal to have regard to federal awards
(1) When making or varying an industry sector order,
in considering the scope and application of the
5 order the Full Bench must take into account any
award made under the Commonwealth Act that
applies to the employment of any class of
employee who is, or would be, bound by the
order.
10 (2) If--
(a) an award of a kind referred to in sub-section
(1) exists; and
(b) the Full Bench is satisfied that the award
substantially governs the conditions of
15 employment of any class of employee who
is, or would be, bound by the order--
the Full Bench must exclude that class of
employee from the order unless satisfied that such
an exclusion is not in the public interest.
20 88. Tribunal to take certain matters into account
(1) In performing its functions under this Part, a Full
Bench must have regard to--
(a) industrial relations practice and standards
throughout Australia;
25 (b) Australia's international obligations in
relation to labour standards;
(c) changing social arrangements in the
Australian and Victorian communities;
(d) the circumstances of the relevant industry
30 sector or of the relevant class of employee in
the industry sector;
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(e) on making or varying an industry sector
order, whether and under what conditions an
employer who is, or would be, bound by the
order should be entitled to set off overtime
5 payments or loadings for working non-
standard hours or out of ordinary hours that
are or would be payable to an employee
under the order, or the order as varied,
against any amount payable to the employee
10 under the contract of employment that is at
least equivalent to the amount that is or
would be required to be paid to the employee
under any relevant industry sector order,
including the order that is to be made or
15 varied by the Tribunal;
(f) any other matter to which it is required to
have regard by any other provision of this
Act or that it considers relevant.
(2) Without limiting sub-section (1), a Full Bench, in
20 declaring or varying a condition of employment
relating to rates of pay or work classifications,
including setting or adjusting a minimum wage,
must have regard to the wage relativities and work
value principles applied by the Federal
25 Commission.
(3) The objective of the Full Bench acting as required
by sub-section (2) is to ensure consistency, so far
as appropriate, between rates of pay and work
classifications provided for by awards made under
30 the Commonwealth Act and those provided for by
industry sector orders.
_______________
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s. 89
Act No.
PART 3--PAYMENT OF REMUNERATION
89. Employees to be paid in money
(1) Remuneration payable to an employee must be
paid in money and at least once each fortnight or
5 at such other frequency (not exceeding monthly)
as is agreed between the employee and employer.
(2) Payment is made in money only if it is made--
(a) in cash; or
(b) with appropriate authority, by cheque
10 payable to the employee; or
(c) with appropriate authority, by electronic
transfer of funds or other means into an
account in the name of the employee
(whether or not jointly with another person)
15 at an authorised deposit-taking institution
within the meaning of the Banking Act 1959
of the Commonwealth.
(3) For the purposes of sub-section (2) "appropriate
authority" is authority conferred in writing by
20 the employee or authority conferred by a relevant
industry sector order.
(4) An employer must not pay remuneration to an
employee contrary to this section.
Penalty: 120 penalty units.
25 90. Employees to be paid in full
(1) Payment of remuneration to an employee that is
fixed by or under an industry sector order is to be
made in full without any deduction for goods,
board or lodging or any other services supplied by
30 the employer in payment (or part payment) of
remuneration.
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s. 91
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(2) However, an employer can deduct and pay on
behalf of an employee from any remuneration
payable to the employee--
(a) any payments principally for the benefit of
5 the employee that are authorised in writing
by the employee to be deducted and paid; or
(b) any payments that are authorised by a
relevant industry sector order to be deducted
and paid.
10 (3) An employer must not pay remuneration to an
employee contrary to this section.
Penalty: 120 penalty units.
91. Employer not to stipulate how remuneration to be
spent
15 An employer must not, directly or indirectly,
impose as a condition of the employment of an
employee any terms as to the place where or the
manner in which or the person with whom any
remuneration paid to the employee is to be spent.
20 Penalty: 120 penalty units.
92. Unauthorised payments--civil effect
(1) Payment of remuneration to an employee contrary
to this Part is not to be considered to be payment
or part payment of that remuneration, except to
25 the extent (if any) permitted by the Tribunal.
(2) A provision of a contract that provides for
payment of remuneration to an employee in a
manner that is contrary to this Part is void.
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s. 93
Act No.
93. Liability of principal contractor for remuneration
payable to employees of subcontractor
(1) This section applies where--
(a) a person (the "principal contractor") has
5 entered into a contract for the carrying out of
work by another person (the
"subcontractor"); and
(b) employees of that subcontractor are engaged
in carrying out the work (the "relevant
10 employees"); and
(c) the work is carried out in connection with a
business undertaking of the principal
contractor.
(2) The principal contractor is liable for the payment
15 of any remuneration of the relevant employees
that has not been paid for work done in
connection with the contract during any period of
the contract unless the principal contractor has a
written statement given by the subcontractor
20 under this section for that period of the contract.
(3) The principal contractor may withhold any
payment due to the subcontractor under the
contract until the subcontractor gives a written
statement under this section for any period up to
25 the date of the statement. Any penalty for late
payment under the contract does not apply to any
payment withheld under this sub-section.
(4) For the purposes of this section, remuneration
means remuneration or other amounts payable to
30 relevant employees by legislation, or under an
industry sector order, in connection with work
done by the employees.
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s. 94
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(5) The provisions of this Act relating to the recovery
of amounts payable under this Act or an industry
sector order apply to the recovery of remuneration
payable by a principal contractor under this
5 section.
94. Written statements for the purposes of section 93
(1) The written statement referred to in section 93 is a
statement by the subcontractor that all
remuneration payable to relevant employees for
10 work under the contract done during that period
has been paid.
(2) The regulations may make provision for or with
respect to the form of the written statement.
(3) The subcontractor must keep a copy of any
15 written statement under this section for at least 6
years after it was given.
(4) The written statement is not effective to relieve
the principal contractor of liability under section
93 if the principal contractor had, when given the
20 statement, reason to believe it was false.
(5) A subcontractor must not give the principal
contractor a written statement knowing it to be
false.
Penalty: 120 penalty units.
25 95. Operation of section 93
(1) Section 93 does not apply in relation to a contract
if the subcontractor is in receivership or in the
course of being wound up or, in the case of an
individual, is bankrupt and if payments made
30 under the contract are made to the receiver,
liquidator or trustee in bankruptcy.
(2) To avoid doubt, section 93 extends to a principal
contractor who is the owner or occupier of a
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s. 95
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building for the carrying out of work in
connection with the building so long as the
building is owned or occupied by the principal
contractor in connection with a business
5 undertaking of the principal contractor.
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s. 96
Act No.
PART 4--CONTINUITY OF SERVICE AND EMPLOYMENT
96. Definitions
In this Part--
"service" includes employment;
5 "transfer of business" means the transfer,
transmission, conveyance, assignment or
succession, whether by agreement or by
operation of law, of the whole or any part of
a business, undertaking or establishment.
10 97. How this Part applies
(1) This Part applies when working out an employee's
rights and entitlements under this Chapter (other
than Division 8 of Part 1) by prescribing when the
employee's continuity of service is not broken.
15 (2) An employee is not entitled to claim the benefit of
a right or entitlement more than once for the same
period of service.
98. Continuity of service--transfer of business
(1) A "transferred employee" is a person who
20 becomes an employee of an employer (the "new
employer") as a result of the transfer of a
business to the new employer from another
employer (the "former employer").
(2) Even if a person is dismissed by the former
25 employer before the transfer of a business, the
person is taken to be a transferred employee if--
(a) the person is employed by the new employer
after the transfer; and
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s. 99
Act No.
(b) the employee--
(i) was dismissed by the former employer
within 1 month immediately before the
transfer; and
5 (ii) is re-employed by the new employer
within 3 months after the dismissal.
(3) The transfer of the business is taken not to break
the transferred employee's continuity of service.
(4) A period of service with the former employer
10 (including service before the commencement of
this section) is taken to be a period of service with
the new employer.
(5) In this section--
"dismissed" includes stood-down.
15 99. 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
20 (b) the employer--
(i) continues to employ an apprentice or
trainee (the "employer") on the
completion of the apprenticeship or
traineeship; or
25 (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
30 does not break the employee's continuity of
service.
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s. 100
Act No.
100. 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
5 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.
10 (3) An employee's continuity of service with an
employer is not broken by an absence, including
through personal illness or injury--
(a) on paid leave approved by the employer; or
(b) on unpaid leave approved by the employer.
15 (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
personal illness or injury; and
20 (b) the employer re-employs the employee; and
(c) the employee has not been employed in an
industry (whether on the employee's own
account or as an employee) between the
termination and the re-employment.
25 (5) An employee's continuity of service with an
employer is not broken if--
(a) the employment is terminated by the
employer or employee; and
(b) the employer re-employs the employee
30 within 3 months after the termination.
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s. 100
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(6) An employee's continuity of service with an
employer is not broken if--
(a) the employment is interrupted or terminated
by the employer with intent to avoid an
5 obligation under this Chapter or under a
contract of employment; or
(b) the employment is interrupted or terminated
by the employer as a direct or indirect result
of an industrial dispute, and the employer re-
10 employs the employee.
(7) An employee's continuity of service is not broken
if--
(a) the employment is interrupted or terminated
by the employer because of slackness of
15 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.
20 (9) However, a period for which the employee is
away from work under sub-sections (3)(b) to (6) is
not service under this Chapter unless--
(a) this Act provides otherwise; or
(b) the Tribunal directs otherwise.
25 (10) In this section--
"subsidiary" means a corporation that would be
taken to be a subsidiary under the
Corporations Law, whether or not the
Corporations Law applies in a particular
30 case;
"terminate" includes stand-down.
_______________
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s. 101
Act No.
CHAPTER 3
WORKPLACE GRIEVANCES AND OTHER
EMPLOYMENT-RELATED MATTERS
PART 1--WORKPLACE GRIEVANCES
5 Division 1--Applications to Tribunal to Resolve Workplace
Grievances
101. What is a workplace grievance?
(1) A workplace grievance is a grievance or dispute--
(a) between an employee employed under a
10 contract of service and his or her employer
relating to--
(i) the application to the employee of a
minimum condition; or
(ii) the application to the employee of an
15 industry sector order; or
(iii) non-payment of remuneration or non-
provision of any other entitlements
under the contract of service; or
(iv) subject to sub-section (3), any other
20 aspect of the employment relationship;
or
(b) between a person engaged to perform work
under a contract for services and the person
for whom, or on whose behalf, the work is
25 performed relating to--
(i) non-payment of remuneration or non-
provision of any other entitlements
under the contract for services; or
(ii) the fairness of the contract for services.
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(2) A workplace grievance referred to in sub-section
(1)(a)(iii) includes a grievance between a relevant
employee and a principal contractor (within the
meaning of section 93) in respect of remuneration
5 for which the principal contractor is liable to pay
the employee under section 93 and, for the
purposes of this Part, the principal contractor is to
be taken to be the employer of the relevant
employee.
10 (3) A workplace grievance does not include a
grievance or dispute relating to the termination of
a contract of service, except as provided in sub-
section (1)(a)(i), (ii) or (iii).
102. Who may apply to the Tribunal to resolve a workplace
15 grievance?
(1) An application to the Tribunal to resolve a
workplace grievance between an employee and an
employer may be made by--
(a) the employee; or
20 (b) a parent or guardian of the employee if the
employee is under the age of 18; or
(c) a recognised organisation of which the
employee is a member; or
(d) the employer; or
25 (e) a recognised organisation of which the
employer is a member.
(2) An application to the Tribunal to resolve a
workplace grievance (other than a grievance of a
kind referred to in section 101(1)(a)(i) or (b))
30 cannot be made by or on behalf of--
(a) the holder of an office of department head
under the Parliamentary Officers Act 1975
or of the office of Deputy Clerk of the
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s. 103
Act No.
Legislative Council or Deputy Clerk of the
Legislative Assembly; or
(b) a person holding an office established by or
under an Act to which the right to appoint is
5 vested in the Governor in Council or
Minister, within the meaning of the Public
Sector Management and Employment Act
1998; or
(c) a member of the police force, police
10 reservist, police recruit or protective services
officer; or
(d) an ineligible employee.
103. When can an application be made?
(1) An application to the Tribunal to resolve a
15 workplace grievance of a kind referred to in
section 101(1)(a)(iii) or 101(1)(b)(i) must be made
within 6 years after the time at which the
remuneration became payable or the other
entitlement arose.
20 (2) Subject to section 105, an application in respect of
any other kind of workplace grievance may be
made at any time.
104. Representative proceedings
(1) If workplace grievances involving a common
25 issue exist between employees and the same
employer at the same workplace, one or more of
the employees may apply to the Tribunal to
conduct a representative proceeding in respect of
the workplace grievances.
30 (2) If the Tribunal conducts a representative
proceeding, any decision or order made in the
proceeding binds--
(a) the employees who applied for the
proceeding; and
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(b) any other employees on whose behalf the
application was made, if those employees
consented to the application or the
proceeding before the decision or order was
5 made.
(3) If a representative proceeding has been
commenced, an employee on whose behalf it was
made may apply to the Tribunal for his or her
identity to remain confidential.
10 (4) On an application under sub-section (3), the
Tribunal may order that any information that
might enable the employee to be identified must
not be published or broadcast, if the Tribunal
considers the order is necessary to avoid prejudice
15 to the employee or to any other employee to
whom the application relates.
105. Tribunal may refuse to entertain grievances if the
parties have not attempted to resolve them
(1) The Tribunal may refuse to entertain an
20 application to resolve a workplace grievance if the
Tribunal considers that the parties have not made
a genuine attempt to resolve the grievance.
(2) For that purpose, the Tribunal is to take into
account whether or not the parties have complied
25 with the grievance code of practice.
(3) In this section--
"grievance code of practice" means--
(a) the grievance code of practice provided
in the rules; or
30 (b) until the rules provide a grievance code
of practice--the interim grievance code
of practice set out in Schedule 1.
Division 2--Role of Tribunal in respect of Workplace
Grievances
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106. Conciliation and mediation
(1) The Tribunal must refer a workplace grievance
that is the subject of an application under
Division 1 for conciliation or mediation under
5 Division 5 of Part 3 of Chapter 4, unless--
(a) the Tribunal is satisfied that conciliation or
mediation would not assist the resolution of
the grievance; or
(b) the Tribunal refuses to entertain the
10 application under section 105; or
(c) the Tribunal dismisses the application under
section 150.
(2) If the Tribunal does not refer a workplace
grievance for conciliation or mediation, the
15 Tribunal must inform the parties of the reasons for
not doing so.
107. Powers to resolve workplace grievances
(1) If the Tribunal does not refer a workplace
grievance for conciliation or mediation or if
20 conciliation or mediation is unsuccessful, the
Tribunal must hear and resolve the grievance.
(2) The Tribunal may do any one or more of the
following to resolve a workplace grievance--
(a) make a decision as to the entitlements of an
25 employee under the minimum conditions or
an industry sector order;
(b) order the payment to an employee of an
amount found owing to the employee by way
of remuneration;
30 (c) order the payment to an employee of an
amount to compensate the employee for the
non-provision of any other entitlement to the
employee under a contract of service or
contract for services;
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(d) order the payment of interest in respect of an
amount ordered under paragraph (b) or (c);
(e) subject to section 108, make any other
decision or order the Tribunal considers
5 necessary to resolve the grievance.
(3) The Tribunal cannot make an order under sub-
section (2) for the payment of an amount
(excluding interest) to an employee that exceeds
$20 000 or that amount as indexed under
10 section 11.
(4) In making an order for the payment of interest, the
Tribunal may base the amount of interest on the
interest rate fixed from time to time under
section 2 of the Penalty Interest Rates Act 1983
15 or on any lesser rate it thinks appropriate.
(5) This section does not apply if the Tribunal--
(a) refuses to entertain the application in respect
of the workplace grievance under
section 105; or
20 (b) dismisses the application under section 150.
108. Powers in relation to unfair contracts
(1) This section applies if the subject matter of a
workplace grievance involves an unfair contract.
(2) An unfair contract is a contract for services that
25 the Tribunal considers--
(a) is, or contains a term that is, harsh,
unconscionable or unfair; or
(b) is, or contains a term that is, contrary to the
public interest; or
30 (c) provides, or has provided, a total
remuneration to the person performing work
under the contract that is less than he or she
would have been entitled to under this Act,
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an industry sector order or an industrial
instrument if he or she performed the work
under a contract of service.
(3) A contract may be an unfair contract whether or
5 not it was an unfair contract at the time it was
entered into.
(4) In resolving a workplace grievance, the Tribunal
may make--
(a) an order declaring void an unfair contract in
10 whole or part or otherwise varying an unfair
contract; and
(b) if an order is made under paragraph (a)--a
further order requiring the payment of an
amount by a person in connection with the
15 unfair contract, being an amount the
Tribunal considers just in the circumstances
of the case.
(5) In deciding whether to make an order under this
section, the Tribunal may consider--
20 (a) the relative bargaining powers of the parties
to the contract and, if applicable, anyone
acting for the parties;
(b) whether any undue influence or pressure was
exerted on, or any unfair tactics were used
25 against, a party to the contract;
(c) anything else the Tribunal considers
relevant.
109. Exclusion of fair trading jurisdiction in respect of
unfair contracts
30 Once an application is made to the Tribunal to
resolve a workplace grievance by declaring void
or otherwise varying an unfair contract, the
Victorian Civil and Administrative Tribunal does
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not have jurisdiction to make an order under
section 109 of the Fair Trading Act 1999 in
respect of that contract, unless--
(a) proceedings in respect of the contract were
5 commenced under that Act before the
application to the Tribunal was made and
those proceedings are still pending; or
(b) the application to the Tribunal is withdrawn
or struck out for want of jurisdiction.
10 _______________
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PART 2--OTHER EMPLOYMENT-RELATED MATTERS
Division 1--Entitlements of Former Employees3
110. Application to recover amounts owing or for
compensation for entitlements not provided
5 (1) Any of the persons referred to in sub-section (2)
may apply to the Tribunal for--
(a) the recovery of an amount owing to a former
employee by his or her former employer in
respect of remuneration; or
10 (b) an order for the payment to a former
employee of an amount to compensate him
or her for the non-provision of any other
entitlement under the relevant contract of
service or contract for services.
15 (2) The persons who may apply are--
(a) the former employee; or
(b) a parent or guardian of the former employee
if the former employee is under the age of
18; or
20 (c) a person authorised by the former employee
to make the application on his or her behalf;
or
(d) a recognised organisation of which the
former employee is a member; or
25 (e) an information services officer.
(3) The application must be made within 6 years after
the time at which the remuneration became
payable or the other entitlement arose.
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111. Tribunal may order payment and interest
(1) On an application under section 110, the
Tribunal--
(a) in the case of an application under
5 section 110(1)(a)--may order the payment to
the former employee of an amount found
owing to him or her by way of remuneration;
(b) in the case of an application under
section 110(1)(b)--may order the payment
10 to the former employee of an amount to
compensate him or her for the non-provision
of any other entitlement under the relevant
contract of service or contract for services;
(c) in either case--may order the payment of
15 interest in respect of an amount ordered
under paragraph (a) or (b).
(2) The Tribunal cannot make an order under sub-
section (1) for the payment of an amount
(excluding interest) to a former employee that
20 exceeds $20 000 or that amount as indexed under
section 11.
(3) In making an order for the payment of interest, the
Tribunal may base the amount of interest on the
interest rate fixed from time to time under
25 section 2 of the Penalty Interest Rates Act 1983
or on any lesser rate it thinks appropriate.
Division 2--Inquiries
112. Inquiries
(1) The Tribunal may hold an inquiry into or about
30 any matter pertaining to the relationship between
persons who perform work and persons for whom,
or on whose behalf, work is performed.
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(2) An inquiry may be held--
(a) on the application of a person who is entitled
to apply to vary a minimum condition; or
(b) at the request of the Minister.
5 (3) The Tribunal may report the result of an inquiry,
including any findings or recommendations, in the
manner, and to the persons, the Tribunal considers
appropriate.
113. Procedure on an inquiry
10 For the purposes of an inquiry, the Tribunal may
regulate its own procedure.
Division 3--Conciliation and Mediation of Industrial
Disputes
114. Conciliation and mediation of industrial disputes
15 (1) The Tribunal may provide conciliation and
mediation services, on any terms it considers
appropriate, to the parties to any industrial dispute
that does not form the subject matter of a
proceeding in the Tribunal.
20 (2) For the purposes of this section, it does not matter
whether or not the Tribunal has jurisdiction to
entertain the subject matter of the industrial
dispute under this Act (other than under this
section).
25 _______________
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CHAPTER 4
FAIR EMPLOYMENT TRIBUNAL
PART 1--THE TRIBUNAL
Division 1--Establishment and Membership
5 115. Establishment of Tribunal
(1) The Fair Employment Tribunal is established.
(2) The Tribunal must have an official seal, which is
to be kept in such custody as the Tribunal directs
and is only to be used as authorised by the
10 Tribunal.
116. Membership
(1) The members of the Tribunal are--
(a) a President; and
(b) as many Vice Presidents and Commissioners
15 as are necessary for the proper functioning of
the Tribunal.
(2) Members are appointed by the Governor in
Council on the recommendation of the Minister.
(3) The Public Sector Management and
20 Employment Act 1998 does not apply to a
member in respect of the office of member.
117. Qualifications for appointment--President
(1) A person may be appointed as President if he or
she--
25 (a) has the formal qualifications specified in
sub-section (2); and
(b) in the Minister's opinion is a suitable person
to be appointed as President because of his
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or her skills and experience in the field of
industrial relations.
(2) The formal qualifications for appointment of a
person as President are that he or she--
5 (a) is or has been a judge of the Supreme Court
or the County Court; or
(b) has been a judge of a court created by the
Parliament of the Commonwealth; or
(c) is a lawyer.
10 118. Qualifications for appointment--Vice Presidents
(1) A person may be appointed as a Vice President if
he or she--
(a) has the formal qualifications specified in
sub-section (2); and
15 (b) in the Minister's opinion is a suitable person
to be appointed as a Vice President because
of his or her skills and experience in the field
of industrial relations.
(2) The formal qualifications for appointment of a
20 person as a Vice President are that he or she--
(a) is or has been a judge of the Supreme Court
or the County Court; or
(b) has been a judge of a court created by the
Parliament of the Commonwealth; or
25 (c) is a lawyer; or
(d) is a person who, in the Minister's opinion,
has had experience at a high level in industry
or commerce; or
(e) is a person who, in the Minister's opinion,
30 has had experience at a high level in the
service of--
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(i) a peak body or other association
representing the interests of employers
or employees; or
(ii) the State or a public statutory authority;
5 or
(f) is a person who has, at least 5 years before
the date of his or her appointment, obtained a
tertiary qualification in the field of law,
economics or industrial relations or in
10 another field that, in the Minister's opinion,
has substantial relevance to the duties of
Vice President.
119. Qualifications for appointment--Commissioners
A person may be appointed as a Commissioner if,
15 in the Minister's opinion, the person is a suitable
person to be appointed as a Commissioner
because of the person's skills and experience in
the field of industrial relations.
120. Appointment of judge does not affect tenure etc.
20 (1) The appointment of a judge of the Supreme Court
or the County Court as President or a Vice
President does not affect his or her tenure of office
or status as a judge nor the payment of his or her
salary or allowances as a judge nor any other
25 rights or privileges that he or she has as a judge.
(2) Service by a judge of the Supreme Court or the
County Court in the office of President or a Vice
President must be taken for all purposes to be
service in the office of judge of the Supreme
30 Court or the County Court (as the case requires).
(3) Nothing in this Act prevents a judge of the
Supreme Court or the County Court appointed as
the President or a Vice President from constituting
the Supreme Court or the County Court (as the
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case requires) for the purpose of the exercise by
that Court of any of its functions.
(4) In this section--
(a) a reference to appointment as President or a
5 Vice President includes a reference to
appointment as acting President or an acting
Vice President;
(b) a reference to service in the office of
President or a Vice President includes a
10 reference to service in the office of acting
President or an acting Vice President.
121. Full-time and part-time appointments
(1) Presidential members are to be appointed on a
full-time basis.
15 (2) A Commissioner may be appointed on a full-time
or part-time basis.
(3) A member appointed on a full-time basis may
perform his or her duties as member on a part-
time basis, with the consent of--
20 (a) the Minister, in the case of the President; or
(b) the President, in any other case.
122. Outside employment
(1) A member who is appointed on a full-time basis
must not engage in the practice of any profession
25 or in any paid employment (whether within or
outside Victoria) outside the duties of his or her
office, unless--
(a) in the case of the President--the Minister
consents;
30 (b) in any other case--the President consents.
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(2) A member who is appointed on a part-time basis
must not, without the consent of the President,
engage in the practice of any profession or in any
paid employment (whether within or outside
5 Victoria) that may--
(a) conflict with the performance of his or her
duties as member; or
(b) raise a reasonable apprehension of bias in the
performance of those duties.
10 (3) Sub-section (2) does not operate to prevent a part-
time member continuing to engage in the practice
of a profession or in paid employment in which
the member engaged immediately before his or
her appointment.
15 (4) The Minister or the President, as the case requires,
may attach any conditions to his or her consent
under this section, and those conditions must be
observed by the member concerned.
123. Term of appointment
20 (1) Subject to this section, a member holds office
until he or she reaches the age of 70 years.
(2) A member ceases to hold office if he or she--
(a) resigns in accordance with section 126; or
(b) becomes an insolvent under administration;
25 or
(c) is removed from office in accordance with
section 127 or 128.
(3) Despite sub-section (2)(a), if a member resigns
while investigating or hearing a matter, the
30 Governor in Council may, without reappointing
the person as a member, continue the person in
office for the time necessary to enable the
investigation or hearing to be completed.
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(4) The person continuing in office may perform the
duties and exercise the powers necessary or
convenient for the investigation or hearing to be
completed.
5 124. Remuneration and allowances
(1) A member (other than a member who is a judge of
the Supreme Court or County Court) is entitled to
receive the remuneration and allowances that are
fixed from time to time by the Governor in
10 Council.
(2) The Governor in Council may fix different
remuneration and allowances for different classes
of members.
(3) For the purposes of sub-section (2), the Governor
15 in Council may determine the classes of members
in any manner the Governor in Council thinks fit.
125. Disclosure of interests
(1) This section applies to a member who constitutes,
or is to constitute, the Tribunal for the purposes of
20 a particular proceeding, whether with or without
others, and who has or acquires an interest,
pecuniary or otherwise, that could conflict with
the proper performance of the member's functions
in relation to that proceeding.
25 (2) The member--
(a) must disclose the nature of the interest to the
parties to the proceeding; and
(b) unless all the parties consent--must not take
part in the proceeding or exercise any
30 powers in relation to it.
(3) If the President becomes aware that, for the
purposes of a proceeding, the Tribunal is
constituted by, or includes, a member who has or
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acquires an interest, pecuniary or otherwise, that
could conflict with the proper performance of the
member's functions in relation to that
proceeding--
5 (a) if the President considers that the member
should not take part, or should not continue
to take part, in the proceeding--the president
must give a direction to the member
accordingly; or
10 (b) in any other case--the President must cause
the interest of the member to be disclosed to
the parties to the proceeding and the member
must not take part in the proceeding or
exercise any powers in relation to the
15 proceeding unless all the parties consent.
126. Resignation
A member may resign his or her office as member
by delivering to the Governor a signed letter of
resignation.
20 127. Removal from office--presidential members
The Governor in Council may remove a
presidential member from office--
(a) on presentation of an address from each
House of the Parliament praying for the
25 member's removal from office on the ground
of proven misbehaviour or incapacity; or
(b) if the member is absent from duty, for at
least 14 consecutive days or for at least 28
days in any year, without the consent--
30 (i) of the Minister, in the case of the
President;
(ii) of the President, in the case of a Vice
President; or
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(c) if the member engages in the practice of a
profession or in paid employment outside the
duties of office in contravention of section
122 or does not comply with a condition
5 referred to in section 122(4).
128. Removal from office--Commissioners
The Governor in Council may remove a
Commissioner from office--
(a) on the recommendation of the Minister under
10 section 130(4); or
(b) if the Commissioner is absent from duty,
without the consent of the President, for at
least 14 consecutive days or for at least
28 days in any year; or
15 (c) if the Commissioner engages in the practice
of a profession or in paid employment
outside the duties of office in contravention
of section 122 or does not comply with a
condition referred to in section 122(4).
20 129. Suspension of Commissioner
(1) The Minister, with the approval of the President,
may suspend a Commissioner from office, if the
Minister believes that there may be grounds for
removal of the member from office.
25 (2) A suspended Commissioner remains entitled to
his or her remuneration and allowances as
Commissioner during the period of suspension.
130. Investigation of Commissioner
(1) As soon as practicable after suspending a
30 Commissioner from office under section 129, the
Minister must appoint a person nominated by the
President to undertake an investigation into the
Commissioner's conduct.
(2) A person appointed under sub-section (1) must--
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(a) investigate the Commissioner's conduct; and
(b) report to the Minister on the investigation;
and
(c) give a copy of the report to the
5 Commissioner and the President.
(3) A report under sub-section (2)(b) may include a
recommendation that the Commissioner be
removed from office.
(4) After receiving a report under sub-section (2)(b)
10 recommending removal, the Minister, after
consulting the President, may recommend to the
Governor in Council that the Commissioner be
removed from office.
(5) The person who conducted the investigation and
15 the Minister may only recommend that a
Commissioner be removed if satisfied that the
Commissioner--
(a) has been convicted of an indictable offence
or an offence that, if committed in Victoria,
20 would be an indictable offence; or
(b) has become incapable of performing, or has
neglected to perform, the duties of office; or
(c) is unfit to hold office because of misconduct.
(6) The Minister must not make a recommendation
25 under sub-section (4) unless the Commissioner
has been given a reasonable opportunity to make
written and oral submissions to the person who
conducted the investigation and the President.
(7) In making a recommendation under sub-section
30 (4), the Minister is entitled to rely on any findings
contained in the report under sub-section (2).
(8) If the Minister decides not to make a
recommendation under sub-section (4), he or she
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must lift the suspension as soon as practicable
after receiving the report under sub-section (2)(b).
131. Validity of proceedings
A decision of the Tribunal is not invalid only
5 because--
(a) of a vacancy in the office of a member; or
(b) of a defect or irregularity in, or in connection
with, the appointment of a member or acting
member; or
10 (c) in the case of a person appointed to act as
President or a Vice President, the occasion
for so acting had not arisen or had ceased.
Division 2--Acting Appointments
132. Acting President
15 (1) If there is a vacancy in the office of President or
the President is absent or, for any other reason, is
unable to perform the duties of office, a Vice
President may be appointed as acting President in
accordance with this section.
20 (2) The appointment of an acting President may be
made by the Minister, for a term not exceeding
3 months, or by the Governor in Council, for a
term not exceeding 6 months.
(3) A Vice President appointed as acting President--
25 (a) has all the powers and must perform all the
duties of the President; and
(b) if not a judge of the Supreme Court or
County Court, is entitled to be paid the
remuneration and allowances for the time
30 being payable to the President; and
(c) may resign the acting appointment by
delivering to the Minister or the Governor,
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as the case requires, a signed letter of
resignation; and
(d) is eligible for re-appointment (however, a
person appointed as acting President by the
5 Minister may only be re-appointed by the
Governor in Council).
(4) The Minister or the Governor in Council, as the
case requires, may at any time terminate an acting
appointment.
10 133. Acting Vice Presidents
(1) If a Vice President is absent or, for any other
reason, is unable to perform the duties of office, a
person who is qualified to be appointed as Vice
President (as the case requires) may be appointed
15 as an acting Vice President in accordance with
this section.
(2) The appointment of an acting Vice President may
be made by the Minister, for a term not exceeding
3 months, or by the Governor in Council, for a
20 term not exceeding 6 months.
(3) A person appointed as an acting Vice President--
(a) has all the powers and must perform all the
duties of the Vice President for whom he or
she is acting; and
25 (b) may resign the acting appointment by
delivering to the Minister or the Governor,
as the case requires, a signed letter of
resignation; and
(c) is eligible for re-appointment (however, a
30 person appointed as an acting Vice President
by the Minister may only be re-appointed by
the Governor in Council).
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(4) The Minister or the Governor in Council, as the
case requires, may at any time terminate an acting
appointment.
Division 3--Administrative Functions
5 134. Administration of Tribunal's business
(1) Subject to this Act and the rules, the President is
to direct the business of the Tribunal.
(2) The President is responsible for the management
of the administrative affairs of the Tribunal and
10 for directing the professional development and
training of members.
(3) The President may determine the places and times
for sittings of the Tribunal.
(4) The Vice Presidents must assist the President in
15 performing his or her functions under this section.
135. President to advise Minister
It is a function of the President to advise the
Minister with respect to any action that the
President considers would lead to--
20 (a) the more convenient, economic and efficient
disposal of the business of the Tribunal;
(b) the avoidance of delay in the hearing of
proceedings;
(c) this Act being rendered more effective.
25 136. Delegation by President
The President may delegate by instrument to a
Vice President any power of the President under
this Act or the rules, other than this power of
delegation.
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137. Annual report
(1) As soon as practicable in each year but not later
than 30 September, the Tribunal must submit to
the Minister a report containing--
5 (a) a review of the operation of the Tribunal
during the 12 months ending on the
preceding 30 June; and
(b) proposals for improving the operation of,
and forecasts of the workload of, the
10 Tribunal in the following 12 month period.
(2) The Minister must cause each report under sub-
section (1) to be laid before each House of the
Parliament within 14 sitting days of that House
after it is received by the Minister.
15 Division 4--Fair Employment Registry
138. Establishment of registry
(1) The Fair Employment Registry is established.
(2) The registry consists of--
(a) a Fair Employment Registrar; and
20 (b) as many deputy registrars and other staff as
are necessary for the proper functioning of
the registry.
139. Functions of registry
The functions of the registry are--
25 (a) to act as registry of the Tribunal;
(b) to provide administrative support to the
Tribunal;
(c) any other functions conferred on the registry
by or under this or any other Act.
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140. Fair Employment Registrar
(1) The Fair Employment Registrar is to be appointed
by the Governor in Council for the term, and on
the other terms and conditions, determined by the
5 Governor in Council and specified in the
instrument of appointment.
(2) The registrar is entitled to receive the
remuneration and allowances that are fixed from
time to time by the Governor in Council.
10 (3) The Public Sector Management and
Employment Act 1998 does not apply to the
registrar in respect of the office of registrar.
(4) The Governor in Council may remove the
registrar from office if the registrar--
15 (a) is guilty of misconduct of a kind that, if the
registrar were a non-executive employee
within the meaning of the Public Sector
Management and Employment Act 19984,
would warrant the termination of the
20 registrar's employment under that Act; or
(b) is absent from duty, without leave of the
Minister or reasonable excuse, for at least
14 consecutive days or at least 28 days in
any year; or
25 (c) is convicted of an indictable offence or an
offence that, if committed in Victoria, would
be an indictable offence; or
(d) engages in paid employment outside the
duties of his or her office without the consent
30 of the Minister; or
(e) becomes incapable of performing the
functions of the office.
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(5) The registrar may resign his or her office as
registrar by delivering to the Governor a signed
letter of resignation.
141. Functions of registrar
5 (1) The registrar--
(a) is responsible for administering the registry;
and
(b) has the other functions conferred on him or
her by or under this or any other Act.
10 (2) The registrar has the power to do all things
necessary or convenient to be done to perform his
or her functions.
(3) In performing functions and exercising powers,
the registrar is subject to the direction of the
15 President.
142. Deputy registrars and other staff
(1) Deputy registrars and other staff of the registry are
to be employed under the Public Sector
Management and Employment Act 1998.
20 (2) A deputy registrar has, subject to the direction of
the registrar, all the functions and powers of the
registrar.
143. Register of proceedings
(1) The registrar must keep a register of proceedings
25 containing the matters required by the rules.
(2) The registrar must ensure that the register is
available for inspection at any time that the
registry is open for business.
(3) A party to a proceeding may inspect without
30 charge that part of the register that relates to the
proceeding.
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(4) On paying the prescribed fee (if any) any person
may--
(a) inspect the register; and
(b) obtain a copy of any part of the register.
5 (5) The rights conferred by this section are subject
to--
(a) any conditions specified in the rules; and
(b) any contrary order of the Tribunal.
144. Registrar's certificate
10 (1) A certificate as to any matter relating to the
contents of the register kept under section 143 and
purporting to be signed by the registrar or a
deputy registrar is admissible in any proceeding
before a court, tribunal or person acting judicially
15 as evidence of the matter certified.
(2) Subject to any contrary order of the Tribunal, the
registrar must supply such a certificate to any
person who asks for it and who pays the
prescribed fee (if any).
20 145. Proceeding files
(1) The registrar must keep a file of all documents
lodged in a proceeding until the expiration of the
period of 5 years after the final determination of
the proceeding.
25 (2) A party in a proceeding may inspect the file of
that proceeding without charge.
(3) On paying the prescribed fee (if any) any person
may--
(a) inspect the file in that proceeding; and
30 (b) obtain a copy of any part of the file.
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(4) The rights conferred by this section are subject
to--
(a) any conditions specified in the rules;
(b) any direction or order of the Tribunal to the
5 contrary.
Division 5--General
146. Judicial notice
(1) All courts must take judicial notice of--
(a) the signature of a person who is, or was, a
10 member of the Tribunal, the registrar or a
deputy registrar; and
(b) the fact that a person referred to in paragraph
(a) is or was a member, the registrar or a
deputy registrar; and
15 (c) the official seal of the Tribunal affixed to a
document.
(2) If the official seal of the Tribunal is affixed to a
document, a court must presume that it was
properly affixed until the contrary is proved.
20 147. Immunity of participants
(1) A member of the Tribunal has, in the performance
of his or her functions as member, the same
protection and immunity as a judge of the
Supreme Court has in the performance of his or
25 her duties as judge.
(2) A person representing a party in a proceeding has
the same protection and immunity as a lawyer has
in representing a party in proceedings in the
Supreme Court.
30 (3) A party to a proceeding has the same protection
and immunity as a party to proceedings in the
Supreme Court.
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(4) A person appearing as a witness before the
Tribunal has the same protection and immunity as
a witness has in proceedings in the Supreme
Court.
5 (5) A person taking evidence on behalf of the
Tribunal under section 183 has, in the
performance of his or her functions under that
section, the same protection and immunity as a
member of the Tribunal.
10 (6) An expert has, in the performance of his or her
functions under section 176, the same protection
and immunity as a member of the Tribunal.
(7) The registrar or a deputy registrar--
(a) has, in performing functions under section
15 186(1) (assessment or settlement of costs),
the same protection and immunity as the
Taxing Master of the Supreme Court has in
respect of the assessment or settlement of
bills of costs; and
20 (b) has, in exercising the powers of the Tribunal
as permitted by this Act and in performing
functions under section 164 (rejection of
applications) or 168 (compulsory
conferences), the same protection and
25 immunity as a member of the Tribunal.
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PART 2--GENERAL FUNCTIONS AND POWERS OF
TRIBUNAL
148. Functions and powers of Tribunal
(1) The Tribunal has the functions and powers
5 conferred by or under this or any other Act.
(2) The Tribunal must perform its functions and
exercise its powers in a way that furthers the
objects of this Act.
149. Directions
10 (1) The Tribunal may give directions at any time in a
proceeding and do whatever is necessary for the
expeditious or fair hearing and determination of a
proceeding.
(2) The Tribunal's power to give directions is
15 exercisable by any member.
150. Dismissal of unjustified proceedings
The Tribunal may dismiss a proceeding or any
part of it or refrain from hearing, further hearing
or deciding a proceeding, if the Tribunal considers
20 that--
(a) the proceeding is frivolous, vexatious,
misconceived or lacking in substance or
otherwise an abuse of process; or
(b) further action by the Tribunal in respect of
25 the proceeding is not necessary or desirable
in the public interest.
151. Power to amend documents
(1) At any time, the Tribunal may order that any
document in a proceeding be amended.
30 (2) An order under sub-section (1) may be made on
the application of a party or on the Tribunal's own
initiative.
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152. Extension or abridgment of time and waiver of
compliance
(1) The Tribunal, on application by any person or on
its own initiative, may extend any time limit fixed
5 by or under this Act, the regulations or the rules
for the commencement of a proceeding.
(2) If the rules permit, the Tribunal, on application by
a party or on its own initiative, may--
(a) extend or abridge any time limit fixed by or
10 under this Act, the regulations or the rules
for the doing of any act in a proceeding; or
(b) waive compliance with any procedural
requirement, other than a time limit that the
Tribunal does not have power to extend or
15 abridge.
(3) The Tribunal may extend time or waive
compliance under this section even if the time or
period for compliance had expired before an
application for extension or waiver was made.
20 153. Power of entry and inspection
(1) A tribunal official may exercise a power under
this section only if a member of the Tribunal or
the registrar considers it necessary to do so for the
purposes of, or in connection with--
25 (a) a proceeding in the Tribunal; or
(b) the exercise of any other powers or the
performance of any other functions under
this Act.
(2) A tribunal official may, during working hours--
30 (a) enter a workplace; and
(b) inspect any work, material, machinery,
appliance, article, facility or other thing in or
on the workplace; and
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(c) interview a person in or on the workplace
about a matter relevant to the Tribunal's
concern with the workplace.
(3) A person must not--
5 (a) refuse or unduly delay a tribunal official's
entry to a workplace; or
(b) fail, without reasonable excuse, to answer a
question about a matter specified in sub-
section (1); or
10 (c) wilfully give false information or make a
false statement to a tribunal official.
Penalty: 60 penalty units
(4) A member of the Tribunal or the registrar may, by
instrument, authorise a member of staff of the
15 registry or another person who is not an officer or
employee of a recognised organisation to exercise
powers under sub-section (1).
(5) A person authorised under sub-section (4) may
exercise powers under sub-section (1) only to the
20 extent and for the purposes specified in the
instrument of authorisation.
(6) In this section--
"tribunal official" means--
(a) a member of the Tribunal;
25 (b) the registrar;
(c) a person authorised under
sub-section (4).
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PART 3--GENERAL PROCEDURE OF TRIBUNAL
Division 1--Introduction
154. General requirement to act fairly and in the public
interest
5 (1) The Tribunal must act fairly and according to the
substantial merits of the case in all proceedings,
having regard to the interests of--
(a) the parties and any other persons
immediately concerned in the proceeding;
10 and
(b) the community as a whole.
(2) In making a decision or order, the Tribunal must
consider the public interest and, to that end, must
consider--
15 (a) the objects of this Act; and
(b) the likely effect of the decision or order on--
(i) the community as a whole; and
(ii) the local community; and
(iii) the Victorian economy; and
20 (iv) industry generally; and
(v) the particular industry concerned.
155. General procedure
(1) The Tribunal--
(a) is bound by the rules of natural justice;
25 (b) is not bound by the rules of evidence or any
practices or procedures applicable to courts
of record, except to the extent that it adopts
those rules, practices or procedures;
(c) may inform itself on any matter as it sees fit;
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(d) must conduct each proceeding with as little
formality and technicality, and determine
each proceeding with as much speed, as the
requirements of this Act and a proper
5 consideration of the matters before it permit.
(2) Without limiting sub-section (1)(b), the Tribunal
may admit into evidence the contents of any
document despite the non-compliance with any
time limit or other requirement specified in the
10 rules in relation to that document or service of it.
(3) Subject to this Act, the regulations and the rules,
the Tribunal may regulate its own procedure.
(4) Sub-section (1)(a) does not apply to the extent that
this Act authorises, whether expressly or by
15 implication, a departure from the rules of natural
justice.
Division 2--Parties and Representation
156. Joinder of parties
(1) The Tribunal may order that a person be joined as
20 a party to a proceeding if the Tribunal considers
that--
(a) the person ought to be bound by, or have the
benefit of, a decision or order of the Tribunal
in the proceeding; or
25 (b) the person's interests are affected by the
proceeding; or
(c) for any other reason it is desirable that the
person be joined as a party.
(2) The Tribunal may make an order under sub-
30 section (1) on its own initiative or on the
application of any person.
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157. Representation of parties
(1) In any proceeding a party or a person summoned
or otherwise required to appear--
(a) may appear personally; or
5 (b) if a body (whether incorporated or not), may
be represented by an officer, member or
employee of the body; or
(c) may be represented by--
(i) a member, officer or employee of a
10 recognised organisation of which the
party or person is a member; or
(ii) an officer or employee of a peak body
to which the party or person is
affiliated; or
15 (iii) an officer or employee of a peak body
to which a recognised organisation of
which the party or person is a member
is affiliated; or
(d) may be represented by a lawyer or other
20 representative in the circumstances set out in
sub-section (2).
(2) A party or person may be represented by a lawyer
or other representative only if--
(a) all the parties to the proceeding agree; or
25 (b) on application by the party or person, the
Tribunal is satisfied, having regard to the
subject matter of the proceeding, that there
are special circumstances that make it
desirable for them to be represented.
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(3) For the purposes of sub-section (2)(b), the
Tribunal may take into account, among other
things--
(a) the amount claimed in the proceeding (if
5 any);
(b) the nature and complexity of the subject
matter;
(c) the nature of the evidence to be adduced;
(d) the cross-examination likely to be required;
10 (e) the capacity of the party or person to
represent themselves;
(f) any questions of law likely to arise;
(g) the likely effect of allowing legal
representation on the duration and cost of the
15 proceeding.
158. Interpreters
Unless the Tribunal directs otherwise, a party may
be assisted in a proceeding by an interpreter or
another person necessary or desirable to make the
20 proceeding intelligible to that party.
Division 3--Constitution of Tribunal
159. Constitution of Tribunal in proceedings
(1) If a proceeding is required or permitted to be
heard by a Full Bench, the Tribunal is to be
25 constituted by 3 or more members of the Tribunal,
at least one of whom is a presidential member.
(2) In any other case, the Tribunal is to be constituted
by a single member.
(3) The President determines how the Tribunal is to
30 be constituted, in accordance with this section, for
the purposes of each proceeding.
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(4) More than one Full Bench or single-member
Tribunal or both may sit concurrently.
160. Who presides over a Full Bench?
In a proceeding before a Full Bench--
5 (a) the President presides, if he or she is a
member of the Full Bench;
(b) if the President is not a member, the Vice
President who is a member presides or, if
there is more than one, then the Vice
10 President nominated by the President for the
purpose presides.
161. Opinions equally divided
If for the purposes of a proceeding the Tribunal is
constituted by an even number of members and
15 the opinions of those members on a question
before them are equally divided, the question must
be decided according to the opinion of the
presiding member.
162. Reconstitution of Tribunal
20 (1) At any time during the hearing of a proceeding a
party may apply to the Tribunal requesting that it
be reconstituted for the purposes of the
proceeding.
(2) At any time during the hearing of a proceeding,
25 the President or a member of the Tribunal may
give notice to the parties that the President or
member seeks the reconstitution of the Tribunal
for the purposes of the proceeding.
(3) On application under sub-section (1), or after
30 notice is given under sub-section (2)--
(a) the Tribunal, as presently constituted, after
allowing the parties to make submissions,
may decide that it should be reconstituted;
and
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(b) if so, the President must reconstitute the
Tribunal.
(4) If the Tribunal rejects an application under sub-
section (1) for reconstitution, a party may require
5 the matter to be referred to the President.
(5) If a matter is referred to the President under sub-
section (4), the President, after allowing the
parties to make submissions, may reconstitute the
Tribunal.
10 (6) If the Tribunal is reconstituted for the purposes of
a proceeding, the reconstituted Tribunal may have
regard to any record of the proceeding in the
Tribunal as previously constituted, including a
record of any evidence taken in the proceeding.
15 Division 4--Preliminary Procedure
163. How to make an application to the Tribunal
(1) An application to the Tribunal--
(a) must be in the form, and contain the
particulars, required by the rules; and
20 (b) must be accompanied by any documents or
further information required by the rules; and
(c) must be lodged in the manner specified in
the rules.
(2) The rules may require an application to be verified
25 by statutory declaration or in any other manner.
(3) Two or more persons entitled to make an
application to the Tribunal may make a joint
application.
(4) The registrar must give reasonable assistance on
30 request to a person in formulating an application.
164. Registrar or the Tribunal may reject certain
applications
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(1) Unless otherwise provided for in the rules, the
registrar may reject an application that--
(a) is made by a person not entitled to make it;
or
5 (b) does not otherwise comply with this Act, the
regulations or the rules.
(2) If the registrar rejects an application, the applicant
may require the registrar to refer the application to
the Tribunal for review of the rejection.
10 (3) If the registrar rejects an application, he or she
must inform the applicant of the right of referral
under sub-section (2).
(4) On a referral under sub-section (2), the Tribunal
must review the rejection and may--
15 (a) confirm the rejection; or
(b) order the registrar to accept the application.
(5) Instead of rejecting an application under sub-
section (1), the registrar may refer it to the
Tribunal.
20 (6) On a referral under sub-section (5), the Tribunal
may order that the application be rejected if it is
an application referred to in sub-section (1)(a) or
(b).
165. Intervention
25 (1) The Minister may intervene on behalf of the State
in a proceeding at any time.
(2) A peak body may intervene in a proceeding if, in
the Tribunal's opinion, any members of the peak
body have a sufficient interest in the subject
30 matter of the proceeding.
(3) A recognised organisation may intervene in a
proceeding if, in the Tribunal's opinion, any
persons who are, or are eligible to become,
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members of the organisation have a sufficient
interest in the subject matter of the proceeding.
(4) The Tribunal may give leave at any time for a
person to intervene in a proceeding subject to any
5 conditions the Tribunal thinks fit.
(5) On intervention, the Minister, peak body,
recognised organisation or other person becomes a
party to the proceeding.
166. Obtaining information from third parties
10 (1) On the application of a party to a proceeding, the
Tribunal may order that a person--
(a) who is not a party to the proceeding; and
(b) who has, or is likely to have, in the person's
possession a document that is relevant to the
15 proceeding--
produce the document to the Tribunal or the party
within the time specified in the order.
(2) The Tribunal's power to make an order under sub-
section (1) is exercisable by any member.
20 167. Consolidation of proceedings
(1) The Tribunal may direct that 2 or more
applications that concern the same or related facts
and circumstances--
(a) be consolidated into the one proceeding; or
25 (b) remain as separate proceedings but be heard
and determined together.
(2) If applications or referrals are consolidated,
evidence given in the proceeding is admissible in
relation to all applications or referrals
30 consolidated into that proceeding.
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168. Compulsory conferences
(1) The Tribunal may require the parties to a
proceeding to attend one or more compulsory
conferences before a member of the Tribunal or
5 the registrar before the proceeding is heard by the
Tribunal.
(2) The functions of a compulsory conference are--
(a) to identify and clarify the nature of the issues
in dispute in the proceeding;
10 (b) to promote a settlement of the proceeding;
(c) to allow directions to be given concerning
the conduct of the proceeding.
(3) Notice of a compulsory conference must be given
to each party in accordance with the rules.
15 (4) Unless the person presiding otherwise directs, a
compulsory conference must be held in private.
(5) Subject to this Act and the rules, the procedure for
a compulsory conference is at the discretion of the
person presiding.
20 169. Evidence inadmissible
Evidence of anything said or done in the course of
a compulsory conference is not admissible in any
hearing before the Tribunal in the proceeding,
except--
25 (a) where all parties agree to the giving of the
evidence; or
(b) evidence of directions given at a compulsory
conference or the reasons for those
directions; or
30 (c) evidence of anything said or done that is
relevant to--
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(i) a proceeding for an offence in relation
to the giving of false or misleading
information; or
(ii) a proceeding under section 243
5 (misbehaviour).
170. Settlement of proceedings
(1) If the parties agree to settle a proceeding at any
time, the Tribunal may make any orders necessary
to give effect to the settlement.
10 (2) If the parties agree to settle a proceeding at a
compulsory conference at which the registrar is
presiding, the registrar may exercise the Tribunal's
power to make orders under sub-section (1).
Division 5--Conciliation and Mediation
15 171. Referral for conciliation or mediation
(1) The Tribunal or the registrar may refer a
proceeding or any part of it for conciliation or
mediation by a member of the Tribunal.
(2) A referral may be made under sub-section (1) with
20 or without the consent of the parties.
(3) The registrar must give notice of the conciliation
or mediation to each party in accordance with the
rules.
(4) Subject to this Act and the rules, the procedure for
25 conciliation or mediation is at the discretion of the
conciliator or mediator.
172. Tribunal, conciliator or mediator may require
personal attendance
The Tribunal or registrar who refers a proceeding
30 for conciliation or mediation or the conciliator or
mediator may require a party to attend the
conciliation or mediation, either personally or by a
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representative who has authority to settle the
proceeding on behalf of the party.
173. What happens if conciliation or mediation is
successful?
5 If the parties agree to settle a proceeding as a
result of conciliation or mediation, the conciliator
or mediator must notify the registrar that the
parties have agreed to settle.
174. What happens if conciliation or mediation is
10 unsuccessful?
If the conciliator or mediator has attempted
unsuccessfully to settle the proceeding by
conciliation or mediation--
(a) he or she must notify the registrar that the
15 conciliation or mediation has been
unsuccessful; and
(b) subject to section 150, the Tribunal must
proceed to hear and decide the proceeding.
175. Evidence inadmissible
20 Evidence of anything said or done in the course of
conciliation or mediation is not admissible in any
hearing before the Tribunal in the proceeding,
unless all parties agree to the giving of the
evidence.
25 Division 6--Referral to Experts
176. Use of experts
The Tribunal may call in the assistance of an
expert to advise it in respect of any matter arising
in a proceeding.
30 177. Referral of questions of law to Court
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(1) The Tribunal, with the consent of the President,
may refer any question of law arising in a
proceeding to the Trial Division of the Supreme
Court or the Court of Appeal for decision.
5 (2) A referral may be made under sub-section (1) on
the application of a party or on the Tribunal's own
initiative.
(3) If a question of law has been referred to the Trial
Division or the Court of Appeal, the Tribunal
10 must not--
(a) make a decision to which the question is
relevant while the referral is pending; or
(b) proceed in a manner or make a decision that
is inconsistent with the opinion of the Trial
15 Division or Court of Appeal on the question.
Division 7--Hearings
178. Notice of hearings
(1) The registrar must give notice, in accordance with
the rules, of the time and place for the hearing of a
20 proceeding to--
(a) each party to the proceeding; and
(b) any other person that the Tribunal directs be
given notice of the hearing.
(2) If a person, including a party, to whom notice has
25 been given in accordance with the rules fails to
attend, the Tribunal may proceed to hear and
decide the proceeding in the absence of that
person.
179. Method of conducting hearings
30 (1) If the Tribunal thinks it appropriate, it may
conduct all or part of a proceeding by means of a
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conference conducted using telephones, video
links or any other system of telecommunication.
(2) If the parties to a proceeding agree, the Tribunal
may conduct all or part of a proceeding entirely
5 on the basis of documents, without any physical
appearance by the parties or their representatives
or witnesses.
(3) The Tribunal may adjourn the hearing of a
proceeding at any time.
10 180. Hearings to be public unless otherwise ordered
(1) Unless this Act provides otherwise, all hearings of
the Tribunal must be held in public.
(2) The Tribunal, on its own initiative or on the
application of a party, may direct that a hearing or
15 any part of it be held in private.
(3) If the Tribunal considers it necessary to do so in
the public interest, the Tribunal may order--
(a) that any evidence given before it;
(b) that the contents of any documents produced
20 to it;
(c) that any information that might enable a
person who has appeared before it to be
identified--
must not be published or broadcast except in the
25 manner and to the persons (if any) specified by the
Tribunal.
181. Party may object to member hearing the proceeding
(1) A party to a proceeding who attended or was
represented at a conciliation, mediation or
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compulsory conference may object to the member
who presided constituting the Tribunal (including
as a member of a Full Bench) for the purpose of
hearing the proceeding.
5 (2) The objection must be made to the Tribunal
before or at the commencement of the hearing.
(3) If an objection is made, the member must take no
further part in the hearing and, if necessary, the
Tribunal must be reconstituted.
10 182. Evidence
(1) The Tribunal must allow a party a reasonable
opportunity, within any period determined by it
under sub-section (2)(a)--
(a) to call or give evidence; and
15 (b) to examine, cross-examine or re-examine
witnesses; and
(c) to make submissions to the Tribunal.
(2) The Tribunal may--
(a) determine a period that is reasonably
20 necessary for the fair and adequate
presentation of each party's case and require
the case to be presented within that period;
and
(b) refuse to allow a party to call evidence on a
25 matter if the Tribunal considers that there is
already sufficient evidence of that matter
before the Tribunal.
(3) Evidence in a proceeding--
(a) may be given orally or in writing; and
30 (b) if the Tribunal requires, must be given on
oath or by affidavit5.
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(4) A member of the Tribunal may administer or
cause to be administered an oath or take or cause
to be taken an affirmation for the purpose of
taking and receiving evidence at a hearing.
5 183. Authorisation of person to take evidence
(1) The Tribunal may authorise, in writing, a person
(whether or not a member of the Tribunal) to take
evidence on behalf of the Tribunal for the
purposes of any proceeding.
10 (2) A person may take evidence under this section
outside Victoria if the Tribunal so authorises.
(3) The Tribunal may give directions as to the taking
of evidence under this section.
(4) If a person other than a member of the Tribunal is
15 authorised to take evidence--
(a) the person has all the powers of a member of
the Tribunal in relation to the taking of
evidence; and
(b) section 241 (failing to give evidence) applies
20 as if the person were the presiding member
of the Tribunal.
(5) Evidence taken under this section--
(a) is deemed to be evidence given to the
Tribunal; and
25 (b) in the case of evidence taken outside
Victoria, is deemed to have been given in
Victoria.
184. Witness summons
(1) The registrar--
30 (a) may; and
(b) if directed by the Tribunal, must--
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issue a summons to a person to attend the Tribunal
to give evidence and produce any documents that
are referred to in the summons.
(2) A summons may be issued, or a direction given,
5 under sub-section (1) at the request of a party or
on the registrar's or Tribunal's own initiative.
(3) The Tribunal's power to make a direction under
sub-section (1)(b) in a proceeding is exercisable
by a presidential member or the presiding
10 member.
Division 8--Costs
185. Power to award costs
(1) Subject to sub-section (2), each party is to bear
their own costs in the proceeding.
15 (2) The Tribunal may order that an applicant pay all
or a specified part of the costs of another party
only if satisfied that the applicant made the
application vexatiously or without reasonable
cause.
20 (3) In this section--
"applicant" includes an applicant for leave to
appeal to a Full Bench;
"costs" includes legal and other professional
costs and disbursements and the expenses of
25 witnesses.
186. Amount of costs
(1) If the Tribunal makes an order for costs, the
Tribunal may fix the amount of costs itself or
order that costs be assessed or settled by the
30 registrar.
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(2) An assessment of costs by the registrar is to be
taken to be an assessment of costs by the Tribunal.
Division 9--Decisions and Orders
187. Reserved decisions
5 (1) The Tribunal may reserve its decision in any
proceeding.
(2) A reserved decision by the Tribunal may be
given--
(a) by the Tribunal at a continuation or
10 resumption of the hearing, or at a subsequent
hearing; or
(b) by written decision, signed by the member or
members constituting the Tribunal for the
proceeding, given to the registrar.
15 (3) The registrar must give a copy of a written
decision given to him or her under sub-
section (2)(b) to each party.
188. Written decisions and reasons for them
(1) If the Tribunal gives an oral decision, or a written
20 decision that does not include the reasons for the
decision, a party may request the Tribunal to give
a written decision including the reasons for the
decision.
(2) A request under sub-section (1) must be made
25 within 14 days after the day the original decision
is given.
(3) The Tribunal must comply with the request as
soon as practicable.
(4) The Tribunal must ensure that its written
30 decisions and the reasons for them--
(a) are written in plain language; and
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(b) are structured in a way that makes them as
easy to understand as the subject matter
allows.
189. Orders
5 (1) The Tribunal may make--
(a) any orders that it is authorised to make by or
under this or any other Act; and
(b) any other orders that it considers necessary
or desirable to give effect to any decision
10 that it makes.
(2) The Tribunal may make any orders of an interim
nature that it considers necessary to prevent any
party from acting in a manner prejudicial to
negotiations, conciliation or mediation or to any
15 decision or order the Tribunal might subsequently
make.
190. Form and service of orders
(1) An order of the Tribunal must be--
(a) in writing; and
20 (b) authenticated in accordance with the rules.
(2) The Tribunal must--
(a) give a copy of any order it makes in a
proceeding to each party; or
(b) direct a party to give a copy of an order to
25 the other parties.
(3) The Tribunal may--
(a) give a copy of an order it makes in a
proceeding to any other person or body the
Tribunal considers may be affected by the
30 order;
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(b) direct the registrar or a party to give a copy
of an order made by it to a person or body
referred to in paragraph (a).
191. General publication of decisions and orders
5 (1) The Tribunal may publish, or direct the registrar
or a party to publish, a decision or order of the
Tribunal in any manner the Tribunal considers
appropriate.
(2) For the guidance of those who may wish to bring
10 proceedings, the Tribunal may publish from time
to time reports or bulletins of important or typical
decisions and orders made by it.
192. When does a decision or order come into operation?
(1) A decision or order of the Tribunal comes into
15 effect immediately after it is made, or at such later
time as is specified in it.
(2) Sub-section (1) is subject to an order of the
Tribunal under section 201 or an order of the
Supreme Court.
20 193. Correcting mistakes
(1) The Tribunal may correct a decision or order
made by it if the decision or order contains--
(a) a clerical mistake; or
(b) an error arising from an accidental slip or
25 omission; or
(c) a material miscalculation of figures or a
material mistake in the description of any
person, thing or matter referred to in the
decision or order; or
30 (d) a defect of form.
(2) The correction may be made--
(a) on the Tribunal's own initiative; or
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(b) on the application of a party in accordance
with the rules.
194. Enforcement of monetary orders
(1) A person to whom payment is to be made under a
5 monetary order may enforce the order by filing in
the appropriate court--
(a) a copy of the order certified by a presidential
member or the registrar to be a true copy;
and
10 (b) that person's affidavit as to the amount not
paid under the order.
(2) No charge is to be made for filing a copy of an
order or an affidavit under this section.
(3) On filing, the order must be taken to be an order
15 of the appropriate court, and may be enforced
accordingly.
(4) In this section--
"appropriate court" means a court that would
have jurisdiction to enforce a debt of the
20 equivalent amount to the amount required to
be paid under a monetary order.
195. Enforcement of non-monetary orders
(1) A person may enforce a non-monetary order by
filing in the Supreme Court--
25 (a) a copy of the order certified by a presidential
member or the registrar to be a true copy;
and
(b) that person's affidavit as to the non-
compliance with the order; and
30 (c) a certificate from a presidential member
stating that the order is appropriate for filing
in the Supreme Court.
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(2) No charge is to be made for filing a copy of an
order, an affidavit or a certificate under this
section.
(3) On filing, the order must be taken to be an order
5 of the Supreme Court, and may be enforced
accordingly.
196. Power to impose conditions
(1) A power of the Tribunal to make a decision or
order includes a power to make the decision or
10 order subject to any conditions that the Tribunal
thinks fit.
(2) Conditions may include--
(a) a condition that a party give notice of the
decision or order to any person specified by
15 the Tribunal;
(b) a condition that a person give an undertaking
to the Tribunal;
(c) a condition necessary or desirable to give
effect to the decision or order.
20 197. Variation or revocation of procedural order or
direction
An order or direction as to the procedure to be
followed in a proceeding may be varied or
revoked at any time by any member empowered
25 by or under this Act or the rules to make such an
order or give such a direction.
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PART 4--APPEALS
198. Appeals to Full Bench
(1) If the Tribunal, constituted by a single member,
makes a decision or order in a proceeding, the
5 Minister or a party to the proceeding may appeal
against the decision or order to a Full Bench.
(2) A party to a proceeding may appeal under sub-
section (1) only if a Full Bench gives leave.
(3) On an appeal, the Full Bench may--
10 (a) affirm the decision or order; or
(b) vary the decision or order; or
(c) set aside the decision or order and--
(i) make another decision or order in
substitution for it; or
15 (ii) remit the matter to be heard and
decided again in accordance with any
directions of the Full Bench.
(4) An appeal to a Full Bench is by way of a
rehearing, and for that purpose the Full Bench
20 may--
(a) have regard to the record of the hearing
before the Tribunal at first instance,
including the record of any evidence taken in
that hearing;
25 (b) receive fresh evidence itself.
(5) A Full Bench constituted to hear an appeal must
not include the member who constituted the
Tribunal that made the decision or order appealed
against.
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199. Appeal to Supreme Court on question of law
(1) The Minister or a party to a proceeding before a
Full Bench may appeal to the Supreme Court, on a
question of law, from a decision or order of the
5 Full Bench in the proceeding.
(2) On an appeal, the Supreme Court may--
(a) affirm the decision or order; or
(b) vary the decision or order; or
(c) set aside the decision or order and--
10 (i) make another decision or order in
substitution for it; or
(ii) remit the matter to be heard and
decided again in accordance with any
directions of the Supreme Court.
15 200. Time limit for instituting an appeal
(1) An appeal, or an application for leave to appeal,
under section 198 or 199 against a decision or
order must be instituted or made within 21 days
after--
20 (a) if the decision or order is made at a
hearing--the day on which the hearing takes
place; or
(b) if the decision or order is given through the
registrar--the day on which the registrar
25 gives the decision to the parties.
(2) If a decision is given orally or without reasons,
and a party requests a written decision including
reasons under section 188, the period referred to
in sub-section (1) begins on the day that the
30 written decision including reasons is given to the
party.
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(3) On application made by a person within the period
referred to in sub-section (1), a Full Bench or the
Supreme Court (as the case requires) may extend
the time for the person to institute an appeal or
5 apply for leave to appeal to a Full Bench or the
Supreme Court.
201. Stay of decision or order pending appeal
(1) The Tribunal, on the application of a party or on
its own initiative, may stay the operation of any
10 decision or order made by the Tribunal pending
the determination of any appeal to a Full Bench
that may be instituted.
(2) For the purposes of sub-section (1), the Tribunal
is to be constituted by--
15 (a) a presidential member (other than a
presidential member who constituted the
Tribunal that made the decision or order
concerned); or
(b) a Full Bench (but not including a member
20 who constituted the Tribunal that made the
decision or order concerned).
(3) A Full Bench, on the application of a party or on
its own initiative, may stay the operation of any
decision or order made by a Full Bench pending
25 the determination of any appeal to the Supreme
Court that may be instituted.
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PART 5--RULES
202. Rules
(1) The President may make rules regulating the
practice and procedure of the Tribunal, including
5 any rules required or permitted to be made by this
Act or necessary to be made to give effect to this
Act6.
(2) Before making rules, the President must consult--
(a) the other members of the Tribunal; and
10 (b) if the proposed rules relate to the registry--
the registrar.
(3) Without limiting the matters in respect of which
rules may be made, rules may be made for any
matter referred to in Schedule 2.
15 (4) The rules--
(a) may be of general or limited application;
(b) may differ according to differences in time,
place or circumstances;
(c) may leave any matter or thing to be from
20 time to time determined, applied or
dispensed with by a member of the Tribunal,
the registrar or another member of staff of
the registry.
(5) The power to make rules is subject to the rules
25 being disallowed by the Parliament.
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PART 6--ARRANGEMENTS WITH OTHER AUTHORITIES
Division 1--Member may also be Member of Federal
Commission
203. Member may hold other appointment
5 (1) A member of the Tribunal who is appointed as a
member of the Federal Commission may hold that
appointment and the appointment as a member of
the Tribunal at the same time.
(2) Appointment of a member of the Tribunal as a
10 member of the Federal Commission does not
constitute employment outside the duties of office
for the purposes of section 122.
Division 2--Dual Members
204. Appointment of Commonwealth official as member
15 (1) The Governor in Council may appoint a member
of the Federal Commission to be a member of the
Tribunal ("dual member").
(2) Sections 116(2), 121, 122, 123, 124, 126, 127,
128, 129 and 130 do not apply to the appointment
20 of a dual member or to a dual member.
(3) The appointment--
(a) is for the term the Governor in Council
considers appropriate and states in the
instrument of appointment; and
25 (b) may be ended, with the Governor in
Council's approval, by the Minister's notice
given to the dual member.
(4) A dual member--
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(a) is not entitled to remuneration for
performing the functions of a member of the
Tribunal; but
(b) is entitled to be paid expenses reasonably
5 incurred by the dual member in exercising
powers and performing functions as a
member.
(5) A dual member ceases to be a member of the
Tribunal if the person ceases to be a member of
10 the Federal Commission.
205. Role of dual member
(1) A dual member, as agreed from time to time by
the President and the president of the Federal
Commission--
15 (a) has the functions of a member of the
Tribunal, including the function of
constituting the Tribunal for the purpose of
proceedings; and
(b) has, and may exercise for a particular
20 proceeding or matter, the powers of--
(i) a member of the Tribunal; and
(ii) a member of the Federal Commission.
(2) A provision of this Act prescribing the functions
or powers of a member of the Tribunal is subject
25 to sub-section (1) in its application to a dual
member.
Division 3--References to Magistrates and Commonwealth
Officials
206. References to magistrates
30 (1) The President may make arrangements with the
Chief Magistrate under which magistrates may be
made available to deal with proceedings.
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(2) If an arrangement is in place under sub-section
(1), the President may refer a proceeding to a
magistrate in accordance with the arrangement to
be dealt with by the magistrate under this Act.
5 (3) In dealing with the proceeding, the magistrate--
(a) has the powers of a member of the Tribunal;
and
(b) in exercising the powers, is taken to
constitute the Tribunal.
10 (4) The magistrate's decision is taken to be a decision
of the Tribunal.
(5) The reference of a proceeding to a magistrate--
(a) does not derogate from the Tribunal's
authority to exercise jurisdiction in relation
15 to the proceeding; and
(b) may be revoked by the President by notice
given to the magistrate.
(6) This section applies despite anything to the
contrary in the Magistrates' Court Act 1989.
20 207. References to Commonwealth officials
(1) The President may ask the president of the Federal
Commission to nominate a member of the Federal
Commission to deal with a proceeding.
(2) If a nomination is made, the President may refer
25 the proceeding to the nominated member, to be
dealt with by the nominated member under this
Act.
(3) In dealing with the proceeding, the nominated
member--
30 (a) has the powers of a member of the Tribunal;
and
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(b) in exercising the powers, is taken to
constitute the Tribunal.
(4) The nominated member's decision is taken to be a
decision of the Tribunal.
5 (5) The reference of a proceeding to a nominated
member--
(a) does not derogate from the Tribunal's
authority to exercise jurisdiction in relation
to the proceeding; and
10 (b) may be revoked by the President by notice
given to the nominated member.
Division 4--Conferences and Joint Sessions with Industrial
Authorities
208. Conferences with industrial authorities
15 (1) This section applies if--
(a) the President considers it desirable that a
conference be held with an industrial
authority about a matter; and
(b) the industrial authority agrees to a
20 conference.
(2) The President may confer, or direct another
member of the Tribunal to confer, with the
industrial authority to co-ordinate decisions made,
or to be made--
25 (a) under this Act about the matter; and
(b) by the industrial authority.
209. Joint sessions with industrial authorities
(1) This section applies if--
(a) the President considers a proceeding or other
30 matter should be heard in joint session with
an industrial authority; and
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(b) the industrial authority agrees to a joint
session.
(2) The President may--
(a) hear, or direct another member of the
5 Tribunal to hear, the proceeding or matter in
joint session with the industrial authority;
and
(b) confer, or direct the other member to confer,
with the industrial authority about the
10 proceeding or matter and the decision to be
made in the proceeding or matter; and
(c) join, or direct the other member to join, with
the industrial authority in the decision made
in the proceeding or matter.
15 210. Similar matters before Full Bench and industrial
authority
(1) This section applies if--
(a) the President considers an industrial
authority has before it a matter similar to a
20 proceeding before a 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
25 Bench--participate in joint session with the
industrial authority about the matter; or
(b) direct a member of the Full Bench to
participate in joint session with the industrial
authority about the matter.
30 (3) The President or member must report the result of
the joint session to the Full Bench.
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211. Member's powers in joint session
A member of the Tribunal participating in joint
session with an industrial authority, in relation to
the matter dealt with in joint session, has the
5 functions and may exercise the powers of the
Tribunal.
212. President may decide matter not to be dealt with in
joint session
The President may decide that a proceeding or
10 matter should not be dealt with in joint session
and, if the decision is made after a joint session
about the proceeding or matter starts--
(a) the member of the Tribunal participating in
the joint session must immediately stop
15 participating; and
(b) the proceeding or matter may proceed before
the Tribunal or, if appropriate, a Full Bench.
Division 5--Other Functions etc. and Arrangements
213. Functions and powers vested in Tribunal by other
20 jurisdictions
(1) The Tribunal may perform the functions and
exercise the powers conferred on it under--
(a) the Commonwealth Act; or
(b) a prescribed enactment of a jurisdiction other
25 than Victoria.
(2) A decision of the Tribunal under authority
conferred by sub-section (1) is not a decision
made by it under this Act.
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CHAPTER 5
COMPLIANCE
PART 1--INFORMATION SERVICES
Division 1--Appointment of Information Services Officers
5 214. 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
10 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,
15 honesty and integrity; and
(c) agrees in writing to perform the functions of
an information services officer in accordance
with such criteria as are established from
time to time by the Minister.
20 215. Identity cards
(1) Each information services officer must be issued
with an identity card in the form approved by the
Minister.
(2) The identity card must bear a photograph and the
25 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
other than a requirement made by post, fax,
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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.
5 Penalty: 10 penalty units.
216. Police to assist information services officers
An information services officer may request the
assistance of a member of the police force and a
member of the police force may assist an
10 information services officer to take any action
authorised by this Part.
Division 2--Powers of Information Service Officers
217. When may powers be exercised?
(1) An information services officer may exercise
15 powers under this Division only to the extent that
is reasonably necessary to do so for the purpose
of--
(a) determining compliance with an industry
sector order or another order of the Tribunal;
20 or
(b) otherwise determining compliance with this
Act or the regulations.
(2) An information services officer may not exercise
any powers under this Division if the information
25 services officer fails to produce, on request, his or
her identity card for inspection by the occupier of
the premises.
(3) In exercising powers under this Division, an
information services officer must--
30 (a) cause as little harm and inconvenience or
damage as possible; and
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(b) not remain on premises any longer than is
reasonably necessary; and
(c) leave premises as nearly as possible in the
same condition as it was found prior to the
5 officer's entry.
218. Power of entry
(1) An information services officer may enter--
(a) any premises at which the officer has
reasonable grounds for believing that work 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 purposes set out in section 217(1).
15 (2) Entry under this section may be made--
(a) during ordinary working hours; or
(b) at any other time with the consent of the
occupier.
(3) If an information services officer exercises a
20 power of entry under this section, without the
owner or occupier being present, the information
services officer must--
(a) on leaving the premises, leave a notice
setting out--
25 (i) the time of entry; and
(ii) the purpose of entry; and
(iii) a description of all things done while
on the premises; and
(iv) the time of departure; and
30 (v) the procedure for contacting the
information services officer for further
details of the entry; and
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(b) post a copy of that notice--
(i) to the owner of the premises, if the
identity and address of that owner are
known to the information services
5 officer; and
(ii) to the occupier of the premises, if the
identity and address of that occupier are
known to the information services
officer.
10 219. Powers on entry
On exercising a power of entry under this
Division, an information services officer may--
(a) inspect any work, material, machinery,
appliance, article, facility or other thing;
15 (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
access to, a document relevant to the
20 purposes set out in section 217(1) to produce
the document to the information services
officer within a reasonable period specified
by the information services officer;
(e) inspect, and make copies of or take extracts
25 from, a document produced to him or her.
220. Power to require production of documents
(1) An information services officer, by written notice,
may require a person to produce to the
information services officer, within a reasonable
30 period specified in the notice, a document relevant
to the purposes set out in section 217(1).
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(2) An information services officer may inspect, and
make copies of or take extracts from, a document
produced to him or her under sub-section (1).
221. Retention of documents
5 (1) An information services officer may retain a
document produced to him or her for the period
necessary for the purpose of performing functions
and exercising powers as an information services
officer.
10 (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
it.
15 Division 3--Search Warrants
222. 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
20 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 or the regulations.
25 (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
30 particular thing that may be evidence of the
commission of an offence against this Act or the
regulations.
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(3) The search warrant may authorise an information
services officer named in the warrant and any
assistants the information services officer
considers necessary--
5 (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.
(4) In addition to any other requirement, a search
10 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
search is to be made; and
15 (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
(f) a day, not later than 7 days after the issue of
20 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
form prescribed under that Act.
25 (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.
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223. Announcement before entry
(1) Before executing a search warrant, the
information services officer named in the warrant
or a person assisting the information services
5 officer named in the warrant must--
(a) announce that he or she is authorised by the
warrant to enter the premises; and
(b) give any person at the premises an
opportunity to allow entry to the premises.
10 (2) The information services officer or a person
assisting the information services officer need not
comply with sub-section (1) if he or she believes
on reasonable grounds that immediate entry to the
premises is required to ensure--
15 (a) the safety of any person; or
(b) that the effective execution of the warrant is
not frustrated.
224. Copy of warrant to be given to occupier
If the occupier or another person who apparently
20 represents the occupier is present at the premises
when a search warrant is being executed, the
information services officer must--
(a) identify himself or herself to that person by
producing his or her identity card for
25 inspection by that person; and
(b) give to that person a copy of the execution
copy of the warrant.
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PART 2--ENTRY AND INSPECTION BY RECOGNISED
ORGANISATIONS
225. Inspection permits
(1) An officer or employee of a recognised
5 organisation may apply to the registrar, in the
form approved by the registrar, for an inspection
permit.
(2) On an application under sub-section (1), the
registrar may issue an inspection permit to the
10 officer or employee.
(3) Unless revoked earlier under this section, an
inspection permit remains in force until the earlier
of--
(a) 3 years after the day on which it was issued;
15 (b) the time at which the person to whom it was
issued ceases to be an officer or employee of
the recognised organisation concerned.
(4) The registrar may revoke an inspection permit, on
the application of any person or at his or her own
20 initiative, if the registrar is satisfied that the
person to whom it was issued has, in exercising
powers under this Division, intentionally hindered
or obstructed any employer or employee or
otherwise acted improperly.
25 (5) An application for the revocation of an inspection
permit must--
(a) be in the form approved by the registrar; and
(b) set out the grounds on which the application
is made.
30 (6) A person to whom an inspection permit has been
issued must return the permit to the registrar
within 14 days after its expiry or revocation.
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(7) If one or more inspection permits issued to a
person have been revoked, the registrar must take
that fact into account when deciding whether to
issue a further inspection permit to the person.
5 226. Authority of inspection permit
(1) This section applies if a person who holds an
inspection permit has reasonable grounds for
suspecting that a contravention of this Act or the
regulations may have occurred, or is occurring
10 (including a contravention of an industry sector
order or another order of the Tribunal).
(2) For the purpose of investigating the suspected
contravention, the person may enter, during
working hours, any premises at which employees
15 work who are members of the recognised
organisation of which the person is an officer or
employee.
(3) After entering the premises, the person may, for
the purpose of investigating the suspected
20 contravention--
(a) require the employer of the employees to
allow the person, during working hours, to
inspect and make copies of, or take extracts
from, any documents (including time sheets
25 and pay sheets) that are kept by the employer
on the premises and are relevant to the
suspected contravention;
(b) during working hours, inspect any work,
material, machinery, appliance, article,
30 facility or other thing that is relevant to the
suspected contravention;
(c) during working hours, interview any
employees who are--
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(i) members of the recognised organisation
of which the person is an officer or
employee; or
(ii) eligible to become members of that
5 organisation--
about the suspected contravention.
(4) For the purpose of investigating the suspected
contravention, the person (whether or not he or
she exercises powers under sub-section (2) or (3))
10 may require the employer of the employees
mentioned in sub-section (2)--
(a) to produce documents referred to in sub-
section (3)(a) at the premises at which the
employees work or at some other agreed
15 place; and
(b) if the documents are to be produced at the
premises at which the employees work--to
allow the person, during working hours, to
enter the premises and--
20 (i) inspect the documents; and
(ii) make copies of, or take extracts from,
the documents; and
(c) if the documents are to be produced at
another place--to allow the person, at an
25 agreed time, to inspect the documents at that
place and to make copies of or take extracts
from them.
227. Discussions with employees
(1) A person who holds an inspection permit may
30 enter premises in which--
(a) work is being carried on to which an industry
sector order applies; being an industry sector
order covering persons who are, or are
eligible to become, members of the
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recognised organisation of which the person
is an officer or employee; and
(b) employees who are, or are eligible to
become, members of that organisation
5 work--
for the purpose of holding discussions with any of
those employees who wish to participate in them.
(2) The person may enter the premises only during
working hours and may hold the discussions only
10 during the employees' meal-time or other breaks.
228. When access to premises may be denied on religious
grounds
(1) A person who holds an inspection permit may be
denied access to premises if--
15 (a) all the employees who work at the
premises--
(i) hold a current certificate of exemption
issued under sub-section (2); and
(ii) are employed by an employer who
20 holds a current certificate of exemption
issued under sub-section (2); and
(b) there are no more than 20 employees
employed to work at the premises.
(2) The Tribunal may, for the purpose of sub-section
25 (1), issue a certificate of exemption to an
employee or an employer if the Tribunal is
satisfied that the employee or employer is a
practising member of a religious society or order
whose doctrines or beliefs preclude membership
30 of any organisation or body other than the
religious society or order of which the employee
or employer is a member.
(3) The Tribunal may revoke a certificate of
exemption if--
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(a) the employee or employer to whom it has
been issued agrees; or
(b) it was issued in error; or
(c) the Tribunal is satisfied that the employee or
5 employer has ceased to be a person eligible
to be issued with the certificate.
229. Conduct not authorised
(1) If--
(a) a person proposes to enter, or is on, premises
10 in accordance with section 226 or 227; and
(b) the occupier of the premises requires the
person to show his or her inspection
permit--
the person is not entitled to enter or remain on the
15 premises unless he or she shows the permit to the
occupier.
(2) A person is entitled to enter premises and exercise
powers under section 226 or 227 if the person has
given the occupier of the premises at least
20 24 hours' notice of the person's intention to do so.
(3) A person is not, in exercising any powers under
section 226 or 227, entitled to enter any part of
premises used for residential purposes except with
the consent of the occupier.
25 _______________
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PART 3--VICTIMISATION
230. Application of Part
In this Part--
"employee" includes an independent contractor, a
5 prospective employee and a prospective
independent contractor;
"employer" includes a prospective employer and
a person who has engaged, or proposes to
engage, an independent contractor.
10 231. Prohibition of victimisation
(1) An employer or a recognised organisation must
not victimise an employee.
(2) An employer or a recognised organisation
victimises an employee if the employer or
15 recognised organisation subjects or threatens to
subject the employee to any detriment because the
employee, or a person associated with the
employee, has--
(a) claimed a benefit or exercised a power or
20 right that he or she is entitled to claim or
exercise under this Act, an industry sector
order or another order of the Tribunal; or
(b) brought, or otherwise participated in, a
proceeding under this Act; or
25 (c) informed any person of an alleged
contravention of this Act (including a
contravention of an industry sector order or
other order of the Tribunal) by any person.
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232. Application to Tribunal in respect of victimisation
(1) Any of the following may apply to the Tribunal in
respect of the alleged victimisation of an
employee--
5 (a) the employee; or
(b) a parent or guardian of the employee if the
employee is under the age of 18; or
(c) a person authorised by the employee to make
the application on his or her behalf; or
10 (d) a recognised organisation of which the
employee is a member; or
(e) an information services officer.
(2) The application must be made within 21 days after
the day on which the victimisation is alleged to
15 have occurred.
233. Powers of Tribunal to redress victimisation
(1) On an application under section 232 in relation to
alleged victimisation by an employer, the
Tribunal, if it is satisfied that the victimisation
20 occurred, may make any order it considers
appropriate to redress the victimisation, including
an order--
(a) that the employer reinstate or re-employ the
employee;
25 (b) that the employer promote or otherwise
advance the employee in his or her
employment;
(c) that the employer pay the employee the
amount of any remuneration or other
30 financial benefit lost or foregone;
(d) in the case of a prospective employee--that
the employer employ the employee;
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(e) that the employer not carry out a threatened
victimisation or not make any further threat;
(f) an order as to the continuity of service of the
employee.
5 (2) On an application under section 232 in relation to
alleged victimisation by a recognised
organisation, the Tribunal, if it is satisfied that the
victimisation occurred, may make any order it
considers appropriate to redress the victimisation,
10 including an order that the organisation, or its
officials or employees take particular action or
cease a particular activity.
_______________
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PART 4--OFFENCES AND ENFORCEMENT
Division 1--Inspection Offences
234. Failing to produce documents and hindering
information services officers
5 A person must not, without reasonable excuse--
(a) fail to comply with a notice to produce a
document given under section 219 or 220; or
(b) otherwise obstruct or hinder an information
services officer performing functions or
10 exercising powers under this Act.
Penalty: 60 penalty units.
235. Giving false information to information services
officer
A person must not--
15 (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
services officer that the person knows to be
20 false or misleading in a material particular
without indicating the respect in which it is
false or misleading and, if practicable,
providing correct information.
Penalty: 60 penalty units.
25 236. Protection against self-incrimination
It is a reasonable excuse for a natural 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 Act if the producing of the document or
30 the doing of the other thing would tend to
incriminate the person.
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237. Impersonation of information services officer
A person must not impersonate an information
services officer.
Penalty: 60 penalty units.
5 238. Inspections by recognised organisations
(1) A person exercising powers under section 226 or
227 must not intentionally hinder or obstruct any
employer or employee.
Penalty: 60 penalty units.
10 (2) The occupier of premises must not refuse or
unduly delay entry to the premises by a person
entitled to enter the premises under section 226 or
227.
Penalty: 60 penalty units.
15 (3) An employer must not refuse or fail to comply
with a requirement under section 226(3)(a) or
226(4).
Penalty: 60 penalty units.
(4) A person must not otherwise intentionally hinder
20 or obstruct a person exercising powers under
section 226 or 227. To avoid doubt, a failure to
agree on a place or a time as mentioned in
section 226(4)(a) or (c) does not constitute
hindering or obstructing a person exercising such
25 powers.
Penalty: 60 penalty units.
Division 2--Tribunal Offences
239. Non-compliance with orders of Tribunal
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(1) A person who does not comply with an order of
the Tribunal is guilty of an offence.
Penalty: Imprisonment until the person complies
with the order or for 3 months,
5 whichever is sooner or a fine of
20 penalty units and 5 penalty units for
each day the non-compliance continues
after the making of the order, up to a
maximum total fine of 50 penalty units
10 or both imprisonment and fine.
(2) However, if the Tribunal makes an order without
giving the person against whom it is made an
opportunity to be heard, sub-section (1) only
applies on the person being given personally or in
15 accordance with sub-section (3)--
(a) a copy of the order certified by the registrar
or a member of the Tribunal as being an
accurate copy; and
(b) a copy of this section.
20 (3) If the Tribunal is satisfied that it is not possible or
appropriate for a person to be personally given the
documents referred to in sub-section (2), the
Tribunal may specify another method for service
of the documents on the person under that sub-
25 section.
240. Failing to comply with summons
A person who has been properly served with a
summons to attend the Tribunal must not, without
reasonable excuse, fail to--
30 (a) attend as required by the summons until he
or she has been excused or released from
attendance by the Tribunal; or
(b) produce any document referred to in the
summons that is in the person's possession.
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Penalty: 60 penalty units or imprisonment for
6 months, or both, and 5 penalty units
for each day that the offence continues
after the day on which the person was
5 required to attend or produce the
document.
241. Failing to give evidence
A person appearing as a witness before the
Tribunal must not, without reasonable excuse--
10 (a) refuse to be sworn in or make an affirmation;
or
(b) refuse to answer a question that the person is
required by the presiding member to answer.
Penalty: 60 penalty units or imprisonment for
15 6 months, or both.
242. Giving false or misleading information to Tribunal
A person must not knowingly give false or
misleading information to the Tribunal, the
registrar or a member of staff of the registry.
20 Penalty: 60 penalty units or imprisonment for
6 months, or both.
243. Misbehaviour at Tribunal
(1) A person must not--
(a) insult a member of the Tribunal while that
25 member is performing functions as member;
or
(b) insult, obstruct or hinder a person attending a
hearing before the Tribunal; or
(c) misbehave at a hearing before the Tribunal;
30 or
(d) interrupt a hearing before the Tribunal; or
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(e) obstruct or hinder a person from complying
with an order of the Tribunal or a summons
to attend the Tribunal; or
(f) do any other act that would, if the Tribunal
5 were the Supreme Court, constitute contempt
of that Court.
Penalty: in the case of a natural person,
240 penalty units or imprisonment for
2 years or both.
10 in the case of a body corporate,
1200 penalty units.
(2) The Tribunal may order that a person who
contravenes sub-section (1) at a hearing be
excluded from the hearing.
15 (3) The making of an order under sub-section (2) does
not affect the person's liability to be prosecuted
for the contravention.
Division 3--General Offences
244. Attempting, aiding, inducing etc. offences
20 A person who--
(a) attempts to contravene; or
(b) aids, abets, counsels or procures a person to
contravene; or
(c) induces, or attempts to induce, a person
25 whether by threats or promises or otherwise
to contravene--
a provision of this Act for which a penalty is
specified is guilty of an offence against that
provision and is liable to the penalty specified for
30 a contravention of that provision.
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Act No.
Division 4--Infringement Notices
245. Definitions
In this Division--
"enforcement officer" means--
5 (a) an information services officer; or
(b) a prescribed person or a person in a
prescribed class of persons;
"infringement penalty" for a prescribed offence
is the amount prescribed as an infringement
10 penalty in respect of that offence;
"prescribed offence" means an offence against a
prescribed provision of this Act or the
regulations.
246. Power to serve a notice
15 (1) An enforcement officer may serve an infringement
notice on any person that he or she has reason to
believe has committed a prescribed offence.
(2) An infringement notice may be served on a
person--
20 (a) by delivering it personally to the person; or
(b) by sending it by post addressed to the
person's last known place of residence or
business.
247. Form of notice
25 An infringement notice must state--
(a) the date of the notice;
(b) the provision of this Act or the regulations
that creates the offence;
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(c) the nature, and a brief description, of the
alleged offence;
(d) the date, time and place of the alleged
offence;
5 (e) the infringement penalty for the alleged
offence;
(f) the manner in which the infringement
penalty may be paid;
(g) the time (being not less than 28 days after
10 the date on which the notice is served) within
which the infringement penalty must be paid;
(h) that, if the amount of the infringement
penalty is paid before the end of the time
specified in the notice, the matter will not be
15 brought before the Magistrates' Court unless
the notice is withdrawn within 28 days after
the date on which it was served;
(i) that the person is entitled to disregard the
notice and defend any proceedings in respect
20 of the offence in the Magistrates' Court;
(j) any other prescribed particulars.
248. Late payment of penalty
An enforcement officer may accept payment of
the infringement penalty even after the expiration
25 of the time for payment stated in the infringement
notice if--
(a) neither a charge has been filed nor a courtesy
letter served under Part 2 of Schedule 7 to
the Magistrates' Court Act 1989 in respect
30 of the offence to which the infringement
penalty relates; and
(b) the infringement notice has not been
withdrawn.
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249. Withdrawal of notice
(1) An enforcement officer may withdraw an
infringement notice at any time within 28 days
after the date on which the notice was served by
5 serving a withdrawal notice on the person served
with the infringement notice.
(2) A withdrawal notice may be served on a person--
(a) by delivering it personally to the person; or
(b) by sending it by post addressed to the
10 person's last known place of residence or
business.
(3) An infringement notice may be withdrawn even if
the infringement penalty has been paid.
(4) If an infringement notice is withdrawn, the
15 amount of any infringement penalty paid must be
refunded and the Consolidated Fund is, to the
necessary extent, appropriated accordingly.
250. Payment expiates offence
If an infringement notice is not withdrawn and the
20 infringement penalty is paid within the time for
payment stated in the notice or is accepted in
accordance with section 248, then--
(a) the person on whom the notice was served
has expiated the offence by that payment;
25 and
(b) no proceedings may be taken against that
person in respect of that offence; and
(c) no conviction is to be taken to have been
recorded against that person for that offence.
30 251. Payment not to have certain consequences
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(1) The payment of an infringement penalty under
this Part is not and must not be taken to be--
(a) an admission of guilt in relation to the
offence; or
5 (b) an admission of liability for the purpose of
any civil claim or proceeding arising out of
the same occurrence and the payment does
not in any way affect or prejudice any such
claim or proceeding.
10 (2) The payment of an infringement penalty under
this Part must not be referred to in any report
provided to a court for the purpose of determining
sentence for an offence.
252. Prosecution after service of infringement notice
15 A charge may be filed in respect of an offence to
which an infringement notice relates if--
(a) the infringement penalty has not been paid
within the time for payment stated in the
notice or in accordance with section 248; or
20 (b) the notice is withdrawn.
253. Enforcement of infringement penalty
Payment of the infringement penalty may be
enforced in accordance with Part 2 of Schedule 7
to the Magistrates' Court Act 1989 if--
25 (a) the infringement notice is an infringement
notice within the meaning of Schedule 7 to
that Act; and
(b) the infringement penalty has not been paid
within the time stated in the notice or in
30 accordance with section 248; and
(c) the notice has not been withdrawn; and
(d) a charge has not been filed in accordance
with section 252.
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Division 5--Prosecutions, Evidence and Recovery of Money
254. 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.
255. 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 to the Department, 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; or
20 (d) the registrar.
(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
25 class of case or cases; and
(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
30 person's authorisation was revoked unless the
notice of revocation states otherwise.
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(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 lawyer briefed by the person authorised to
10 bring the prosecution.
256. Judicial notice of signatures
All courts must take judicial notice of--
(a) the signature of a person who is, or was at
the time the signature purports to have been
15 made, the Minister, the Secretary to the
Department or an employee to whom section
255(1)(c) applies; and
(b) the fact that a person listed in paragraph (a)
held the position he or she purported to hold
20 at the time the signature purports to have
been made.
257. Conduct of agents imputed to corporations
For the purposes of this Act, any conduct engaged
in on behalf of a corporation--
25 (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
the consent (express or implied) of such a
30 director, employee or agent--
is also conduct engaged in by the corporation.
258. Reverse onus of proof in certain cases
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In a prosecution against an employer for failing to
pay an employee an amount owed to the employee
under a contract of employment if--
(a) the employee is dead; and
5 (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--
the employer bears the onus of proving the
10 allegation.
259. Recovery of money owed
(1) An employee who is owed any money by an
employer under this Act or any other Act, or
under any contract of employment or industry
15 sector 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.
(2) The proceedings must be started within 6 years
20 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
demand for the money owed.
25 (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
dispute the claim; and
30 (c) in the circumstances should have paid the
claim without the need for proceedings
being taken to establish the validity of the
claim--
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the Court may order the employer to pay interest
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
5 under section 2 of the Penalty Interest Rates Act
1983 that applies at the time the Court makes the
order.
(6) If a claim is made under this section by an
employee's personal representative, sub-sections
10 (4) and (5) apply despite anything to the contrary
in section 29 of the Administration and Probate
Act 1958.
260. Court may order payment of arrears on finding of
guilt
15 (1) If the Industrial Division of the Magistrates' Court
finds an employer guilty of an offence relating to
the underpayment of an employee, the Court may
order the employer to pay the employee any
amount that the employee was underpaid and that
20 is still owed to the employee, in addition to
imposing a penalty for the offence.
(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.
25 (3) Sub-sections (4), (5) and (6) of section 259 apply
to this section.
(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
30 paid after all reasonable means of civil
enforcement have been tried, the order may be
enforced as if it were a fine imposed by the Court.
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s. 260
Act No.
(5) Nothing in this section limits an employee's rights
under section 259, and nothing in that section
limits the power of the Court under this section.
_______________
5
165
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Fair Employment Act 2000
s. 261
Act No.
CHAPTER 6
GENERAL
PART 1--GENERAL PROVISIONS
261. Recognition of organisations
5 (1) The Tribunal, on application by an organisation
that is registered under the Commonwealth Act,
may recognise the organisation for the purposes of
this Act.
(2) The Tribunal may revoke an organisation's
10 recognition, on the application of any person or on
the Tribunal's own initiative, if the Tribunal is
satisfied that the organisation--
(a) has failed to comply with an order of the
Tribunal; or
15 (b) has repeatedly engaged in conduct which is
in contravention of this Act or the
regulations.
262. Records relating to employees
(1) The regulations may make provision in relation
20 to--
(a) the making and retention by employers of
records relating to the employment of
persons; and
(b) the inspection of records referred to in
25 paragraph (a).
(2) The regulations may require employers to issue
pay slips to employees at such times, and
containing such particulars, as are prescribed.
166
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s. 263
Act No.
263. Service of documents
(1) For the purposes of this Act, a notice, order or
other document may be served on or given to a
person--
5 (a) if the person is a natural person--
(i) by delivering it personally to the
person; or
(ii) by sending it by post, fax, e-mail or
other electronic communication to the
10 person at his or her usual or last known
residential or business address; or
(iii) by leaving it at the person's usual or last
known residential or business address
with a person on the premises who is
15 apparently at least 16 years old and
apparently residing or employed there;
or
(b) if the person is a company incorporated
under the Corporations Law--
20 (i) by delivering it personally to the
registered office of the company; or
(ii) by sending it by post, fax, e-mail or
other electronic communication to the
registered office of the company; or
25 (iii) in any other way that service of
documents may be effected on a body
corporate; or
(c) if the person is an incorporated association
within the meaning of the Associations
30 Incorporation Act 1981, in accordance with
section 48 of that Act; or
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s. 264
Act No.
(d) in any case--
(i) in a manner permitted by the rules; or
(ii) in a manner directed by the Tribunal.
(2) For the purposes of this Act, a notice or other
5 document may be served on or given to an
unincorporated association--
(a) by delivering it personally to the president,
secretary or other similar officer of the
association; or
10 (b) by sending it by post, fax, e-mail or other
electronic communication to the president,
secretary or other similar officer of the
association at that person's usual or last
known residential or business address; or
15 (c) in any other manner--
(i) permitted by the rules; or
(ii) directed by the Tribunal.
(3) If the Tribunal directs that notice be given to a
person, or a class of persons, by advertisement or
20 publication of the notice, that advertisement or
publication must be taken to be service of notice
on the person, or persons in that class, as the case
requires.
264. Substituted service
25 (1) If the Tribunal or the registrar considers that--
(a) service of a document cannot be effected
promptly on a person or body by any of the
methods specified in section 263(1) or (2);
and
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s. 265
Act No.
(b) a notice published in accordance with a
direction under section 263(3) would be
unlikely to come to the attention of a person
affected by it--
5 the Tribunal or registrar may make an order for
substituted service.
(2) Substituted service in accordance with an order
under sub-section (1) is sufficient service of the
person required to be served.
10 265. When is service effective?
(1) For the purposes of this Act, a notice or other
document must be taken to have been served on,
or given to, a person or an incorporated
association--
15 (a) in the case of delivery in person--at the time
the document is delivered;
(b) in the case of posting--2 business days after
the day on which the document was posted;
(c) in the case of fax, e-mail or other electronic
20 communication--at the time the
communication is received.
(2) If a fax, e-mail or other electronic communication
is received after 4.00 p.m. on any day, it must be
taken to have been received on the next business
25 day.
(3) In this section--
"business day" means a day other than--
(a) a Saturday or Sunday; or
(b) a public holiday or public half-holiday
30 in the place to where the notice is sent
or delivered.
169
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s. 266
Act No.
266. Review of interim grievance code of practice
The Tribunal must review the interim grievance
code of practice set out in Schedule 1 within
12 months after the commencement of
5 section 105.
267. Regulations
(1) The Governor in Council may make regulations
for or with respect to--
(a) forms for the purposes of this Act;
10 (b) the particulars to be kept in registers and
records kept under this Act;
(c) the inspection by employees of records kept
under this Act which relate to them;
(d) generally prescribing any other matter or
15 thing required or permitted by this Act to be
prescribed or necessary to be prescribed to
give effect to this Act.
(2) The regulations--
(a) may be of general or limited application;
20 (b) may differ according to differences in time,
place or circumstances;
(b) may prescribe a penalty of up to 10 penalty
units for any breach of the regulations.
_______________
25
170
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Fair Employment Act 2000
s. 268
Act No.
PART 2--REPEAL AND TRANSITIONAL PROVISIONS
268. Repeal of Long Service Leave Act 1992
See: The Long Service Leave Act 1992 is repealed.
Act No.
83/1992.
Reprint No. 2
as at
6 March 1997.
LawToday:
www.dms.
dpc.vic.
gov.au
269. Long service leave exemption
5 An exemption granted under section 65 of the
Long Service Leave Act 1992 and in force
immediately before the commencement of this
section continues in force and is to be treated as if
it were an exemption granted under section 57 of
10 this Act.
270. Workplace grievances
(1) Subject to this section, an application may be
made to the Tribunal to resolve a workplace
grievance whether the events giving rise to the
15 grievance occurred before, on or after the
commencement of Part 1 of Chapter 3.
(2) An application cannot be made to the Tribunal to
resolve a workplace grievance regarding an
entitlement to money arising, or an underpayment
20 in respect of a period ending, more than 12
months immediately before the commencement of
Division 1 of Part 2 of Chapter 3, being an
entitlement or underpayment to which section 160
or 161 of the Long Service Leave Act 1992
25 applied.
171
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s. 271
Act No.
271. Recovery of former employees' entitlements
(1) Subject to this section, an application may be
made to the Tribunal under section 110 whether
the non-payment of remuneration or non-
5 provision of entitlements allegedly occurred
before, on or after the commencement of Division
1 of Part 2 of Chapter 3.
(2) An application cannot be made to the Tribunal
under section 110 regarding an entitlement to
10 money arising, or an underpayment in respect of a
period ending, more than 12 months immediately
before the commencement of Division 1 of Part 2
of Chapter 3, being an entitlement or
underpayment to which section 160 or 161 of the
15 Long Service Leave Act 1992 applied.
272. Industry sectors
On and from the commencement of section 80
until the first declaration of industry sectors under
that section, the following are to be treated as if
20 they were industry sectors declared under that
section--
· accommodation, cafes and restaurant industry
· agricultural, forestry and fishing industry
· communication services industry
· construction industry
25
· cultural and recreational services industry
· education industry
· electricity, gas and water supply industry
· finance and insurance industry
· government administration industry
30
172
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s. 273
Act No.
· health and community services industry
· manufacturing industry
· mining industry
· personal and other services industry
· police services (but not including members of
5
the police force, police reservists, police
recruits and protective services officers)
· property and business services industry
· retail trade industry
· transport and storage industry
10
· wholesale trade industry.
273. Minimum wages
(1) On and from the commencement of section 83
until a minimum wage for an employee is set
15 under that section, the federally-set hourly
minimum wage of the employee is to be treated as
if it were a minimum wage set by the Tribunal
under section 83 for that employee for each hour
worked by that employee in a working week,
20 irrespective of the length of that week.
(2) In sub-section (1) "federally-set hourly
minimum wage", in relation to an employee,
means the minimum wage (if any) for each hour
worked by the employee in a working week of a
25 particular length, as set or adjusted for the
employee by the Federal Commission under
section 501 of the Commonwealth Act
immediately before the commencement of
section 83.
173
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s. 274
Act No.
274. Schedule 1A entitlements
An entitlement accrued to an employee under
Division 3 of Part XV of, and Schedule 1A to, the
Commonwealth Act is not affected by--
5 (a) the enactment of this Act; or
(b) the termination of a reference under a sub-
section of section 4 of the Commonwealth
Powers (Industrial Relations) Act 1996.
275. Savings and transitional regulations
10 (1) The Governor in Council may make regulations
that contain provisions of a savings and
transitional nature consequent on--
(a) the enactment of this Act; or
(b) the termination of a reference under a sub-
15 section of section 4 of the Commonwealth
Powers (Industrial Relations) Act 1996.
(2) A provision mentioned in sub-section (1) may be
retrospective in operation.
(3) Regulations under this section have effect despite
20 anything to the contrary in any Act other than this
Act or in any instrument made under an Act.
276. Interpretation of Legislation Act 1984
This Part does not affect or take away from the
Interpretation of Legislation Act 1984.
25 __________________
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Fair Employment Act 2000
Sch. 1
Act No.
SCHEDULES
SCHEDULE 1
Section 105(3)
INTERIM GRIEVANCE CODE OF PRACTICE
5 1. A workplace grievance must be dealt with in the following manner--
(a) where the aggrieved party is the employee--
(i) the aggrieved employee must first discuss the matter with his
or her immediate supervisor. The employee may request a
representative to be present;
10 (ii) if the grievance is not settled, the employee may request a
representative to be present and the matter must be discussed
with the immediate supervisor and his or her superior or
another representative of the employer appointed for the
purpose of this procedure. An employee's request for a
15 representative to be present must be allowed unless it is
unreasonable in the circumstances to do so;
(b) where the aggrieved party is the employer, the aggrieved employer
or a representative of the employer must discuss the matter with
the employee. The employee may request a representative to be
20 present. An employee's request for a representative to be present
must be allowed unless it is unreasonable in the circumstances to
do so.
2. In order to facilitate the procedure in clause 1--
(a) the aggrieved party must notify the other party at the earliest
25 opportunity of the grievance;
(b) throughout all stages of the procedure all relevant facts must be
clearly identified and recorded;
(c) sensible time limits must be allowed for completion of the stages
and discussion. However, the parties must co-operate to ensure
30 that the resolution procedure is carried out as quickly as possible.
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Sch. 1
Act No.
3. While parties are attempting to resolve a workplace grievance--
(a) work is to continue in accordance with this Act, any applicable
industry sector order or industrial instrument and the relevant
contract of employment, unless the employee has a reasonable
5 concern about an imminent risk to his or her health and safety;
(b) if the employee has a concern referred to in paragraph (a), he or
she must comply with a direction of the employer to perform other
available work that is safe and appropriate for the employee to
perform.
10 4. Clause 3(b) is subject to the provisions of any law relating to
occupational health and safety.
__________________
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Fair Employment Act 2000
Sch. 2
Act No.
SCHEDULE 2
Section 202(3)
SUBJECT MATTER FOR RULES
1. Procedure for making applications and referrals to the Tribunal.
5 2. Procedure for calling in experts.
3. The taking of evidence under section 183.
4. Issuing and service of summonses.
5. Assessments of costs, including scales of costs to be allowed.
6. Procedure for filing orders of the Tribunal with a court for enforcement.
10 7. Form and content and procedure for maintaining the register of
proceedings.
8. Publishing decisions and other actions of the Tribunal or the registrar.
9. Service of documents
10. Contents of register of proceedings and availability and procedure for
15 inspecting and obtaining copies of register of proceedings and
proceeding files.
11. Procedures for conciliation and mediation, including conciliation and
mediation under Division 3 of Part 2 of Chapter 3.
12. Procedure for resolving workplace grievances.
20
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Endnotes
Act No.
ENDNOTES
1
The index attached to this Act does not form part of this Act and is
provided for convenience of reference only.
2
S. 15: Section 52 of the Juries Act 2000 entitles an employee who attends
court for jury service to be reimbursed by his or her employer the
difference between the amount of remuneration paid to the employee
under the Juries Act and the amount the employee would have earned if
he or she had not been summoned for jury service.
3
Ch 3 Pt 2 Div. 1: In this Division, a reference to a former employee
includes a reference to a person formerly engaged to perform work under
a contract for services and a former employer includes a person for
whom, or on whose behalf, that work was performed--see definitions in
section 4.
4
S. 140(4)(a): Section 31(1)(d) of the Public Sector Management and
Employment Act 1998 provides that the employment of a non-executive
employee may be terminated if the employee is guilty of serious
misconduct.
5
S.182(3)(b): Section 102 of the Evidence Act 1958 provides that an
affirmation can be made instead of an oath. Section 38 of the
Interpretation of Legislation Act 1984 provides that a reference to
"oath" includes a reference to "affirmation" and a reference to "affidavit"
includes a reference to "declaration".
6
S. 202(1): Rules made under this section are statutory rules for the purposes
of the Subordinate Legislation Act 1994 (see paragraph (b) of the
definition of "statutory rule" in section 3 of that Act).
By Authority. Government Printer for the State of Victoria.
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Act No.
INDEX
Subject Section
Act
commencement 2
Crown bound by 14
division into chapters 12
object 3
purpose 1
268
repeal of Long Service Leave Act 1992
status of examples 13
transitional provisions 269275
3335, 3944
Adoption leave
2024
Annual leave
198201
Appeals
51, 99
Apprentices
3132
Bereavement leave
2528, 30
Carer's leave
Casual employees
definitions 4, 10, 55
long service leave 5355
parental leave 33
unpaid bereavement leave 32
unpaid carer's leave 30
Code of practice See Workplace grievances
Continuity of service and employment
application of Chapter 2, Part 4 97
apprentices or trainees 51, 99
definitions 96
general provisions 100
long-service leave provisions 5153
transfer of business 98
9395
Contractors (Principals)
Definitions
accumulated personal leave 25
actual service 55
applicant 185
appropriate authority 89
appropriate court 194
assets 49
base weekly earnings average 11
business 49
business day 265
casual 4, 10
casual employee 55
child 34
Commissioner 4
Commonwealth Act 4
179
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Fair Employment Act 2000
Act No.
Subject Section
contract 4
costs 185
current weekly earnings average 11
de facto spouse 4
Department 4
dismissed 98
doctor 4
doctor's certificate 4
dual members 4
employee 4, 5, 230
employer 4, 7, 48, 230
employment entitlement 4
enforcement officer 245
Federal Commission 4
federally-set hourly minimum wage 273
firm 4
former employee 4
former employer 4
Full Bench 4
full-time employee 4, 10
grievance code of practice 105
hourly rate 55
immediate family 4
indexable amount 11
indexation day 11
industrial authority 4
industrial dispute 4
industrial instrument 4
industry 4, 9
industry sector order 4
ineligible employee 4
information services officer 4
infringement penalty 245
insolvent under administration 4
labour hire agency 7
lawyer 4
long-term casual 4
minimum condition 4
ordinary pay 56
outworker 8
parental leave 34
part-time employee 4, 10
peak body 4
pieceworker 4
prescribed offence 245
President 4
presidential member 4
presiding member 4
180
541149B.A1-17/11/2000 BILL LA AS SENT 17/11/2000
Fair Employment Act 2000
Act No.
Subject Section
proceeding 4
public holiday 18
recognised organisation 4
records 4
registrar 4
rules 4
service 96
subsidiary 100
terminate 100
transfer 49
transfer of business 96
transferred employee 98
Tribunal 4
tribunal official 153
Vice President 4
victimise 4
workplace 4
workplace grievance 4
Employees
casual employees 10, 30, 32, 33,
5355
contract workers 6
definitions 3, 5, 10
former employees 110111, 272
full-time employees 10
ineligible employees 4, 11, 24, 78, 102
outworkers 8
part-time employees 10, 16, 31, 79
records regarding 262
recovery of money owed to 101, 259260
victimisation 230233
Employers
definitions 4, 7, 48, 230
"one employer" for long service leave purposes 49
10
Employment categories
Employment conditions
adoption leave 3335, 3944
annual leave 2024
bereavement leave 3132
breaks 17
carer's leave 2528, 30
continuity of service and employment 5153, 96100
effect of Chapter 2, Part 2 15
hours of work 17
industry sector orders 7787, 272273
long service leave 4570, 269
maternity leave 3337, 4044, 52
parental leave 3344, 52
181
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Fair Employment Act 2000
Act No.
Subject Section
paternity leave 3335, 38, 4044,
52
personal leave 2530, 52
public holidays 1819, 82
review of minimum conditions 7476
sick leave 2529
termination of employment 23, 64, 7173
See also Remuneration; Workplace grievances
Entry powers
information service officers 217219
recognised organisations 225229
Tribunal officials 153
Equal pay See Remuneration
Fair Employment Registry
deputy registrars 142
establishment 138
files of proceedings 145
functions 139
immunity of registrar and deputy registrar 147
judicial notice of registrar and deputy registrar 146
register of proceedings 143
registrar 140141
registrar's certificate 144
staff 142
Fair Employment Tribunal
annual report 137
conferences with industrial authorities 208
constitution 116
declarations 6, 80
delegation by President 136
directions 149
establishment 115
judicial notice 146
offences against 239243
registry 138147
review of minimum employment conditions 7476
rules 202, Sch. 2
validity of proceedings 131
See also Fair Employment Tribunal - Members
Fair Employment Tribunal - Powers
Fair Employment Tribunal - Proceedings
Fair Employment Tribunal - Members
acting presidents and vice presidents 132133
appointment 116123, 132133
Commissioners 119, 121, 128130,
204205
disclosure of interests 125
dual members 204205
182
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Fair Employment Act 2000
Act No.
Subject Section
full-time appointments 121
immunity provisions 147
investigation of Commissioners 130
membership of Federal Commission 203205
outside employment 122
part-time appointments 121
President 117, 120, 121, 127,
134136
removal from office 127130
remuneration and allowances 124
resignation 126
suspension of Commissioners 129
term of appointment 123
Vice Presidents 118, 120, 121, 127
Fair Employment Tribunal - Powers
general provisions 148
regarding
amendment of documents 151
conciliation of industrial disputes 114
declaring contract workers as employees 6
entitlements of former employees 110111, 271
entry and inspection 153
equal pay 8586
industry sector orders 8085, 8788
inquiries 112113
long service leave 57, 58
mediation of industrial disputes 114
National Wage Case decisions 84
victimisation 232233
workplace grievances 106109, 270
vested by other jurisdictions 213
Fair Employment Tribunal - Proceedings
appeals to Full Bench 198, 200201
appeals to Supreme Court 199201
applications to Tribunal 102104, 163164
compulsory conferences 168169
conciliation 171175
conduct of hearings 179
consolidation 167
constitution of Tribunal in 158162, 181
costs 185186
decisions 187188, 191193,
196
dismissal of unjustified proceedings 150
enforcement of orders 194195
equally divided opinions of Tribunal 161
evidence 182183, 240
expert advice in 176
183
541149B.A1-17/11/2000 BILL LA AS SENT 17/11/2000
Fair Employment Act 2000
Act No.
Subject Section
extension of time limits 152
general procedure 154155
hearings 178184
interpreters 158
intervention in 165
joinder of parties to 156
joint sessions with industrial authorities 209212
mediation 171175
misbehaviour during hearings 243
notice of hearings 178
obtaining information from third parties 166
orders 189196, 239
presiding over full bench 160
public hearings 180
questions of law 177
referral to magistrates 206
referral to members of Federal Commission 207
representation of parties 157
representative proceedings 104
settlement 170
variation or revocation of procedural orders 197
waiver of compliance 152
witness summonses 184, 240
110111, 271
Former employees
Grievances See Workplace grievances
Holidays See Annual leave; Public holidays
17
Hours of work
147
Immunity provisions
11
Indexation
114
Industrial disputes
Industrial organisations
See Recognised organisations
9
Industries
Industry sector orders
adoption of National Wage Case decisions 84
application to part-time employees 79
declaration of industry sectors 80
effect of 77
limits of power regarding public holidays 82
limits on application 78
making of 8084
matters to be considered by Tribunal 8788
regarding
conditions of employment 81
equal remuneration 8586
minimum wages 83, 273
transitional provisions 272273
variation of 8084
184
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Fair Employment Act 2000
Act No.
Subject Section
4, 11, 24, 78, 102
Ineligible employees
Information services officers
appointment 214
as enforcement officers 245
identity cards 215
offences against 234237
police assistance to 216
powers in general 217
powers of entry and inspection 218221
search warrants 222224
Infringement notices
definitions 245
enforcement of infringement penalty 253
form of 247
payment of penalties 248, 250251
service of 246
withdrawal 249
Inspection powers
information services officers 220221, 234
recognised organisations 225229, 238
Tribunal officials 153
Leave
adoption leave 3335, 3944
annual leave 2024
bereavement leave 3132
carer's leave 2528, 30
long service leave 4570, 269
maternity leave 3337, 4044, 52
parental leave 3344, 52
paternity leave 3335, 38, 4044,
52
personal leave 2530, 52
sick leave 2529
Long service leave
casual employees 5355
continuity of service 5153
death of employee before leave taken 65
definition of "employer" 48
employees not covered by Ch 2, Pt 1, Div 8 57
entitlements 4547
exempt employers 57
holidays occurring during leave 62
interruptions in period of employment 52
leave in advance 63
meaning of "continuous employment" 51
meaning of "one employer" 4950
meaning of "ordinary pay" 56
offences 67
185
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Fair Employment Act 2000
Act No.
Subject Section
pay increases while on leave 61
payment of 55, 56, 60, 6465,
70
prohibition on payments in lieu 66
records 69
splitting of leave period 59
taking of 54, 58, 59, 63
termination of employment before leave taken 64
transitional provisions 269
void provisions in contracts of employment 68
Magistrates' Court - Proceedings
bringing of prosecutions 252, 255256
conduct of agents imputed to corporations 257
jurisdiction of Industrial Division 254
recovery of money owed 259260
reverse onus of proof 258
3337, 4044, 52
Maternity leave
Offences
against information services officers 234237
against representatives of recognised organisations 238
against Tribunal 239243
attempting, aiding, inducing contraventions 244
by employers 15, 77
by representatives of recognised organisations 238
infringement notices 245253
proceedings in Magistrates' Court 252, 254260
8
Outworkers
3344, 52
Parental leave
Part-time employees
application of industry sector orders to 79
application of minimum conditions to 16
bereavement leave 31
definition 10
3335, 38, 4044,
Paternity leave
52
Pay See Remuneration
248, 250251, 253
Penalties
2530, 52
Personal leave
Proceedings
See Fair Employment Tribunal - Proceedings;
Magistrates' Court - Proceedings
1819, 82
Public holidays
Recognised organisations
entry and inspection powers of representatives 225229
offences by and against representatives 238
recognition of 261
victimisation by 230233
186
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Fair Employment Act 2000
Act No.
Subject Section
267, 274
Regulations
Remuneration
employees of sub-contractors 9395
minimum wages 83, 273
National Wage Case decisions 84
equal remuneration 8586
payment of 8995
principal contractors' liability for 9395
268
Repeals
202, Sch. 2
Rules
Salaries See Remuneration
222224
Search warrants
Self-incrimination
protection against 236
263265
Service of documents
2529
Sick leave
9395
Subcontractors
23, 64, 7173
Termination of employment
268275
Transitional provisions
Tribunal See Fair Employment Tribunal
230233
Victimisation
Wages See Remuneration
Workplace grievances
applications to Tribunal for resolution 102104, 163164
conciliation 106, 171175
definition 101
interim code of practice 266, Sch. 1
109
jurisdiction of VCAT (Fair Trading Act 1999)
mediation 106, 171175
transitional provisions 270
Tribunal's role and powers in resolving 106109
See also Fair Employment Tribunal - Proceedings
187
541149B.A1-17/11/2000 BILL LA AS SENT 17/11/2000
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