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This is a Bill, not an Act. For current law, see the Acts databases.
Western Australia
Contractual Benefits Bill 2007
CONTENTS
Part 1 -- Preliminary
1. Short title 2
2. Commencement 2
3. Terms used in this Act 2
Part 2 -- Claims in respect of
contractual benefits
4. Jurisdiction of IR Commission 5
5. Constitution of IR Commission 5
6. Referral of claim 5
7. Parties to proceedings 6
8. Applied provisions of IR Act 6
9. Conciliation 8
10. Compulsory attendance at conciliation 9
11. Settlement of claim or part of claim 10
12. Determination of claim where no resolution by
conciliation 10
13. Costs 11
14. Claims on behalf of government officers 11
15. Enforcement of orders in industrial magistrate's
court 12
16. Effect of other proceedings 13
17. Transfer of claim 13
18. Act does not derogate from IR Act 14
Part 3 -- Regulations
19. Regulations 15
240--1 page i
Contractual Benefits Bill 2007
Contents
Part 4 -- Consequential amendments
Division 1 -- Amendments to Industrial
Relations Act 1979
20. The Act amended 16
21. Section 81CA amended 16
Division 2 -- Amendments to Occupational
Safety and Health Act 1984
22. The Act amended 16
23. Section 51K amended 16
Defined Terms
page ii
Western Australia
LEGISLATIVE ASSEMBLY
Contractual Benefits Bill 2007
A Bill for
An Act to --
· confer jurisdiction on The Western Australian Industrial
Relations Commission to determine claims by employees of
constitutional corporations; and
· amend the Industrial Relations Act 1979; and
· amend the Occupational Safety and Health Act 1984.
The Parliament of Western Australia enacts as follows:
page 1
Contractual Benefits Bill 2007
Part 1 Preliminary
s. 1
Part 1 -- Preliminary
1. Short title
This is the Contractual Benefits Act 2007.
2. Commencement
5 This Act comes into operation as follows:
(a) sections 1 and 2 -- on the day on which this Act
receives the Royal Assent;
(b) the rest of the Act -- on a day fixed by proclamation,
and different days may be fixed for different provisions.
10 3. Terms used in this Act
(1) In this Act --
"Arbitrator" means the IR Commission constituted by a public
service arbitrator under the IR Act Part IIA Division 2;
"claim" means a claim referred under section 6;
15 "commissioner" means a commissioner appointed under the
IR Act and includes the Chief Commissioner, the Senior
Commissioner and an acting commissioner under that Act;
"Commonwealth instrument" means --
(a) a pre-reform award as defined in the Workplace
20 Relations Act section 4;
(b) an award made under the Workplace Relations Act
section 539;
(c) a notional agreement preserving State awards as
defined in the Workplace Relations Act Schedule 8
25 clause 1;
(d) a transitional award as defined in the Workplace
Relations Act Schedule 6 clause 2;
(e) a workplace agreement as defined in the Workplace
Relations Act section 4;
page 2
Contractual Benefits Bill 2007
Preliminary Part 1
s. 3
(f) a pre-reform certified agreement as defined in the
Workplace Relations Act Schedule 7 clause 1;
(g) a pre-reform AWA as defined in the Workplace
Relations Act Schedule 7 clause 1;
5 (h) a preserved State agreement as defined in the
Workplace Relations Act Schedule 8 clause 1;
(i) a workplace determination made under the
Workplace Relations Act Part 9 Division 8;
(j) the Australian Fair Pay and Conditions Standard
10 within the meaning given to that term by the
Workplace Relations Act section 171(3);
(k) the APCS as defined in the Workplace Relations Act
section 178;
(l) any other instrument made under, or referred to in,
15 the Workplace Relations Act and prescribed under
the IR Act section 113 for the purposes of this
definition;
"contractual benefit" means a benefit to which an employee is
entitled under a contract of employment whether --
20 (a) as included in the contract; or
(b) as an implied condition of employment under the
Minimum Conditions of Employment Act 1993 or as
otherwise implied in the contract,
but does not include a benefit to which an employee is
25 entitled under a Commonwealth instrument;
"employee" has the meaning given in the Workplace Relations
Act section 5(1) but does not include a government officer;
"employer" has the meaning given in paragraph (a) of the
definition of "employer" in the Workplace Relations Act
30 section 6(1);
"employment" has the meaning given in the Workplace
Relations Act section 7;
page 3
Contractual Benefits Bill 2007
Part 1 Preliminary
s. 3
"government officer" has the meaning given in the IR Act
section 80C(1);
"industrial matter" has the meaning given in the IR Act
section 7;
5 "IR Act" means the Industrial Relations Act 1979;
"IR Commission" means The Western Australian Industrial
Relations Commission continued and constituted under the
IR Act;
"Workplace Relations Act" means the Workplace Relations
10 Act 1996 of the Commonwealth.
(2) A reference in this Act to an employee or employer includes a
reference to a former employee or former employer.
(3) For the purposes of this Act, if a person ("the principal") --
(a) is a corporation to which section 51(xx) of the
15 Constitution of the Commonwealth applies; and
(b) engages a person, or a group of persons, under a contract
to personally give a performance as, or as part of,
musical, theatrical, dance or comic entertainment,
the principal is to be regarded as the employer of the person, or
20 each person in the group.
page 4
Contractual Benefits Bill 2007
Claims in respect of contractual benefits Part 2
s. 4
Part 2 -- Claims in respect of contractual benefits
4. Jurisdiction of IR Commission
(1) The IR Commission has jurisdiction to hear and determine
claims referred to it under section 6.
5 (2) Without limiting the functions of the IR Commission under this
Act and subject to the provisions of this Act, the IR
Commission --
(a) has the same authority to enquire into and deal with a
claim as it has in relation to an industrial matter under
10 the IR Act section 23(1); and
(b) may hear and determine a claim as if the claim were a
claim referred to the IR Commission under the IR Act
section 28A.
5. Constitution of IR Commission
15 For the purposes of this Act, the IR Commission is to be
constituted by a single commissioner.
6. Referral of claim
(1) Subject to subsections (2) and (3), an employee may refer to the
IR Commission under this section a claim that the employee has
20 not been allowed a contractual benefit by his or her employer.
(2) An employee cannot refer to the IR Commission a claim in
respect of a contractual benefit to which the employee is entitled
as an implied condition of employment under the Minimum
Conditions of Employment Act 1993 (a "denied MCE benefit")
25 unless the employee also refers to the IR Commission a claim in
respect of a contractual benefit to which the employee is entitled
under the same contract of employment that is not a denied
MCE benefit.
(3) A claim cannot be referred to the IR Commission under this
30 section if --
page 5
Contractual Benefits Bill 2007
Part 2 Claims in respect of contractual benefits
s. 7
(a) the refusal or failure to allow the employee the
contractual benefit occurred --
(i) if the claim is not an industrial matter -- before
the commencement of this section; or
5 (ii) if the claim is an industrial matter -- before
27 March 2006;
or
(b) 6 years have elapsed since the employer refused or
failed to allow the contractual benefit.
10 (4) The employee must serve a copy of the claim on the employer.
7. Parties to proceedings
Subject to the IR Act section 27(1)(j) (as applied by
section 8(1)(c)) the parties to proceedings pursuant to a claim
are --
15 (a) the employee who referred the claim; and
(b) the employer on whom or which a copy of the claim is
served.
8. Applied provisions of IR Act
(1) The following provisions (the "applied provisions") of the
20 IR Act apply to and in relation to the performance of functions
conferred on the IR Commission under this Act --
(a) section 22B;
(b) section 26(1)(a) and (b), (2) and (3);
(c) section 27;
25 (d) section 28;
(e) section 30;
(f) section 31(1), (2), (3), (5) and (6);
(g) section 32A;
(h) section 33;
page 6
Contractual Benefits Bill 2007
Claims in respect of contractual benefits Part 2
s. 8
(i) section 34;
(j) section 35;
(k) section 36;
(l) section 49(1), (2), (2a) and (3) to (12);
5 (m) section 90;
(n) section 91;
(o) section 92.
(2) The IR Act sections 3, 16, 16A, 17 and 104 apply to and in
relation to this Act as if a reference in those sections to "this
10 Act" included a reference to this Act.
(3) The applied provisions and the provisions referred to in
subsection (2) have effect --
(a) subject to the provisions of this Act; and
(b) with the modifications that are provided for in
15 subsection (4); and
(c) for the provisions referred to in subsection (1)(a) to (k),
with any other modifications that the IR Commission
determines to be necessary or appropriate.
(4) For the purposes of subsection (1) --
20 (a) the IR Act section 31(1) has effect as if paragraph (c)
were deleted and the following paragraph were inserted
instead --
"
(c) by a legal practitioner;
25 ";
and
(b) the IR Act section 33(6) has effect as if "section 44"
were deleted and the following inserted instead --
" the Contractual Benefits Act 2007 section 10 ";
30 and
page 7
Contractual Benefits Bill 2007
Part 2 Claims in respect of contractual benefits
s. 9
(c) the IR Act section 90(1) has effect as if paragraph (a)
were deleted and the following paragraph were inserted
instead --
"
5 (a) on the ground that the decision is in excess of
jurisdiction;
".
9. Conciliation
(1) Subject to section 12(1), the IR Commission must endeavour to
10 resolve a claim by conciliation.
(2) In endeavouring to resolve a claim by conciliation the IR
Commission --
(a) must do all such things as appear to it to be right and
proper to assist the parties to reach agreement on terms
15 for the settlement of the claim; and
(b) for that purpose may --
(i) arrange conferences of the parties or their
representatives presided over by the IR
Commission; and
20 (ii) arrange for the parties or their representatives to
confer amongst themselves at a conference at
which the IR Commission is not present; and
(iii) otherwise encourage the parties to exchange or
divulge attitudes or information that in the
25 opinion of the IR Commission will assist in the
settlement of the claim.
(3) The IR Commission may give any direction or make any order
or declaration that the IR Commission thinks expedient for the
purposes of this section.
30 (4) If the IR Commission gives or makes a direction, order or
declaration under subsection (3) the IR Commission must --
page 8
Contractual Benefits Bill 2007
Claims in respect of contractual benefits Part 2
s. 10
(a) if it is given or made orally, reduce the direction, order
or declaration to writing as soon as is practicable; and
(b) make the text of the direction, order or declaration
available to the parties as soon as is practicable after it is
5 given or made.
(5) A direction, order or declaration made or given under
subsection (3) binds only the parties to the relevant conciliation
proceeding.
(6) A conciliation proceeding must be held in private and only
10 persons specified by the IR Commission, or agreed to by the
parties, may be present.
(7) If the parties request the IR Commission to make
recommendations about particular aspects of the claim about
which they are unable to reach agreement, the IR Commission
15 may make recommendations about those aspects of the claim.
(8) A direction, order or declaration given or made under
subsection (3) is enforceable under the IR Act section 84A as if
it were given or made under the IR Act section 32.
10. Compulsory attendance at conciliation
20 (1) Subject to this section, the IR Commission may summon any
person to attend, at a time and place specified in the summons,
at conciliation proceedings under section 9.
(2) A summons under this section --
(a) may be given in the manner prescribed by regulations
25 made under the IR Act section 113; and
(b) when so given, is to be taken, in any proceedings
relating to the summons, to have been served on the
person to whom it is directed unless that person, in those
proceedings, satisfies the IR Commission or the Full
30 Bench (as defined in the IR Act section 7(1)), as the case
may be, that he or she did not receive the summons.
page 9
Contractual Benefits Bill 2007
Part 2 Claims in respect of contractual benefits
s. 11
(3) Any person so summoned must, except for good cause, proof of
which is on that person, attend the conciliation proceedings at
the time and place specified in the summons and continue to
attend at that place as directed by the IR Commission.
5 (4) The requirement to attend imposed by subsection (3) is
enforceable in accordance with section 9(8) as if it were a
direction, order or declaration referred to in that provision.
11. Settlement of claim or part of claim
Where at conciliation under section 9 --
10 (a) agreement is reached between the parties in relation to
any aspect of the claim; and
(b) the parties consent to the making of an order under this
section,
the IR Commission may make an order in terms of that
15 agreement binding on the parties.
12. Determination of claim where no resolution by conciliation
(1) The IR Commission may hear and determine a claim if it is of
the opinion that --
(a) reasonable attempts to settle the claim by conciliation
20 have been, or are likely to be, unsuccessful; or
(b) although there has been no attempt to settle the claim by
conciliation, any attempt is likely to be unsuccessful.
(2) Subject to subsection (4), the IR Commission may, for the
hearing and determination of the claim, be constituted by a
25 commissioner who exercised conciliation powers in relation to
the claim.
(3) If the commissioner referred to in subsection (2) proposes to
constitute the IR Commission for the purpose mentioned in that
subsection, the commissioner must, at the conclusion of the
30 conciliation advise the parties of his or her intention to do so.
page 10
Contractual Benefits Bill 2007
Claims in respect of contractual benefits Part 2
s. 13
(4) If, before the hearing commences, a party objects to the
IR Commission being constituted as proposed under
subsection (3), the commissioner must not constitute the IR
Commission for the hearing and determination of the claim.
5 (5) The commissioner is not taken to have exercised conciliation
powers in relation to a claim merely because --
(a) the commissioner arranged for a conference of the
parties or their representatives to be presided over by the
commissioner, but the conference did not take place or
10 was not presided over by the commissioner; or
(b) the commissioner arranged for the parties or their
representatives to confer among themselves at a
conference at which the commissioner was not present.
13. Costs
15 Despite the IR Act section 27(1)(c) (as applied by
section 8(1)(c)), on hearing and determining a claim the
IR Commission may make an order giving costs to any party to
the proceedings for the services of a legal practitioner or agent
of that party if, in the opinion of the IR Commission, the
20 proceedings were frivolously or vexatiously instituted or
defended, as the case requires, by the party against whom or
which the order is made.
14. Claims on behalf of government officers
(1) By this section the Arbitrator has jurisdiction to enquire into and
25 deal with a claim that may be made under this section.
(2) Subject to subsections (3) and (4), a person who can refer an
industrial matter under the IR Act section 80F(1) may refer to
the Arbitrator under this section a claim that a government
officer has not been allowed a contractual benefit by his or her
30 employer.
(3) A claim in respect of a contractual benefit cannot be referred
under this section unless the claim is an industrial matter.
page 11
Contractual Benefits Bill 2007
Part 2 Claims in respect of contractual benefits
s. 15
(4) A claim in respect of a contractual benefit to which a
government officer is entitled as an implied condition of
employment under the Minimum Conditions of Employment
Act 1993 (a "denied MCE benefit") cannot be referred under
5 this section unless the claimant also refers a claim in respect of
a contractual benefit to which the government officer is entitled
under the same contract of employment that is not a denied
MCE benefit.
(5) A claim cannot be referred under this section if --
10 (a) the refusal or failure to allow the government officer the
contractual benefit occurred before 27 March 2006;
or
(b) 6 years have elapsed since the employer refused or
failed to allow the contractual benefit.
15 (6) In relation to a claim referred under this section the Arbitrator
has all of the functions he would have if the claim were an
industrial matter referred to the Arbitrator under the IR Act
section 80E, and the provisions of the IR Act apply accordingly.
15. Enforcement of orders in industrial magistrate's court
20 (1) In this section --
"order" means --
(a) an order made by the IR Commission under
section 11, 12 or 13; or
(b) an order made by the Arbitrator under section 14.
25 (2) An order is an instrument to which the IR Act section 83
applies.
(3) For the purposes of subsection (2), the IR Act sections 82A, 83,
83A, 83C, 83F, 84, 90, 91 and 92 have effect --
(a) with the modifications that are provided for in
30 subsection (4); and
page 12
Contractual Benefits Bill 2007
Claims in respect of contractual benefits Part 2
s. 16
(b) for sections 82A, 83, 83A, 83C and 83F, with any other
modifications that the industrial magistrate's court
determines to be necessary or appropriate.
(4) For the purposes of subsection (2) the IR Act section 83(1) has
5 effect as if paragraphs (b) to (f) were deleted and the following
paragraphs were inserted instead --
"
(b) a party to the proceeding in respect of which
the order was made;
10 (c) an organisation --
(i) that is registered under the IR Act
Part II Division 4; or
(ii) as defined in the Workplace Relations
Act section 4(1),
15 in which the employee in relation to whom the
order is made is eligible to be enrolled as a
member or an association that represents such
an organisation.
".
20 16. Effect of other proceedings
The IR Commission must not deal with a claim if proceedings
in respect of the subject matter of the claim have already been
commenced under another law of the State or Commonwealth
unless those proceedings --
25 (a) have been discontinued; or
(b) have failed for want of jurisdiction.
17. Transfer of claim
(1) If the IR Commission decides that it has jurisdiction under the
IR Act to determine a claim made under this Act and that it
30 would be appropriate to do so in the circumstances, the
IR Commission may order that the claim be dealt with under
that Act.
page 13
Contractual Benefits Bill 2007
Part 2 Claims in respect of contractual benefits
s. 18
(2) If the IR Commission makes an order under subsection (1) in
relation to a claim --
(a) the claim is taken to have been referred to it under the
IR Act; and
5 (b) any proceedings under this Act in relation to the claim
are taken to be proceedings under the IR Act.
18. Act does not derogate from IR Act
The functions conferred on the IR Commission under this Act
are in addition to, and do not derogate from, any function of the
10 IR Commission under the IR Act.
page 14
Contractual Benefits Bill 2007
Regulations Part 3
s. 19
Part 3 -- Regulations
19. Regulations
(1) Regulations may be made under the IR Act section 113
prescribing any matter that is required or permitted by this Act
5 to be prescribed, or that is necessary or convenient to be
prescribed for giving effect to the purposes of this Act.
(2) Without limiting subsection (1), regulations may be made under
the IR Act regulating the practice and procedure to be followed
in relation to the referral, bringing, hearing and determination of
10 claims and appeals under this Act.
page 15
Contractual Benefits Bill 2007
Part 4 Consequential amendments
Division 1 Amendments to Industrial Relations Act 1979
s. 20
Part 4 -- Consequential amendments
Division 1 -- Amendments to Industrial Relations Act 1979
20. The Act amended
The amendments in this Division are to the Industrial Relations
5 Act 1979.
21. Section 81CA amended
Section 81CA(1) is amended in the definition of "general
jurisdiction" by inserting after paragraph (b) --
"
10 or
(c) section 15 of the Contractual Benefits
Act 2007;
".
Division 2 -- Amendments to Occupational Safety and Health
15 Act 1984
22. The Act amended
The amendments in this Division are to the Occupational Safety
and Health Act 1984.
23. Section 51K amended
20 Section 51K(4)(a) and "and" after it are deleted and the
following is inserted instead --
"
(a) an employee has referred to the Commission a
claim of the kind described in --
25 (i) section 28A of the Industrial Relations
Act 1979; or
page 16
Contractual Benefits Bill 2007
Consequential amendments Part 4
Amendments to Occupational Safety and Health Act 1984 Division 2
s. 23
(ii) section 6(1) of the Contractual Benefits
Act 2007;
and
".
5
page 17
Contractual Benefits Bill 2007
Defined Terms
Defined Terms
[This is a list of terms defined and the provisions where they are defined.
The list is not part of the law.]
Defined Term Provision(s)
applied provisions ....................................................................................... 8(1)
Arbitrator .................................................................................................... 3(1)
claim........................................................................................................... 3(1)
commissioner .............................................................................................. 3(1)
Commonwealth instrument.......................................................................... 3(1)
contractual benefit ....................................................................................... 3(1)
denied MCE benefit........................................................................... 6(2), 14(4)
employee..................................................................................................... 3(1)
employer ..................................................................................................... 3(1)
employment ................................................................................................ 3(1)
government officer ...................................................................................... 3(1)
industrial matter .......................................................................................... 3(1)
IR Act ......................................................................................................... 3(1)
IR Commission ........................................................................................... 3(1)
order ..........................................................................................................15(1)
the principal ................................................................................................ 3(3)
Workplace Relations Act ............................................................................. 3(1)
page 18
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