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Western Australia
Labour Relations Reform Bill 2002
CONTENTS
Part 1 -- Preliminary
1. Short title 2
2. Commencement 2
3. The Act amended 2
Part 2 -- Amendments to provide for
employer-employee agreements
Division 1 -- Principal amendments to the
Industrial Relations Act 1979
4. Part VID inserted 3
5. Schedules 4 and 5 inserted 70
Division 2 -- Amendments to the Industrial
Relations Act 1979 consequential on
Division 1
6. Section 7 amended 73
7. Section 29 amended 74
8. Section 49 amended 74
9. Section 80E amended 75
10. Section 80F amended 75
11. Section 80R amended 76
12. Section 80S amended 76
13. Section 81A amended 77
14. Section 81CA amended 77
15. Section 103 amended 77
Division 3 -- Amendments to other Acts
consequential on Division 1
16. Coal Industry Tribunal of Western Australia Act 1992
amended 77
page i
100 -- 3
Labour Relations Reform Bill 2002
Contents
17. Conservation and Land Management Act 1984
amended 78
18. Forest Products Act 2000 amended 78
19. Grain Marketing Act 1975 amended 78
20. Long Service Leave Act 1958 amended 79
21. Marketing of Potatoes Act 1946 amended 79
22. Minimum Conditions of Employment Act 1993
amended 80
23. Port Authorities Act 1999 amended 81
24. Public and Bank Holidays Act 1972 amended 82
25. Public Sector Management Act 1994 amended 82
26. Zoological Parks Authority Act 2001 amended 84
27. Inserting reference to "Part VID of the Industrial
Relations Act 1979" in various Acts 84
Part 3 -- Amendments to Workplace
Agreements Act 1993, transitional
provisions and consequential
amendments to other Acts
Division 1 -- Amendments to Workplace
Agreements Act 1993
28. The Act amended 85
29. Long title replaced 85
30. Section 3 amended 86
31. Part 1A inserted 86
32. Section 8 replaced 93
33. Section 9 replaced 93
34. Section 10 amended 94
35. Section 11 repealed 94
36. Section 12 amended 94
37. Section 15 amended 94
38. Section 16 repealed 95
39. Section 18 amended 95
40. Sections 19 and 20 repealed 95
41. Section 21 amended 95
42. Section 23 repealed 95
43. Section 24 amended 95
44. Section 25 repealed 95
45. Part 2 Division 4 heading amended 96
page ii
Labour Relations Reform Bill 2002
Contents
46. Sections 26 and 27 repealed 96
47. Section 28 amended 96
48. Sections 29 to 38 repealed 96
49. Section 39 amended 96
50. Section 40 amended 97
51. Part 2A repealed 98
52. Section 44 amended 98
53. Section 45 amended 98
54. Section 48 amended 98
55. Part 5 Division 1 heading amended 98
56. Section 49 amended 99
57. Section 50 amended 99
58. Section 51 replaced 99
59. Section 52 repealed 100
60. Section 55 amended 100
61. Section 56 amended 100
62. Section 57 amended 100
63. Section 58 replaced 101
64. Section 60 amended 101
65. Section 61 amended 101
66. Section 66 amended 102
67. Section 67 amended 102
68. Section 73 repealed 102
69. Parts 6 and 7 repealed 102
70. Section 101 repealed 102
71. Section 101A amended 102
72. Schedule 2 repealed 102
Division 2 -- Transitional provisions for
amendments to the Workplace Agreements
Act 1993 made by Division 1
Subdivision 1 -- Preliminary
73. Definitions 103
74. Interpretation Act 1984 not affected 103
Subdivision 2 -- Agreements under principal Act
75. Saving of addition of parties under section 23 103
76. Provision for unregistered collective workplace
agreements 103
77. Saving for unregistered agreements under
section 24(1) 104
page iii
Labour Relations Reform Bill 2002
Contents
Subdivision 3 -- Registration
78. Registrar to take possession of register, documents
and records 104
79. Registration not affected by repeal 105
80. Continuation of status as excluded party 105
81. Review under section 34 discontinued 105
82. Appeal under section 35 discontinued 105
Subdivision 4 -- Remedies and offences
83. Recovery of amounts where section 4E or 4G applies 106
84. Proceedings in progress under repealed section 51 106
85. Amounts may be recovered under repealed section 52 107
86. Proceedings for offences 107
Subdivision 5 -- Provisions relating to the
Commissioner
87. Definitions 108
88. References to Commissioner in agreements and
instruments 108
89. Proceedings and remedies 108
90. Other things in progress 109
91. Annual report for part of year 109
92. Completion of things commenced 109
Subdivision 6 -- Miscellaneous
93. Offender may be punished despite repeal of section 25 110
94. Tribunal's arbitration function under repealed
section 40E(b) 110
95. Immunity not affected 110
96. Offshore application not affected 110
97. Powers in relation to transitional provisions 111
Division 3 -- Transitional provisions for the expiry
of the Workplace Agreements Act 1993
98. Definitions 112
99. Interpretation Act 1984 not affected 112
100. Effect of certain provisions preserved 112
101. Offences under expired Act 112
102. Application of enforcement provisions 112
103. Keeping of records 113
104. Access to records 114
105. Consequential amendment of other laws 114
106. Powers in relation to transitional provisions 115
page iv
Labour Relations Reform Bill 2002
Contents
Division 4 -- Consequential amendments and
related transitional provisions
107. Coal Industry Tribunal of Western Australia Act 1992
amended 116
108. Further amendment to the Coal Industry Tribunal of
Western Australia Act 1992 as from the expiry of the
Workplace Agreements Act 1993 117
109. Constitution Acts Amendment Act 1899 amended 117
110. Financial Administration and Audit Act 1985
amended 117
111. Industrial Relations Act 1979 amended 117
112. Transitional provisions relating to section 111(4) 118
113. Further amendments to the Industrial Relations
Act 1979 as from the expiry of the Workplace
Agreements Act 1993 and transitional provision 118
Part 4 -- Amendments about awards
114. Section 6 amended 120
115. Section 29A amended 120
116. Part II Division 2A heading and section 36A inserted 122
117. Section 38 amended and a savings provision 123
118. Sections 40A and 40B inserted 124
119. Part II Division 2C, 2D and 2E headings inserted and
Part II Division 2A heading deleted 126
120. Sections 49A and 49C repealed and inserted as
sections 48A and 48B 126
121. Consequential amendments to section 22A, 25, 80G
and 80W 127
Part 5 -- Amendments about the
Industrial Relations Commission
and the Industrial Appeal Court
122. Section 27 amended 128
123. Section 32A inserted 128
124. Section 34 amended 129
125. Section 49 amended 129
126. Section 90 amended 130
page v
Labour Relations Reform Bill 2002
Contents
Part 6 -- Amendments about industrial
agreements and good faith
bargaining
127. Section 6 amended 131
128. Section 7 amended 132
129. Section 26 amended 132
130. Part II Division 2B heading and section 40C inserted 133
131. Section 41 amended 133
132. Section 41A replaced 134
133. Sections 42 to 42M inserted 135
134. Section 84A amended 147
135. Section 93 amended 147
136. Section 112A amended 147
Part 7 -- Amendments about unfair
dismissal and employment issues
137. Section 23 amended 149
138. Section 23A replaced by sections 23A and 23B and
transitional provision 149
139. Section 29 amended 153
140. Section 29AA inserted and a transitional provision 154
141. Section 44 amended and a transitional provision 155
Part 8 -- Amendments about right of
entry, record keeping and
inspection of records
142. Section 7 amended 157
143. Section 23 amended 157
144. Section 41 amended 158
145. Sections 49AB and 49B repealed 158
146. Part II Divisions 2F and 2G inserted and a transitional
provision 158
147. Section 98 amended 168
148. Section 102 amended 168
Part 9 -- Amendments about procedure
and enforcement
149. Section 7 amended 169
page vi
Labour Relations Reform Bill 2002
Contents
150. Section 22B inserted 169
151. Section 44 amended 169
152. Section 70 amended and a transitional provision 170
153. Section 80L amended 170
154. Section 82 amended 170
155. Section 83 repealed and sections 83, 83A, 83B and
83C inserted instead and transitional provisions 171
156. Section 83A amended 178
157. Sections 83E and 83F inserted 178
158. Section 84A amended 181
159. Section 102 amended 181
160. Consequential amendments to sections 81A, 81CA,
82A, 93, 102A and 103 181
161. Section 96 inserted 182
162. Section 113 amended 185
Part 10 -- Amendments about
minimum weekly rates of pay and
other conditions of employment
Division 1 -- Amendments to the Minimum
Conditions of Employment Act 1993 in
relation to minimum weekly rates of pay and
other minimum conditions of employment
163. The Act amended 187
164. Section 3 amended 187
165. Section 8 amended and savings provisions as to
certain existing section 8 agreements 188
166. Section 9 amended 189
167. Part 3 replaced 189
168. Transitional provisions for minimum weekly rates of
pay 192
169. Section 19 amended and a savings provision 192
170. Section 20A inserted 193
171. Section 21 replaced 194
172. Section 22 replaced 194
173. Section 23 amended and a savings provision 195
174. Section 40 amended 195
175. Section 43 amended 196
176. Section 44 amended 196
page vii
Labour Relations Reform Bill 2002
Contents
177. Miscellaneous amendments as to "IR Act" 196
Division 2 -- Amendments to the Industrial
Relations Act 1979 in relation to minimum
weekly rates of pay
178. Section 7 amended 197
179. Section 50 amended 197
180. Section 51B inserted 198
181. Part II Division 3A inserted 198
182. Miscellaneous amendments as to "MCE Act" 206
Division 3 -- Consequential amendments in
relation to minimum weekly rates of pay
183. Equal Opportunity Act 1984 amended 206
184. Vocational Education and Training Act 1996
amended 206
Part 11 -- Other amendments
185. Section 7 amended 208
186. Section 20 amended and transitional and savings
provisions 210
187. Section 32 amended 211
188. Section 37A repealed 212
189. Section 51 amended 212
190. Sections 7, 47, 50, 55, 72A and 93 and Schedule 1
amended relating to publication in the Industrial
Gazette 213
191. Amendments to the Act and the Labour Relations
Legislation Amendment Act 1997 about collection of
union subscriptions 215
192. Amendments about duties of employees of
organizations 216
193. Amendments about Federal award coverage 216
194. Amendments about pre-strike ballots 217
195. Amendments about political expenditure by
organizations 217
Schedule 1 -- Transitional minimum
weekly rates of pay 218
1. Interpretation 218
page viii
Labour Relations Reform Bill 2002
Contents
2. Minimum weekly rate of pay for employees 21 or
more years of age 218
3. Minimum weekly rate of pay for employees less than
21 years of age 218
4. Minimum weekly rate of pay for apprentices and
trainees 219
page ix
Western Australia
LEGISLATIVE COUNCIL
(Transmitted from the Legislative Assembly)
(As amended during consideration in detail)
Labour Relations Reform Bill 2002
A Bill for
An Act to --
· amend the Industrial Relations Act 1979;
· amend the Workplace Agreements Act 1993 to provide for the
phasing out and expiry of that Act;
· amend the Minimum Conditions of Employment Act 1993; and
· make consequential amendments to other written laws,
and for related purposes.
The Parliament of Western Australia enacts as follows:
page 1
Labour Relations Reform Bill 2002
Part 1 Preliminary
s. 1
Part 1 -- Preliminary
1. Short title
This Act may be cited as the Labour Relations Reform
Act 2002.
5 2. Commencement
(1) Subject to subsections (3) and (4), this Act comes into operation
on a day fixed by proclamation.
(2) Different days may be fixed under subsection (1) for different
provisions.
10 (3) Section 111(6) of this Act comes into operation on the day on
which it receives the Royal Assent.
(4) Part 3 Division 3 and sections 108 and 113 come into operation
on the expiry of the Workplace Agreements Act 1993 as
provided for by section 4A of that Act.
15 3. The Act amended
The amendments in this Act are to the Industrial Relations
Act 1979* unless otherwise indicated.
[* Reprinted as at 4 February 2000.
For subsequent amendments see 2000 Index to Legislation of
20 Western Australia, Table 1, p. 213, and Act No. 10 of 2001.]
page 2
Labour Relations Reform Bill 2002
Amendments to provide for employer-employee agreements Part 2
Principal amendments to the Industrial Relations Act 1979 Division 1
s. 4
Part 2 -- Amendments to provide for
employer-employee agreements
Division 1 -- Principal amendments to the Industrial
Relations Act 1979
5 4. Part VID inserted
Before Part VII the following Part is inserted --
"
Part VID -- Employer-employee agreements
Division 1 -- Preliminary
10 97U. Interpretation
(1) In this Part, unless the contrary intention appears --
"award", except in section 97UG(2)(c), Division 6
Subdivision 1 and sections 97YA(1)(a) and
97YB(2)(a), includes --
15 (a) an industrial agreement or order of the
Commission under this Act; and
(b) an award under the Coal Industry Tribunal
of Western Australia Act 1992, including any
order under that Act and any agreement that
20 comes within section 12(4) or 17(1) of that
Act;
"bargaining agent" means a person appointed as a
bargaining agent under section 97UJ;
"cancellation agreement" means an agreement under
25 section 97UV(1);
"EEA dispute provisions" means the provisions
included in an EEA for the purposes of
section 97UN;
page 3
Labour Relations Reform Bill 2002
Part 2 Amendments to provide for employer-employee agreements
Division 1 Principal amendments to the Industrial Relations Act 1979
s. 4
"employment services for persons with disabilities"
means employment services --
(a) that are provided for persons with disabilities
who are eligible for the Supported Wage
5 System; and
(b) for which, at the relevant time, financial
assistance has been granted under the
Disability Services Act 1986 of the
Commonwealth;
10 "existing employee" means an employee --
(a) who signs; or
(b) on whose behalf a representative signs,
an EEA after commencing the employment to
which the EEA relates;
15 "new employee" means an employee --
(a) who signs; or
(b) on whose behalf a representative signs,
an EEA before, or at the time of, the
commencement of the employment to which the
20 EEA relates;
"no-disadvantage test" means the no-disadvantage
test provided for by Division 6 Subdivision 1;
"party", in relation to an EEA --
(a) means the employer or employee; and
25 (b) in the provisions mentioned in
subsection (4), if the employee is a
represented person, also means his or her
representative;
"regulations" means regulations made by the
30 Governor under section 97YJ;
page 4
Labour Relations Reform Bill 2002
Amendments to provide for employer-employee agreements Part 2
Principal amendments to the Industrial Relations Act 1979 Division 1
s. 4
"relevant industrial authority" means --
(a) where the EEA relates to employment as a
Government officer to whom Part IIA
Division 2 applies, the Commission
5 constituted by a Public Service Arbitrator
under that Division;
(b) where the EEA relates to employment as a
railway officer to whom Part IIA Division 3
applies, the Commission constituted by the
10 Railways Classification Board under that
Division; and
(c) subject to paragraphs (a) and (b), the
Commission constituted by a Commissioner;
"section 97UM signatory" means a person who has
15 signed an EEA for the purposes of
section 97UM(2);
"supported wage provisions" means provisions that
enable an employer to pay an employee with a
disability a wage that is related to the employee's
20 productive capacity;
"Supported Wage System" means the scheme
established by the Commonwealth Government to
promote the employment of persons whose
productive capacity is reduced because of a
25 disability.
(2) References in this Part to "employer" and "employee"
include, where the context so requires, a person who
will be an employer or employee if a proposed EEA
takes effect.
30 (3) Subsection (2) is not to be taken as showing that the
terms "employer" and "employee", as defined in
section 7(1), do not also include a prospective
employer and a prospective employee for the purposes
page 5
Labour Relations Reform Bill 2002
Part 2 Amendments to provide for employer-employee agreements
Division 1 Principal amendments to the Industrial Relations Act 1979
s. 4
of other provisions of this Act, including without
limitation the definition of "industrial matter".
(4) The provisions referred to in paragraph (b) of the
definition of "party" in subsection (1) are
5 sections 29(1a), 97UJ(4), 97UK(2), 97UL(3), 97UP,
97UY(1), 97VC, 97VD(2), 97VF(1), 97VG, 97VM(2),
97VN(2), 97VP(3), 97WG(1), 97WK(1) and (2) and
97WP(2).
Division 2 -- The making of an EEA
10 97UA. Employer and employee may make an EEA
A single employer and a single employee may make an
agreement, called an employer-employee agreement,
that deals with any industrial matter.
97UB. EEA may deal with post-employment matters
15 (1) An EEA may deal with rights and obligations that are
to take effect after the termination of employment
between the persons who, before the termination, were
the employer and the employee.
(2) The provisions of this Act and of the EEA concerned
20 apply in relation to the rights and obligations referred
to in subsection (1) even though the employment has
terminated.
97UC. Other provisions about making an EEA
(1) An EEA may be made before the commencement of
25 the employment.
(2) The ability of an employer and employee to make an
EEA extends to any employment referred to in
section 3(1).
page 6
Labour Relations Reform Bill 2002
Amendments to provide for employer-employee agreements Part 2
Principal amendments to the Industrial Relations Act 1979 Division 1
s. 4
(3) The matters that may be dealt with in EEAs made with
certain categories of employees are subject to the
restrictions in --
(a) section 99(2) of the Public Sector Management
5 Act 1994; and
(b) section 16(4a) of the Port Authorities Act 1999.
97UD. Making of EEA by person with a mental disability
(1) An EEA may be made for a represented person as an
employee by the person's representative.
10 (2) The EEA is to be made in the name of the represented
person as an employee but is to be signed on his or her
behalf by the representative.
(3) An EEA so made has effect as if --
(a) it were made by the represented person; and
15 (b) the represented person were of full legal
capacity.
97UE. Effect of EEA
(1) An EEA, while it has effect, operates to prevent from
extending to the employee any award that would
20 otherwise do so, including an award that comes into
operation after the EEA takes effect.
(2) An EEA, while it has effect, does not displace any
contract of employment between an employer and an
employee, but the EEA has effect --
25 (a) as if it formed part of that contract; and
(b) regardless of the provisions of that contract.
(3) The provisions of an EEA have effect subject to
section 5 of the MCE Act.
page 7
Labour Relations Reform Bill 2002
Part 2 Amendments to provide for employer-employee agreements
Division 1 Principal amendments to the Industrial Relations Act 1979
s. 4
97UF. EEA not to be made while industrial agreement in
operation
(1) An EEA in respect of the employment of an employee
cannot be made --
5 (a) during the term of an industrial agreement that
extends to that employee; or
(b) during any period when such an agreement is
continued in force by section 41(6).
(2) For the purposes of subsection (1), an EEA is to be
10 regarded as made when it has been signed by --
(a) the employer; and
(b) the employee or, where applicable, his or her
representative,
and, if section 97UM applies to the EEA, when it has
15 also been signed by a section 97UM signatory.
(3) Subsection (1) does not apply to an EEA if --
(a) the industrial agreement concerned does not
contain supported wage provisions; and
(b) employment under the EEA has been arranged
20 through an entity that provides employment
services for persons with disabilities.
(4) In this section --
"industrial agreement" includes any agreement that
comes within section 12(4) or 17(1) of the Coal
25 Industry Tribunal of Western Australia Act 1992.
97UG. Documents and information to be given to employee
before EEA signed
(1) An employer must not make an EEA with an employee
unless he or she has given a copy of certain
30 documents --
(a) to the employee; or
page 8
Labour Relations Reform Bill 2002
Amendments to provide for employer-employee agreements Part 2
Principal amendments to the Industrial Relations Act 1979 Division 1
s. 4
(b) if the employee is a represented person, to his
or her representative.
(2) The documents are --
(a) the proposed EEA;
5 (b) the information statement prescribed under
section 97UI; and
(c) any --
(i) award; or
(ii) relevant order as defined in
10 section 97VR,
that will extend to the employee if the EEA
does not take effect.
(3) It is sufficient for the purposes of subsections (1) and
(2)(c)(i) if the employer gives a document --
15 (a) containing a summary of the award approved
by the Registrar for the purposes of this section;
and
(b) having a statement at the head of the document
to the effect that it is a summary of the award
20 so approved.
(4) The documents must be given under subsection (1) --
(a) in the case of a new employee, not less than
5 days before the EEA is signed by the
employee or his or her representative, as the
25 case may be; or
(b) in the case of an existing employee, not less
than 14 days before the EEA is so signed.
(5) An employer must also comply with any regulations
prescribing requirements for the giving of information
30 or documents to an employee before an EEA is made.
page 9
Labour Relations Reform Bill 2002
Part 2 Amendments to provide for employer-employee agreements
Division 1 Principal amendments to the Industrial Relations Act 1979
s. 4
(6) A contravention of subsection (1) or (5) is not an
offence but will, under Schedule 4 clause 1(1)(d),
prevent the EEA from being in order for registration.
(7) In subsections (2)(c)(i) and (3) --
5 "award" includes --
(a) an enterprise order; and
(b) an award under the Coal Industry Tribunal
of Western Australia Act 1992.
97UH. Application of section 97UG if draft EEA amended
10 If --
(a) an employer has complied with section 97UG
in relation to a proposed EEA; and
(b) the proposed EEA is later amended, whether
once or more than once, before it is signed --
15 (i) by the employee or his or her
representative; and
(ii) if section 97UM applies to the EEA, by
a section 97UM signatory,
the employer is not required to comply with that
20 section again in relation to the proposed EEA unless
the employee in writing requests him or her to do so.
97UI. EEA information statement
(1) The Registrar is to prescribe, by order published in the
Gazette, a form of information statement that is to be
25 given to employees under section 97UG(2)(b).
(2) The form must include information about the following
matters --
(a) the effect of section 97UE;
(b) the employee's rights under section 97UJ in
30 relation to bargaining agents;
page 10
Labour Relations Reform Bill 2002
Amendments to provide for employer-employee agreements Part 2
Principal amendments to the Industrial Relations Act 1979 Division 1
s. 4
(c) the requirements of sections 97XZ, 97Y, 97YA,
97YB and 97YF; and
(d) the commencement and expiry of an EEA as
provided for by sections 97UQ, 97UR and
5 97US.
(3) The form may contain other information that the
Registrar considers should be included.
97UJ. Bargaining agents
(1) An employer or employee may, by instrument in
10 writing, appoint a person to be his or her bargaining
agent --
(a) for the negotiation and making of an EEA;
(b) in connection with the registration of an EEA;
(c) for the negotiation and making of a cancellation
15 agreement; or
(d) for the purpose of acting for him or her in
connection with any question, dispute or
difficulty that has arisen or may arise out of or
in the course of the employment.
20 (2) Any person may be appointed as a bargaining agent,
including an organization or association that is
registered under Part II Division 4.
(3) An appointment of a bargaining agent may be
terminated at any time by notice of termination given
25 in writing to the agent.
(4) A copy of an instrument of appointment or a notice of
termination must be given to the other party.
(5) For the purposes of section 77A of the Legal
Practitioners Act 1893 a bargaining agent is
30 authorised --
(a) to appear for a party in proceedings as
mentioned in section 97WJ; and
page 11
Labour Relations Reform Bill 2002
Part 2 Amendments to provide for employer-employee agreements
Division 1 Principal amendments to the Industrial Relations Act 1979
s. 4
(b) to provide advice and other services in
performing the functions referred to in
subsection (1).
(6) Subject to section 112A(1a)(c)(i), subsection (1)(d)
5 does not affect the requirement of that section that only
a person who is registered under that section may
appear as an agent under section 31, 81E or 91.
97UK. Prohibited conduct relating to bargaining agents
(1) An employer or employee or a representative must not
10 refuse to recognise a bargaining agent of the other
party if section 97UJ(4) has been complied with.
(2) An employer or employee or a representative must not
coerce or induce, or attempt to coerce or induce, the
other party --
15 (a) to appoint, or not to appoint, a particular person
as a bargaining agent; or
(b) to terminate the appointment of a bargaining
agent.
(3) A contravention of subsection (1) or (2) is not an
20 offence but those subsections are civil penalty
provisions for the purposes of section 83E.
Division 3 -- Form and content of EEA
97UL. Formalities
(1) An EEA must --
25 (a) be in writing;
(b) name the employer and employee who are
parties to it;
(c) specify whether the employment to which it
relates is full-time, part-time or casual; and
page 12
Labour Relations Reform Bill 2002
Amendments to provide for employer-employee agreements Part 2
Principal amendments to the Industrial Relations Act 1979 Division 1
s. 4
(d) be signed by --
(i) the employer; and
(ii) the employee, or where applicable, his
or her representative.
5 (2) An EEA may be signed on behalf of a body corporate
by an authorised officer, and need not be made under
its seal.
(3) The signature of --
(a) the employer; and
10 (b) the employee or, where applicable, his or her
representative,
must be witnessed by a person who has reached
18 years of age and is not a party to the EEA.
97UM. Additional formalities for EEA made with employee
15 under 18
(1) This section applies to an EEA made with a person as
the employee who --
(a) is under 18 years of age; and
(b) is not a represented person.
20 (2) For the purposes of this Act or any other law, the EEA
can only have effect if after it has been signed by the
employee it is also signed --
(a) by a person who is legally responsible for the
day to day care and welfare of the employee; or
25 (b) in circumstances prescribed by the regulations,
by a person who belongs to a class of persons
so prescribed.
(3) The signature of a person who signs an EEA under
subsection (2) must be witnessed by a person who has
30 reached 18 years of age and is not a party to the EEA.
page 13
Labour Relations Reform Bill 2002
Part 2 Amendments to provide for employer-employee agreements
Division 1 Principal amendments to the Industrial Relations Act 1979
s. 4
(4) Subject to subsections (2) and (3), an EEA to which
this section applies binds the employee as if he or she
were of full age.
97UN. EEA must provide for resolution of disputes
5 (1) An EEA must include provisions for the resolution of
any question, dispute or difficulty that arises out of or
in the course of the employment.
(2) EEA dispute provisions cannot confer jurisdiction on
an arbitrator, including a relevant industrial authority
10 acting under a provision mentioned in section 97UP, to
enforce an EEA by making an order or determination
that an industrial magistrate's court may make under
section 83.
(3) EEA dispute provisions have effect subject to
15 Division 8.
(4) The regulations may prescribe model provisions as a
guide to the kind of provisions that may be inserted in
an EEA for the purposes of subsection (1).
(5) An EEA that sets out the model provisions in the way
20 provided for by the regulations is to be taken to comply
with subsection (1).
97UO. What must be included in EEA dispute provisions
(1) EEA dispute provisions must, if section 97UP does not
apply --
25 (a) provide for --
(i) the referral to a single arbitrator of any
question, dispute or difficulty that arises
out of or in the course of the
employment; and
30 (ii) the manner in which the referral is to be
made;
page 14
Labour Relations Reform Bill 2002
Amendments to provide for employer-employee agreements Part 2
Principal amendments to the Industrial Relations Act 1979 Division 1
s. 4
(b) provide for the appointment of an arbitrator
by --
(i) naming the arbitrator, and if desired any
alternate arbitrator; or
5 (ii) setting out how an arbitrator is to be
appointed;
and
(c) specify the means for making any new
appointment that may be required.
10 (2) EEA dispute provisions must, including where
section 97UP applies --
(a) require the parties to confer together and make
a genuine attempt to settle any question, dispute
or difficulty that arises out of or in the course of
15 the employment;
(b) comply with any requirement of the regulations
that specifies any step, series of steps or process
that is to be part of the EEA dispute provisions;
(c) comply with any requirement of the regulations
20 that limits the time that the EEA dispute
provisions may allow for --
(i) doing any act;
(ii) taking any step or series of steps; or
(iii) completing any process,
25 specified in the regulations; and
(d) specify how any costs of an arbitration are to be
borne, which provision cannot make an
employee liable for more than the share of
those costs that is prescribed by the regulations
30 at the time when the EEA is made.
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97UP. Industrial authority may be specified as arbitrator
EEA dispute provisions may provide for a party to
refer to the relevant industrial authority, for arbitration
in accordance with section 97WI, any question, dispute
5 or difficulty that arises out of or in the course of the
employment.
Division 4 -- Commencement, duration and variation
97UQ. Commencement of EEA for new employee
(1) An EEA made with a new employee may take effect
10 before it is registered under Division 5, but under
section 97UZ will automatically terminate if it is not
lodged for registration as mentioned in that section.
(2) An EEA referred to in subsection (1) takes effect on --
(a) the day on which the employment commences; or
15 (b) a later day provided for in the EEA.
97UR. Commencement of EEA for existing employee
(1) An EEA made with an existing employee does not
have effect unless it is registered under Division 5.
(2) An EEA referred to in subsection (1) takes effect on --
20 (a) the day after the day on which it is registered
under Division 5; or
(b) a later day provided for in the EEA.
97US. Expiry
(1) An EEA must provide for the day on which it expires
25 which cannot be more than 3 years from and including
the day on which it takes effect under section 97UQ or
97UR.
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(2) The expiry of an EEA does not of itself terminate the
contract of employment between the employer and the
employee.
97UT. Employment conditions on expiry of EEA
5 (1) On the expiry of an EEA --
(a) any relevant award provisions extend to the
employee unless a new EEA then takes effect;
and
(b) to the extent that paragraph (a) does not apply,
10 the employment of the employee becomes
subject to a contract of employment containing
the same provisions as those of the EEA that
has expired other than --
(i) the provision specifying the term of the
15 EEA; and
(ii) the EEA dispute provisions.
(2) A contract referred to in subsection (1)(b) --
(a) has effect, and may be varied or terminated, as
if it were a contract entered into between the
20 employer and the employee; and
(b) has effect regardless of the provisions of any
contract of employment referred to in
section 97UE(2) between the employer and the
employee.
25 97UU. No power to vary an EEA
(1) The parties to an EEA cannot vary the provisions of the
EEA once it has been signed by --
(a) the employer; and
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(b) the employee or, where applicable, his or her
representative,
or, if section 97UM applies to the EEA, once it has
been signed by the employer, the employee and the
5 section 97UM signatory.
(2) Subsection (1) applies even though the EEA has not
taken effect.
(3) However, subsection (1) does not affect the provisions
of --
10 (a) section 97UV relating to the cancellation of an
EEA; or
(b) sections 97VE and 97VO relating to the
revision of an EEA so that it is in order for
registration.
15 97UV. Cancellation of EEA
(1) The parties to an EEA may at any time make an
agreement in writing cancelling the EEA with effect on
and from a specified day.
(2) Section 97UT applies on the cancellation of an EEA
20 that has taken effect as if the EEA had expired.
97UW. Termination of contract of employment
The termination of the contract of employment of an
employee terminates an EEA that applies to the
employment.
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Division 5 -- Registration of EEAs
Subdivision 1 -- Preliminary
97UX. Delegation by Registrar
(1) The Registrar may delegate to an officer of the
5 Commission the performance of a function of the
Registrar under this Division, other than this power of
delegation.
(2) A delegation --
(a) must be made by instrument in writing; and
10 (b) may be either general or as otherwise provided
by the instrument.
(3) An officer of the Commission performing a function
under this Division is to be taken to do so in
accordance with the terms of a delegation under this
15 section, unless the contrary is shown.
(4) A function performed by an officer of the Commission
as a delegate of the Registrar is to be taken to be
performed by the Registrar.
Subdivision 2 -- Registration
20 97UY. Lodgment for registration
(1) A party to an EEA may, in accordance with the
regulations, lodge it with the Registrar for registration.
(2) An EEA must be lodged not later than the end of the
period beginning with the day of execution and ending
25 with the 21st day after that day.
(3) The Registrar is not to accept an EEA for
registration if --
(a) it is presented for lodgment after the end of the
period referred to in subsection (2); or
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(b) any provision of the regulations relating to
lodgment has not been complied with.
(4) The Registrar must issue to a person who has duly
lodged an EEA under this section a receipt showing the
5 day of lodgment.
(5) The receipt must be issued within 7 days after the day
of lodgment.
(6) In subsection (2) --
"day of execution" means --
10 (a) the day on which the EEA was signed by --
(i) the employer;
(ii) the employee or, where applicable, his
or her representative; and
(iii) if section 97UM applies, the
15 section 97UM signatory;
or
(b) if they signed on different days, the latest of
those days.
97UZ. Failure to lodge EEA made with new employee
20 If an EEA made with a new employee --
(a) has taken effect; but
(b) is not lodged for registration within the period
allowed by section 97UY(2),
it ceases to have effect for the purposes of this Part
25 immediately after the expiry of that period.
97V. Recovery of money
(1) Where section 97UZ applies, either party may, subject
to subsection (2), recover from the other any amount
which, if the EEA had not taken effect, he or she --
30 (a) would have been entitled to receive; or
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(b) would not have been required to pay,
as the case may be, in respect of the period allowed by
section 97UY(2) for lodgment.
(2) The entitlement of an employee is to be determined for
5 the purposes of subsection (1) as if any relevant award
provision extended to and bound the employer and the
employee during the period referred to in that
subsection.
(3) An amount referred to in subsection (1) may be
10 recovered by action in an industrial magistrate's court.
97VA. Employment conditions of new employee if EEA not
lodged for registration within allowed period
(1) If an EEA ceases to have effect under section 97UZ --
(a) any relevant award provisions extend to the
15 employee; or
(b) if there are no such provisions, his or her
employment becomes subject to a contract of
employment containing the same provisions as
those of the EEA that was not lodged for
20 registration within the allowed period, other
than --
(i) the provision specifying the term of the
EEA; and
(ii) the EEA dispute provisions.
25 (2) A contract referred to in subsection (1)(b) --
(a) has effect, and may be varied or terminated, as
if it were a contract entered into between the
employer and the employee; and
(b) has effect regardless of the provisions of any
30 contract of employment referred to in
section 97UE(2) between the employer and the
employee.
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97VB. Registrar to be satisfied that EEA in order for
registration
Where an EEA is lodged under section 97UY, the
Registrar must satisfy himself or herself that it is in
5 order for registration as required by the provisions of
Schedule 4.
97VC. Powers conferred on Registrar
(1) The Registrar may --
(a) meet with the parties; and
10 (b) otherwise obtain information in any way that
the Registrar thinks appropriate,
for the purposes of section 97VB.
(2) A meeting may be held with the parties together or
separately, and a party may be represented at a meeting
15 by a bargaining agent.
(3) A party to an EEA that has been lodged for
registration, or his or her bargaining agent, may make
written submissions to the Registrar for the purposes of
section 97VB.
20 (4) For the purposes of performing the function in
section 97VB the Registrar, or a delegate of the
Registrar, is an authorised person within the meaning
of that term in Schedule 5.
(5) In this section --
25 "party" includes a section 97UM signatory.
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97VD. Registrar to notify parties of certain deficiencies in
EEA
(1) This section applies where the Registrar is not satisfied
that an EEA is in order for registration for one or more
5 of the following reasons --
(a) it does not comply with section 97UL, 97UN or
97US;
(b) it does not pass the no-disadvantage test;
(c) it purports to provide for a condition of
10 employment that is less favourable to the
employee than a minimum condition of
employment under the MCE Act.
(2) Where this section applies the Registrar must give
notice in writing to the parties setting out --
15 (a) the deficiencies in the EEA that, in his or her
opinion, will make it necessary for the
Registrar to refuse to register it; and
(b) the terms of subsection (1) of section 97VE and
the period within which the parties may comply
20 with that subsection.
97VE. Parties may correct deficiencies
(1) If a notice is given to the parties under section 97VD
they may, in accordance with the regulations, lodge a
revised EEA with the Registrar within the time
25 specified in the notice.
(2) A revised EEA so lodged is to be treated as if it were
an EEA duly lodged under section 97UY.
(3) Section 97VD does not apply to a revised EEA lodged
under subsection (1).
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(4) If --
(a) the Registrar has given a notice under
section 97VD; but
(b) a revised EEA is not lodged in accordance with
5 subsection (1),
the Registrar must determine under section 97VG that
registration of the EEA is refused.
97VF. Registration
(1) If the Registrar is satisfied that an EEA is in order for
10 registration, the Registrar must --
(a) register the EEA; and
(b) give to each party notice in writing of the
registration and of the day on which it occurred,
not later than 7 days after that day.
15 (2) The Registrar is not to register an EEA before the
14th day after the day on which it was lodged under
section 97UY.
97VG. Refusal of registration
If the Registrar is not satisfied that an EEA is in order
20 for registration, the Registrar must --
(a) determine that registration is refused; and
(b) within 7 days after making that determination,
give to each party a notice in writing of the
refusal and of the reasons for it.
25 97VH. When refusal has effect
(1) A refusal of registration comes into force --
(a) on the expiry of the period of 14 days allowed
by section 97VM(2) for the bringing of an
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appeal against the refusal without an appeal
being duly brought; or
(b) if an appeal is duly brought, on the failure of
the appeal.
5 (2) For the purpose of subsection (1)(b) an appeal fails
if --
(a) the refusal of registration is confirmed under
section 97VP(2); or
(b) the appeal is withdrawn or is dismissed by the
10 relevant industrial authority for want of
prosecution.
97VI. Cessation of EEA for new employee where
registration refused
If an EEA made with a new employee --
15 (a) has taken effect; but
(b) is refused registration under section 97VG,
the EEA ceases to have effect for the purposes of this
Part as from the day on which the refusal comes into
force under section 97VH.
20 97VJ. Recovery of money
(1) Where section 97VI applies either party may, subject to
subsection (2), recover from the other any amount
which, if the EEA had not taken effect, he or she --
(a) would have been entitled to receive; or
25 (b) would not have been required to pay,
as the case may be, in respect of the period between the
day when the EEA took effect and the day on which
the refusal of registration came into force.
(2) The entitlement of an employee is to be determined for
30 the purposes of subsection (1) as if any relevant award
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provision extended to and bound the employer and the
employee during the period referred to in that
subsection.
(3) An amount referred to in subsection (1) may be
5 recovered by action in an industrial magistrate's court.
97VK. Employment conditions of new employee if
registration refused
(1) If an EEA ceases to have effect under section 97VI --
(a) any relevant award provisions extend to the
10 employee; or
(b) if there are no such provisions, his or her
employment becomes subject to a contract of
employment containing the same provisions as
those of the EEA that was refused registration,
15 other than --
(i) the provision specifying the term of the
EEA; and
(ii) the EEA dispute provisions.
(2) A contract referred to in subsection (1)(b) --
20 (a) has effect, and may be varied or terminated, as
if it were a contract entered into between the
employer and the employee; and
(b) has effect regardless of the provisions of any
contract of employment referred to in
25 section 97UE(2) between the employer and the
employee.
97VL. Registrar to provide copy
(1) The Registrar must give a copy of an EEA that is
registered --
30 (a) to the employer and the employee; and
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(b) where applicable, to the employee's
representative.
(2) The Registrar must comply with subsection (1) not
later than 7 days after the day on which the EEA is
5 registered --
(a) under section 97VF; or
(b) by order of a relevant industrial authority under
section 97VP(2)(b).
Subdivision 3 -- Appeal against refusal of registration
10 97VM. Appeal against refusal of registration
(1) The employer or the employee under an EEA may
appeal to the relevant industrial authority against a
refusal by the Registrar to register the EEA.
(2) An appeal must be brought within 14 days after the day
15 on which the party received notice of the refusal under
section 97VG.
(3) The time limit specified in subsection (2) cannot be
extended under section 27(1)(n).
97VN. Relevant industrial authority to notify parties of
20 certain deficiencies in EEA
(1) This section applies on an appeal against a refusal by
the Registrar to register an EEA for one or more of the
following reasons --
(a) it does not comply with section 97UL, 97UN or
25 97US;
(b) it does not pass the no-disadvantage test;
(c) it purports to provide for a condition of
employment that is less favourable to the
employee than a minimum condition of
30 employment under the MCE Act.
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(2) Where this section applies the relevant industrial
authority may give notice in writing to the parties
setting out --
(a) the deficiencies in the EEA that, in the opinion
5 of that authority, make it necessary for
registration to be refused; and
(b) the terms of subsection (1) of section 97VO and
the period within which the parties may comply
with that subsection.
10 97VO. Parties may make corrections
(1) If a notice is given to the parties under section 97VN
they may, in accordance with the regulations, lodge a
revised EEA with the relevant industrial authority
within the time specified in the notice.
15 (2) If --
(a) a revised EEA is so lodged; and
(b) the relevant industrial authority is satisfied that
it is in order for registration,
the authority may cause it to be registered by disposing
20 of the appeal in the manner provided for by
section 97VP(2)(b)(i).
(3) If --
(a) the relevant industrial authority has given a
notice under section 97VN; but
25 (b) a revised EEA is not lodged in accordance with
subsection (1),
the authority must dispose of the appeal in the manner
provided for by section 97VP(2)(a).
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97VP. Determination of appeal
(1) In determining an appeal the relevant industrial
authority is not limited to the material that was before
the Registrar, but may inform itself in such manner as
5 it thinks fit.
(2) On the determination of an appeal the relevant
industrial authority may --
(a) confirm the refusal of registration; or
(b) set aside the refusal and --
10 (i) order the Registrar to register the EEA;
or
(ii) remit the matter to the Registrar for
reconsideration with any direction or
recommendation the relevant industrial
15 authority thinks fit.
(3) The relevant industrial authority must give the parties
notice in writing of its determination within 7 days
after it is made.
97VQ. Proceedings under this Subdivision
20 (1) The Commission may make regulations under
section 113 providing for the practice and procedure to
be followed for the purposes of appeals under this
Subdivision.
(2) Subject to subsection (1), the relevant industrial
25 authority may exercise such of the powers set out in
sections 27, 28 and 33 as the authority considers it
necessary or expedient to exercise for the purposes of
an appeal under this Subdivision.
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Division 6 -- No-disadvantage test
Subdivision 1 -- Definition
97VR. Definitions
In this Subdivision --
5 "award" includes an award under the Coal Industry
Tribunal of Western Australia Act 1992;
"comparable award", in relation to an employee,
means an award or awards regulating the terms
and conditions of employment of employees
10 engaged in the same kind of work as the
employee;
"relevant order" means any order under this Act that
is prescribed by the regulations for the purposes of
section 97VS.
15 97VS. No-disadvantage test defined
(1) For the purposes of Schedule 4 clause 1(1)(e), an EEA
passes the no-disadvantage test if it does not
disadvantage the employee in relation to the terms and
conditions of his or her employment.
20 (2) An EEA disadvantages an employee as mentioned in
subsection (1) only if its provisions result, on balance,
in a reduction in the overall entitlements of the
employee under --
(a) an award; or
25 (b) a relevant order,
to which this subsection applies.
(3) Despite subsection (2), an EEA is to be taken to
disadvantage the employee as mentioned in
subsection (1) if --
30 (a) it confers on the employer a power to change
any term or condition of the employment
without the consent of the employee; and
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(b) the employer could exercise the power in a way
that would result, on balance, in a reduction in
the overall entitlements of the employee
referred to in subsection (2).
5 (4) Subsection (2) applies to --
(a) an award; or
(b) a relevant order,
that the Registrar determines, whether under
section 97VT or otherwise, would otherwise extend to
10 the employee.
(5) If the Registrar is satisfied that there is no award that
would otherwise extend to the employee,
subsection (2) applies to --
(a) any award, including an award under the
15 Commonwealth Act, that the Registrar
determines, whether under section 97VT or
otherwise, to be a comparable award; and
(b) a relevant order.
(6) If --
20 (a) the Registrar is not able to determine an award
for the purposes of subsection (4) or (5); or
(b) section 97VT(2)(b) applies,
the EEA is to be taken not to disadvantage the
employee in relation to the terms and conditions of his
25 or her employment.
Note: By virtue of section 5(2) of the Minimum Conditions of Employment
Act 1993 a provision of an employer-employee agreement is of no effect
if it is less favourable to the employee than a minimum condition of
employment under that Act.
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97VT. Determination of award, comparable award or
relevant order by Registrar
(1) If an employer --
(a) proposes to enter into an EEA; but
5 (b) is unsure which award, comparable award or
relevant order will be relevant to the
employment for the purposes of section 97VS,
the employer may apply in writing to the Registrar for
the making of a determination of that matter.
10 (2) Upon such an application being made the Registrar
must --
(a) determine which award, comparable award or
relevant order will be relevant for the purposes
of section 97VS; or
15 (b) determine that there is no such award,
comparable award or relevant order.
(3) A determination under subsection (2) is binding on the
Registrar for the purposes of section 97VS if the EEA
concerned is lodged for registration under Division 5,
20 unless the Registrar considers that the circumstances
existing at the time when the determination was made
have changed in a material way.
97VU. All entitlements to be considered
In comparing the entitlements of an employee under an
25 EEA to the entitlements that would be provided to the
employee under --
(a) an award or a comparable award; or
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(b) a relevant order,
the Registrar must take into account all relevant
benefits whether in the form of money or otherwise.
97VV. Particular provision for case where Supported
5 Wage System applies
An EEA does not disadvantage an employee in relation
to his or her employment by reason only of a reduction
of the employee's wages if --
(a) the employee is eligible for the Supported
10 Wage System; and
(b) the EEA provides for the payment of wages to
the employee at a rate that is not less than the
rate set in accordance with that System for
persons of a class that includes the employee.
15 Subdivision 2 -- Principles to be followed in application of
no-disadvantage test
97VW. Definition
In this Subdivision --
"Commission" means the Commission in Court
20 Session.
97VX. Commission to establish principles and guidelines
(1) The Commission must prepare an instrument setting
out the principles and guidelines that are to be followed
by the Registrar in determining whether an EEA passes
25 the no-disadvantage test.
(2) The instrument must not be inconsistent with this Part.
(3) Section 43(7), (8) and (9) of the Interpretation
Act 1984 apply to the instrument as if it were
subsidiary legislation.
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(4) Subject to section 97W, the Commission may amend
the instrument or revoke it and substitute another
instrument for it.
(5) The Commission must cause the instrument, and any
5 amendment or substituted instrument, to be published
in the Industrial Gazette and --
(a) in a newspaper circulating throughout the State;
or
(b) on an internet website maintained by the
10 Commission.
97VY. Registrar and Commission to give effect to
instrument
The provisions of an instrument under section 97VX
are to be complied with --
15 (a) by the Registrar and officers of the Commission
in making determinations for the purposes of
paragraph (e) of Schedule 4 clause 1(1); and
(b) by the relevant industrial authority in the
determination of an appeal under section 97VP,
20 so far as it relates to a determination under that
paragraph.
97VZ. Minister and certain bodies may seek amendment
(1) The Minister or a peak industrial body may at any time
apply to the Commission to have the instrument under
25 section 97VX --
(a) amended so that it makes provision to the effect
set out in the application; or
(b) replaced by a new instrument that makes
provision to the effect set out in the application.
30 (2) If an application is so made the Commission may --
(a) exercise its powers under section 97VX(4); or
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(b) decline to do so.
(3) In subsection (1) --
"peak industrial body" means the Council, the
Chamber and the Mines and Metals Association.
5 97W. Requirement for public comment
Before the Commission exercises any power in
section 97VX(4), whether on an application under
section 97VZ or otherwise, it must call for public
comment in accordance with section 97WA.
10 97WA. Public comment on amendment or substitute
instrument
(1) Where this section applies the Commission must make
available for public comment a draft ("the exposure
draft") of --
15 (a) any proposed amendment to the instrument
under section 97VX; or
(b) the instrument that is proposed to be substituted
for that instrument,
as the case may be.
20 (2) The Commission must --
(a) cause a notice giving a general description of
the exposure draft to be published in a daily
newspaper circulating throughout the State; and
(b) include in the notice the following
25 information --
(i) the places at which a copy of the
exposure draft may be obtained;
(ii) a statement that written submissions on
the exposure draft may be made to the
30 Commission by any person within a
specified period; and
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(iii) the address to which the submissions
may be delivered or posted.
(3) The period specified under subsection (2)(b)(ii) must
be not less than 30 days after notice has been published
5 under subsection (2)(a).
(4) The Commission must have regard to any submission
made in accordance with the notice.
Division 7 -- Register
97WB. Definition
10 (1) In this Division --
"protected information" means --
(a) the name of the employee under an EEA;
(b) the provisions of an EEA, or any particular
provision, declared under section 97WE to
15 be exempt from the operation of
section 97WD(1); and
(c) the address of the employee under an EEA.
(2) In subsection (1)(a) and (b) --
"EEA" does not include an EEA that is made with a
20 person who is an employee within the meaning in
the Public Sector Management Act 1994.
97WC. Register
(1) The Registrar must keep a register for the purposes of
Division 5.
25 (2) The register --
(a) must record particulars of every EEA that is
registered under Division 5; and
(b) may do so in a form and manner determined by
the Registrar.
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(3) The Registrar may determine that the register is to be
in the form of information stored on a computer.
97WD. Inspection of register
(1) The Registrar must allow any person, on payment of
5 the fee (if any) prescribed by the regulations, to inspect
an EEA registered under Division 5.
(2) Subsection (1) does not include the inspection of
protected information.
97WE. Commission may exempt an EEA from inspection
10 (1) The Commission may, by order --
(a) exempt the provisions of an EEA, or any
particular provision, from the operation of
section 97WD(1); or
(b) vary an order so made,
15 if it considers that it is in the public interest to do so.
(2) An order under subsection (1) may be revoked by the
Commission if it considers that the continuation of the
order is no longer in the public interest.
(3) The powers of the Commission under this section are
20 exercisable on application made by a party to the EEA
concerned.
(4) This section does not apply to an EEA that is made
with a person who is an employee within the meaning
in the Public Sector Management Act 1994.
25 97WF. Protected information not to be disclosed
(1) A person to whom this subsection applies must not,
directly or indirectly, record, disclose or make use of
protected information obtained in the course of
performing functions under this Part except --
30 (a) in the course of performing those functions;
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(b) as required or allowed by this Act or any other
written law;
(c) for the purpose of proceedings in a court;
(d) with the written authority of the employer or
5 employee to whom the protected information
relates; or
(e) in other circumstances prescribed by the
regulations.
Penalty: $5 000.
10 (2) Subsection (1) applies to a person who --
(a) holds or has held office as the Registrar or a
Deputy Registrar; or
(b) otherwise is or has been an officer of the
Commission.
15 97WG. Certified copies
(1) The Registrar or a Deputy Registrar may, on payment
of the fee (if any) prescribed by the regulations, issue
to a party or a section 97UM signatory to an EEA that
is registered under Division 5 a certified copy of the
20 EEA.
(2) In all courts and proceedings a certified copy so issued
is evidence of the EEA of which it is a copy.
(3) A document that purports to be a certified copy of an
EEA issued by the Registrar or a Deputy Registrar is to
25 be taken to be such a copy unless the contrary is
proved.
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Division 8 -- Disputes
97WH. Definitions
In this Division --
"arbitrator" means --
5 (a) an arbitrator appointed by or under EEA
dispute provisions; or
(b) where a provision made under section 97UP
applies, a relevant industrial authority;
"dispute" means a question, dispute or difficulty that
10 has arisen out of or in the course of employment
under an EEA.
97WI. Arbitration jurisdiction of relevant industrial
authority
(1) A relevant industrial authority has jurisdiction to deal
15 with and determine any dispute that is referred to the
authority for arbitration under a provision of the kind
mentioned in section 97UP that is included in EEA
dispute provisions.
(2) In conducting an arbitration the relevant industrial
20 authority --
(a) must comply with the provisions of the EEA
concerned; and
(b) may exercise powers under this Act, other than
this Division, only to the extent that the
25 authority is empowered by the provisions of the
EEA to do so.
97WJ. Representation
An employer or an employee may be represented by
his or her bargaining agent in connection with a
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dispute, including in proceedings before an arbitrator
under EEA dispute provisions.
97WK. Referral to relevant industrial authority where
delay alleged in dispute resolution
5 (1) This section applies if --
(a) a dispute has arisen ("the original dispute");
and
(b) a party to the EEA concerned alleges that the
other party has failed to comply with any time
10 limit included in the EEA dispute provisions
under section 97UO(2)(c).
(2) The party who alleges the non-compliance may refer
the allegation to the relevant industrial authority.
(3) A referral under subsection (2) operates --
15 (a) as a bar to the referral of the original dispute to
arbitration; or
(b) as a stay of any arbitration proceedings that
have been commenced in respect of that
dispute,
20 unless the referral is dismissed under subsection (6) or
is sooner withdrawn.
(4) If the relevant industrial authority is satisfied that the
allegation is proved it must enter on and complete an
arbitration of the original dispute in place of any other
25 arbitrator provided for by, or that could be or has been
appointed under, the EEA dispute provisions.
(5) The relevant industrial authority --
(a) has jurisdiction to act under subsection (4)
despite the EEA dispute provisions; and
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(b) when doing so has the same powers and duties
in respect of the original dispute as an arbitrator
acting under those provisions would have had.
(6) If the relevant industrial authority is not satisfied that
5 the allegation is proved --
(a) the authority must order that the matter be
dismissed; and
(b) the EEA dispute provisions have effect as if
there had been no referral under this section.
10 97WL. Several disputes may be subject of one arbitration
(1) This section applies where --
(a) 2 or more employees have a dispute with the
same employer;
(b) the issues involved are substantially the same or
15 similar in each case; and
(c) the EEA dispute provisions in each EEA are
substantially the same.
(2) The employees may agree in writing that, subject to the
approval of the arbitrator, all matters are to be heard
20 and determined at the same time in one arbitration
proceeding.
(3) An agreement under subsection (2) must be made
before an arbitrator has entered on the arbitration.
(4) Subject to the approval mentioned in subsection (2),
25 the employer must ensure that effect is given to the
agreement, so long as it remains in force.
97WM. Power of arbitrator to obtain information
An arbitrator acting under EEA dispute provisions is an
authorised person within the meaning of that term in
30 Schedule 5.
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97WN. Orders and determinations of arbitrators
(1) This section applies where --
(a) a dispute has been referred to an arbitrator
under EEA dispute provisions; or
5 (b) a relevant industrial authority is acting under
section 97WK(4).
(2) The powers conferred by this section are subject to the
limitations that they do not empower an arbitrator --
(a) to enforce an EEA by making any order or
10 determination that an industrial magistrate's
court may make under section 83; or
(b) to make an order or determination that is in
conflict, or is inconsistent, with the EEA or the
contract of employment concerned.
15 (3) An arbitrator may --
(a) make one or more of the orders or
determinations described in subsection (4); or
(b) refuse to make any order or determination if he
or she considers that --
20 (i) the referral was vexatious; or
(ii) the subject matter of the dispute is
lacking in substance.
(4) An arbitrator may --
(a) determine the meaning or effect of the EEA
25 concerned;
(b) order a party --
(i) to do a specified thing; or
(ii) cease any specified activity;
or
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(c) make any other order or determination that he
or she considers necessary or expedient to
resolve the dispute.
(5) If there is any conflict or inconsistency between the
5 provisions of subsections (3) or (4) on the one hand
and those of the EEA or the contract of employment
concerned on the other, the latter prevail.
97WO. Further provisions about orders and determinations
An order or determination of an arbitrator --
10 (a) must be in writing and accompanied by the
reasons for its making;
(b) is final and not subject to appeal; and
(c) must be complied with by the employer and the
employee unless they agree in writing not to
15 give effect to it.
97WP. Enforcement of orders and determinations
(1) An order or determination referred to in
section 97WN(4)(b) and (c) made by an arbitrator that
is a relevant industrial authority is enforceable under
20 section 83.
(2) Where an order or determination referred to in
section 97WN(4)(b) and (c) is made by an arbitrator
that is not a relevant industrial authority, the arbitrator
must, at the request of a party and in accordance with
25 any requirements of the regulations, lodge a copy of
the order or determination with the Commission.
(3) An order or determination lodged under subsection (2)
is enforceable under section 83 as if it were an order of
the Commission.
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97WQ. Industrial magistrate's court not bound by
interpretations of EEA
In any proceedings under section 83 for the
enforcement of a provision of an EEA, an industrial
5 magistrate's court is not bound by a determination of
the meaning or effect of the provision made by an
arbitrator under the EEA dispute provisions.
Division 9 -- EEAs for persons with mental disabilities
Subdivision 1 -- Preliminary
10 97WR. Definitions
In this Division --
"applicant" means the person who has made an
application under section 97WV or 97XM;
"Guardianship and Administration Board" or
15 "Board" means the Board established by section 5
of the Guardianship and Administration Act 1990;
"medical practitioner" means a person registered
under the Medical Act 1894;
"mental disability" includes --
20 (a) an intellectual disability;
(b) a psychiatric condition;
(c) an acquired brain injury; or
(d) dementia;
"person with a mental disability" means the person
25 with a mental disability who has made an
application under section 97WV or 97XM, or on
whose behalf such an application has been made;
"proposed representative" has the meaning given by
section 97WV(3) or 97XM(3), as the case may be;
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"revocation order" has the meaning given by
section 97XI(1).
97WS. Relationship of this Division to Guardianship and
Administration Act 1990
5 (1) An order cannot be made under section 97WZ or 97XN
approving a representative of a person if a guardianship
order is in force under which there is appointed --
(a) a plenary guardian of the person; or
(b) a limited guardian of the person in whom are
10 vested functions that are conferred on a
representative by sections 97UD and 97XD.
(2) The making of a guardianship order in respect of a
person automatically revokes an order under
section 97WZ or 97XN approving a representative of
15 the person if under the guardianship order there is
appointed --
(a) a plenary guardian of the person; or
(b) a limited guardian of the person in whom are
vested functions that are conferred on a
20 representative by sections 97UD and 97XD.
(3) The revocation of an order by operation of
subsection (2) does not affect anything done in good
faith by the representative concerned before he or she
received notice of the revocation.
25 (4) In this section and in section 97WU the expressions
"guardianship order", "plenary guardian" and
"limited guardian" have the same meanings as they
have in the Guardianship and Administration Act 1990.
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97WT. Registrar to notify Board of applications and orders
for approval of representative
(1) The Registrar must give the Guardianship and
Administration Board notice in writing of every --
5 (a) application that is made under section 97WV or
97XM; and
(b) order that is made under section 97WZ or
97XN.
(2) A notice under subsection (1)(a) must identify --
10 (a) the person with a mental disability to whom the
application relates; and
(b) the proposed representative.
(3) A notice under subsection (1)(b) must identify --
(a) the represented person; and
15 (b) the representative,
to whom the order relates.
(4) The Registrar must not dispose of an application under
section 97WV or 97XM until the Board has given the
Registrar the information required by section 97WU.
20 97WU. Board to notify Registrar of relevant guardianship
orders
(1) Where the Board receives a notice under section 97WT
it must --
(a) inform the Registrar in writing whether or not
25 there is any relevant guardianship order in force
in respect of the person with a mental disability
or the represented person, as the case may be;
and
(b) if there is such an order in force, provide the
30 Registrar with particulars of it.
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(2) A guardianship order is relevant for the purposes of
subsection (1) if it appoints --
(a) a plenary guardian; or
(b) a limited guardian in whom are vested
5 functions that are conferred on a representative
by sections 97UD and 97XD.
(3) Where the Board --
(a) has received notice under section 97WT of an
order made under section 97WZ or 97XN; and
10 (b) subsequently makes a guardianship order in
respect of the represented person concerned
that, by operation of section 97WS(2),
automatically revokes the order referred to in
paragraph (a),
15 it must give the Registrar notice in writing of the
guardianship order so made.
(4) The Registrar must give to the representative and the
employer concerned notice in writing of the revocation
referred to in subsection (3).
20 Subdivision 2 -- Approval of person to act on behalf of
person with a mental disability
97WV. Application for approval
(1) This section applies to a person --
(a) who has the prospect of being employed by an
25 employer under an EEA; but
(b) who is in general incapable, because of a
mental disability, of making reasonable
decisions on matters pertaining to an
employer-employee relationship.
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(2) An application may be made to the Registrar by or on
behalf of a person to whom this section applies for an
order approving a person to act on his or her behalf in
relation to --
5 (a) the making of an EEA as provided by
section 97UD; and
(b) the matters referred to in section 97XD(1) in
connection with an EEA so made.
(3) The person sought to be approved ("the proposed
10 representative") must be one who satisfies the
requirements of section 97WY.
97WW. Requirements for application
(1) An application under section 97WV must be made --
(a) in the form prescribed under section 97WX;
15 and
(b) in accordance with the regulations.
(2) The proposed representative may be the applicant.
(3) An application must be accompanied by a certificate in
respect of the person with a mental disability --
20 (a) in the form prescribed under section 97WX; and
(b) duly completed by a person who is stated in the
form to be a medical practitioner.
(4) The applicant must also provide such information and
evidence as the Registrar may request in writing.
25 97WX. Forms to be prescribed
(1) The Registrar is to prescribe, by order published in the
Gazette, the forms that are to be used for the purposes
of section 97WW.
(2) The form of application must include provision for the
30 proposed representative to signify his or her consent to
the application.
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(3) The form of certificate must be designed to show that,
in the opinion of a medical practitioner, the person with
a mental disability is in general incapable, because of
the disability, of making reasonable decisions on
5 matters pertaining to an employer-employee
relationship.
97WY. Who may be approved as a representative
(1) A person may be approved under section 97WZ or
97XN only if he or she --
10 (a) is the spouse of the person with a mental
disability;
(b) is closely associated with the person with a
mental disability and has reached 18 years of
age; or
15 (c) belongs to a class of persons that is prescribed
by the regulations.
(2) For the purposes of subsection (1)(b), a person is
closely associated with the person with a mental
disability if, and only if, the first-mentioned person --
20 (a) regularly provides or arranges for domestic
services and support to; or
(b) maintains a close personal relationship with,
the person with a mental disability.
(3) It is immaterial for the purposes of subsection (2)
25 whether or not the person is related in any way to the
person with a mental disability.
97WZ. Approval of representative
(1) Where an application is made under section 97WV, the
Registrar must make an order approving the proposed
30 representative if he or she is satisfied that --
(a) the application is not one that is prohibited by
section 97WS(1);
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(b) section 97WW has been complied with; and
(c) the proposed representative --
(i) satisfies the requirements of
section 97WY; and
5 (ii) consents to the application.
(2) The Registrar is to rely on the certificate given under
section 97WW(3) and it is not his or her function to be
satisfied --
(a) that the person with a mental disability is a
10 person to whom section 97WV applies; or
(b) that the certificate has been correctly given.
(3) The Registrar must give notice in writing of the making
of an order under subsection (1) within 7 days after it is
made to --
15 (a) the represented person, the applicant (if he or
she was not the represented person) and the
representative; and
(b) the Guardianship and Administration Board.
97X. Effect of order
20 An order under section 97WZ authorises the person
approved by the order ("the representative"), so long
as the order remains in force, to act on behalf of the
person with a mental disability ("the represented
person") in relation to --
25 (a) the making of one or more EEAs under
section 97UD; and
(b) the matters referred to in section 97XD(1).
97XA. Refusal of approval
If the Registrar is not satisfied as mentioned in
30 section 97WZ(1) he or she must --
(a) refuse to make an order under that section; and
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(b) within 7 days after doing so give the applicant
and the proposed representative notice in
writing of the refusal, including a statement of
the reasons for it.
5 97XB. Appeal against refusal of approval
(1) If the Registrar refuses to make an order under
section 97WZ the person with a mental disability, or a
person acting on his or her behalf, may appeal to the
Commission against the refusal.
10 (2) An appeal must be brought within 14 days after the day
on which the applicant received notice of the refusal
under section 97XA.
97XC. Determination of appeal
(1) An appeal to the Commission under section 97XB
15 must be heard and determined by a Commissioner.
(2) In determining an appeal the Commission is not limited
to the material that was before the Registrar, but may
inform itself in such manner as it thinks fit.
(3) On the determination of an appeal the Commission
20 may --
(a) confirm the refusal to make an order;
(b) quash the Registrar's determination and make
an order approving the proposed representative;
or
25 (c) remit the matter to the Registrar for
reconsideration with any direction or
recommendation the Commission thinks fit.
(4) The Commission must give the appellant and the
proposed representative notice in writing of its
30 determination within 7 days after it is made.
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Subdivision 3 -- Functions of representative
97XD. Functions
(1) In addition to his or her functions under section 97UD,
a representative --
5 (a) may act on behalf of the represented person in
relation to the operation and enforcement of an
EEA; and
(b) in particular, may perform any function
described in subsection (2) on behalf of the
10 represented person.
(2) The functions referred to in subsection (1)(b) are --
(a) to make a request under section 97UH;
(b) to appoint, or terminate the appointment of, a
bargaining agent under section 97UJ;
15 (c) to make a cancellation agreement;
(d) to make and lodge a revised EEA under
section 97VE(1) or 97VO(1);
(e) to recover any amount referred to in
section 97V or 97VJ;
20 (f) to bring an appeal under section 97VM;
(g) to make an application referred to in
section 97WE(3);
(h) to give a written authority for the purposes of
section 97WF(1)(d);
25 (i) to act on behalf of the represented person for
the purpose of carrying out any EEA dispute
provision;
(j) to make a referral under section 97WK(2); and
(k) to refer a matter to the Commission as
30 mentioned in section 29(1a).
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97XE. Effect of acts of representative
The performance of a function referred to in
section 97XD by a representative has effect as if --
(a) it were the performance of the represented
5 person; and
(b) the represented person were of full legal
capacity.
97XF. Duties of representative
(1) In performing the functions referred to in section 97XD
10 a representative is to act according to his or her opinion
of the best interests of the represented person.
(2) Without limiting subsection (1), a representative acts in
the best interests of the represented person if he or she
acts as far as possible --
15 (a) as an advocate of the represented person in
relation to any EEA;
(b) in such a way as to encourage the represented
person to become capable of making reasonable
decisions on matters pertaining to an
20 employer-employee relationship;
(c) in such a way as to protect the represented
person from abuse or exploitation in
employment; and
(d) in consultation with, and taking into account
25 the wishes of, the represented person.
(3) A failure of a representative to observe the duty
mentioned in subsection (1) does not give rise to any
liability on the part of the representative, but this does
not affect the operation of --
30 (a) Subdivision 4; or
(b) any other written law.
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Subdivision 4 -- Termination of representative's
authority to act
97XG. Duration of order approving representative
An order under section 97WZ(1) or 97XN(1) remains
5 in force until --
(a) the representative resigns in accordance with
section 97XH; or
(b) the order is revoked --
(i) by operation of section 97WS(2); or
10 (ii) by an order ("a revocation order")
made under section 97XK.
97XH. Resignation of representative
(1) A representative may give notice in writing to the
Registrar of his or her wish to resign from the position
15 of representative.
(2) Where notice is so given the Registrar must approve
the resignation.
(3) The resignation has effect --
(a) on the day on which notice in writing of the
20 approval is given to the representative by the
Registrar; or
(b) on a later day specified by the Registrar in that
notice.
97XI. Application to Board for revocation order
25 (1) An application may be made to the Guardianship and
Administration Board, in accordance with the
regulations, for an order ("a revocation order")
revoking an order under section 97WZ(1) or 97XN(1).
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(2) The application may be made by --
(a) the represented person or a person acting on his
or her behalf; or
(b) any other person who satisfies the Board that he
5 or she has a sufficient interest in the
application.
(3) The application may only be made on one or more of
the following grounds --
(a) that the represented person is no longer a
10 person to whom section 97WV(1)(b) applies;
(b) that the representative has failed to act in the
best interests of the represented person;
(c) that it is for some other reason no longer in the
interests of the represented person for the
15 representative to act on his or her behalf.
97XJ. Opportunity to be heard
(1) The representative must be given a reasonable
opportunity to be heard on an application for a
revocation order.
20 (2) The represented person, or another person acting on his
or her behalf, must be given a reasonable opportunity
to be heard if an application for a revocation order is
made other than by or on behalf of the represented
person.
25 97XK. Board may make revocation order
(1) Where an application is made to it under section 97XI,
the Board must make a revocation order if it is satisfied
that --
(a) the grounds on which the application is made
30 have been established; or
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(b) it is for some other reason no longer in the
interests of the represented person for the
representative to act on his or her behalf.
(2) Where the Board makes a revocation order it may also
5 exercise the power conferred on the Registrar by
subsection (1) of section 97XN if it is satisfied as to the
matters set out in each of the paragraphs of that
subsection, other than paragraph (c).
(3) If the Board is not satisfied as mentioned in
10 subsection (1) it must order that the application is
refused.
(4) The executive officer of the Board must give notice in
writing to the Registrar of the determination of the
Board.
15 (5) An order under subsection (1) or (2) takes effect --
(a) on the day on which notice of the order is given
to the representative; or
(b) on a later day specified in the order.
97XL. Application of Guardianship and Administration
20 Act 1990 for purposes of section 97XK
(1) The following provisions of the Guardianship and
Administration Act 1990 apply for the purposes of
section 97XK, with all necessary changes, in the same
way as they apply for the purposes of that Act --
25 (a) sections 113 and 114 and Schedule 1 Part B,
other than clause 13;
(b) clause 13(2) and (3) of Schedule 1 Part B, but
subject to section 97XJ of this Act.
(2) Part 3 Divisions 2A, 3 and 4 of the Guardianship and
30 Administration Act 1990 do not apply to a
determination of the Board under section 97XK.
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Subdivision 5 -- Approval of new representative
97XM. Application for new approval where representative
dies or approval is revoked
(1) This section applies where --
5 (a) a representative dies; or
(b) the approval of a representative is revoked
under subsection (1) of section 97XK without a
new representative being approved under
subsection (2) of that section.
10 (2) An application may be made to the Registrar by or on
behalf of the person who immediately before the death
or revocation was the represented person for an order
approving a person to act in place of the representative
who has died or whose approval has been revoked.
15 (3) The person sought to be approved ("the proposed
representative") must be one who satisfies the
requirements of section 97WY.
(4) The application must be made --
(a) in the form prescribed under subsection (6); and
20 (b) in accordance with the regulations.
(5) The proposed representative may be the applicant.
(6) The Registrar is to prescribe, by order published in the
Gazette, the form of application that is to be used for
the purposes of subsection (2).
25 (7) The form must include provision for the proposed
representative to signify his or her consent to the
application.
(8) The applicant must also provide such information and
evidence as the Registrar may request in writing.
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97XN. Approval of representative
(1) Where an application is made under section 97XM, the
Registrar must make an order approving the proposed
representative if he or she is satisfied that --
5 (a) the circumstances mentioned in
subsection (1)(a) or (b) of that section apply;
(b) the application is not one that is prohibited by
section 97WS(1);
(c) section 97XM(4) has been complied with; and
10 (d) the proposed representative --
(i) satisfies the requirements of
section 97WY; and
(ii) consents to the application.
(2) The Registrar must give notice in writing of an order
15 within 7 days after it is made to --
(a) the represented person, the applicant (if he or
she was not the represented person) and the
representative; and
(b) the Guardianship and Administration Board.
20 97XO. Effect of order
An order under section 97XN authorises the person
approved by the order ("the representative"), so long
as the order remains in force, to act on behalf of the
person with a mental disability ("the represented
25 person") in relation to --
(a) the making of one or more EEAs under
section 97UD; and
(b) the matters referred to in section 97XD(1).
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97XP. Refusal of approval
If the Registrar is not satisfied as mentioned in
section 97XN(1) he or she must --
(a) refuse to make an order under that section; and
5 (b) within 7 days after doing so give the applicant
and the proposed representative notice in
writing of the refusal, including a statement of
the reasons for it.
97XQ. Appeal against refusal of approval
10 Sections 97XB and 97XC apply where the Registrar
refuses to make an order under section 97XN in the
same way as they apply to a refusal of approval under
section 97XA.
Subdivision 6 -- Miscellaneous
15 97XR. Powers of Registrar
For the purpose of determining an application under
section 97WV or 97XM, the Registrar may --
(a) meet with the persons who are concerned in the
application; and
20 (b) otherwise obtain information in any way that
the Registrar thinks appropriate.
97XS. EEA not affected by revocation of order or vacancy
in position of representative
An EEA to which a represented person is a party is not
25 affected by --
(a) the operation of section 97WS(2); or
(b) the fact that the position of representative is
vacant because of --
(i) the making of a revocation order; or
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(ii) the resignation or death of the
representative.
97XT. Register
(1) The Registrar must keep a register for the purposes of
5 this Division.
(2) The register --
(a) must record particulars of every order that is
made under section 97WZ or 97XN; and
(b) may do so in a form and manner determined by
10 the Registrar.
(3) The Registrar may determine that the register is to be
in the form of information stored on a computer.
(4) Subject to any restriction on inspection imposed by the
regulations, the Registrar must allow any person to
15 inspect the register on payment of the prescribed fee, if
any.
97XU. Certified copies
(1) The Registrar or a Deputy Registrar may, on payment
of the fee (if any) prescribed by the regulations, issue
20 to any person a certified copy of an entry in the register
kept under section 97XT.
(2) In all courts and proceedings a certified copy so issued
is evidence of the matters to which it relates.
(3) A document that purports to be a certified copy of an
25 entry in the register issued by the Registrar or a Deputy
Registrar is to be taken to be such a copy unless the
contrary is proved.
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97XV. Information not to be disclosed
(1) A person to whom this subsection applies must not,
directly or indirectly, record, disclose or make use of
information obtained in the course of performing
5 functions under this Division except --
(a) in the course of performing those functions;
(b) as required or allowed by this Act or any other
written law;
(c) for the purpose of proceedings in a court;
10 (d) with the written authority of each person to
whom the information relates; or
(e) in other circumstances prescribed by the
regulations.
Penalty: $5 000.
15 (2) Subsection (1) applies to a person who --
(a) holds or has held office as the Registrar or a
Deputy Registrar; or
(b) otherwise is or has been an officer of the
Commission.
20 97XW. Proceedings under this Division
(1) The Commission may make regulations under
section 113 providing for the practice and procedure to
be followed for the purposes of --
(a) an application under section 97WV, 97XI or
25 97XM; and
(b) an appeal under section 97XB or 97XQ.
(2) Provision made under subsection (1)(a) must not be
inconsistent with the provisions that have effect under
section 97XL(1).
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(3) Subject to subsection (1)(b), the Commission may
exercise such of the powers set out in sections 27, 28
and 33 as the Commission considers it is necessary or
expedient to exercise for the purposes of an appeal
5 under section 97XB or 97XQ.
Division 10 -- Certain conduct prohibited
97XX. Purpose of this Division
The purpose of this Division is to ensure, as far as
possible, that employees are given --
10 (a) a genuine choice as to their employment
arrangements; and
(b) sufficient information to enable them to make
informed choices about those arrangements.
97XY. Enforcement of prohibitions in this Division
15 A contravention of section 97XZ, 97Y, 97YB, 97YD,
97YE or 97YF is not an offence but those sections --
(a) are civil penalty provisions for the purposes of
section 83E; and
(b) in the case of sections 97YB and 97YF, are also
20 enforceable under sections 97YC and 97YG
respectively.
97XZ. Making employment, transfer or promotion
conditional on EEA being entered into
(1) Except as provided by section 97YA, a person must
25 not --
(a) offer a person --
(i) employment; or
(ii) a promotion or transfer in employment;
or
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(b) intimate to a person that he or she will be --
(i) employed; or
(ii) promoted or transferred in employment,
only if the person agrees to the employment or the
5 continued employment, as the case may be, being
under an EEA to be entered into.
(2) Except as provided by section 97YA, a person must
not --
(a) offer a represented person --
10 (i) employment; or
(ii) a promotion or transfer in employment;
or
(b) intimate to the representative of a represented
person that the represented person will be --
15 (i) employed; or
(ii) promoted or transferred in employment,
only if the representative agrees to the employment or
the continued employment, as the case may be, being
under an EEA to be entered into.
20 97Y. Certain advertising
A person must not advertise the availability of
employment in terms that show an intention that any
employment relationship is to be under an EEA and not
otherwise.
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97YA. Exception to sections 97XZ and 97YB
(1) Section 97XZ(1) or (2) or 97YB does not apply to an
offer of employment made, or an intimation of
employment given, that would otherwise come within
5 that provision if --
(a) there is no award, enterprise order or industrial
agreement containing supported wage
provisions that extends to the employee; and
(b) the employment is being arranged through an
10 entity that provides employment services for
persons with disabilities.
(2) In any proceedings under this Act it is for the person
who made the offer or gave the intimation to satisfy the
industrial magistrate's court that the exception in
15 subsection (1) applies to the offer or intimation.
(3) In this section and section 97YB --
"award" includes an award under the Coal Industry
Tribunal of Western Australia Act 1992.
97YB. Employer offering EEA to give choice as to
20 employment arrangements
(1) This section applies where --
(a) a person offers --
(i) to employ a person; or
(ii) to promote or transfer an employee,
25 in terms that the prospective or continued
employment, as the case may be, is to be under
an EEA to be entered into; and
(b) the offer does not come within the exception in
section 97YA.
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(2) Where this section applies the person must also offer
the employee the choice of the employment or
continued employment being --
(a) under any relevant award or enterprise order;
5 or
(b) if there is no such award or enterprise order,
under a contract of employment containing the
same provisions as those of the proposed EEA
other than --
10 (i) the provision specifying the term of the
EEA; and
(ii) the EEA dispute provisions.
(3) An offer required by subsection (2) must be made at
the same time and in the same way as the offer referred
15 to in subsection (1).
97YC. Order for compliance with section 97YB
(1) If an industrial magistrate's court determines under
section 83E that a person has contravened
subsection (2) of section 97YB, the court may order the
20 person to offer the employee the choices set out in that
subsection.
(2) It does not matter for the purposes of subsection (1)
whether or not the employee agreed to the employment
or continued employment being under the proposed
25 EEA.
(3) The court may make an order under this section in
addition to imposing a penalty under section 83E.
(4) A person must comply with an order made against him
or her under this section.
30 Penalty: $5 000 and a daily penalty of $500.
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97YD. Threats and intimidation
(1) A person must not by threats or intimidation persuade
or attempt to persuade another person to enter into, or
not to enter into --
5 (a) an EEA;
(b) an EEA that contains or does not contain
particular provisions; or
(c) a cancellation agreement.
(2) A person must not intimidate an employee, or threaten
10 injury or harm to the person or property of an
employee, because the employee is or is not a party
to --
(a) an EEA;
(b) an EEA that contains or does not contain
15 particular provisions; or
(c) a cancellation agreement.
(3) A person must not intimidate a representative, or
threaten injury or harm to the person or property of a
representative, because the represented person is or is
20 not a party to --
(a) an EEA;
(b) an EEA that contains or does not contain
particular provisions; or
(c) a cancellation agreement.
25 97YE. Misinformation
A person must not make or give to another person any
misleading statement or information with intent to
persuade that other person to enter into, or not to enter
into --
30 (a) an EEA;
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(b) an EEA that contains or does not contain
particular provisions; or
(c) a cancellation agreement.
97YF. Dismissal or detriment because of refusal to make
5 or cancel EEA
An employer must not --
(a) dismiss an employee;
(b) alter an employee's position to his or her
disadvantage;
10 (c) refuse to promote or transfer an employee; or
(d) otherwise injure an employee in relation to his
or her employment,
for the reason, or for reasons that include the reason,
that the employee, or where applicable the
15 representative of a represented person, has refused to
enter into --
(e) an EEA;
(f) an EEA that contains or does not contain
particular provisions; or
20 (g) a cancellation agreement.
97YG. Employee's remedy for breach of section 97YF
(1) If under section 83E an industrial magistrate's court
determines that an employer has contravened
section 97YF in relation to a person who is or was an
25 employee, the court may make an order under this
section.
(2) The court may order the employer --
(a) to reinstate the person if he or she was
dismissed from employment; or
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(b) subject to subsection (5), to pay to the person
compensation for any loss or injury suffered as
a result of the contravention,
or to do both of those things.
5 (3) The court may make an order under this section in
addition to imposing a penalty under section 83E.
(4) A person is not entitled to compensation both under
this section and otherwise for the same dismissal, loss
or injury.
10 (5) The court does not have jurisdiction under
subsection (2) to order that there be paid --
(a) to an employee who has been dismissed, any
amount exceeding 6 months' remuneration of
the employee; and
15 (b) in any other case, any amount exceeding $5 000
or such other amount as is prescribed by the
regulations.
(6) For the purposes of subsection (5)(a) the court may
calculate the amount on the basis of an average rate
20 received during any relevant period of employment.
(7) A person must comply with an order made against him
or her under this section.
Penalty: $5 000 and a daily penalty of $500.
97YH. Burden of proof
25 In any proceedings for a contravention of
section 97YF, if it is proved that an employer took any
course of action mentioned in that section against or in
relation to an employee after the employee, or where
applicable the representative of a represented person,
30 refused to enter into --
(a) an EEA;
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(b) an EEA that contains or does not contain
particular provisions; or
(c) a cancellation agreement,
it is for the employer to prove that he or she took that
5 course of action for some reason other than because the
employee or representative refused to enter into any
EEA or cancellation agreement, as the case may be.
Division 11 -- General
97YI. Review of Divisions 5, 6 and 7
10 (1) The Commission in Court Session, as required by
subsection (2), is to --
(a) carry out a review of the operation and
effectiveness of Divisions 5, 6 and 7, including
Schedules 4 and 5; and
15 (b) submit a report based on the review to the
Minister with any recommendation it thinks fit
to make.
(2) A review is to be carried out --
(a) as soon as is practicable after the expiry of
20 12 months beginning with the day on which
section 4 of the Labour Relations Reform
Act 2002 comes into operation; and
(b) at such other times as the Minister may in
writing request.
25 97YJ. Regulations
The Governor may make any regulation that is required
or permitted to be made, or necessary or convenient,
for the purposes of this Part.
".
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s. 5
5. Schedules 4 and 5 inserted
At the end of the Act the following Schedules are inserted --
"
Schedule 4 -- Registration requirements for EEAs
5 [s. 97VB]
1. When EEA is in order for registration
(1) An EEA is in order for registration if --
(a) section 97UF(1) does not apply to it;
(b) it complies with sections 97UL, 97UN and 97US;
10 (c) if section 97UM applies, it has been signed in
accordance with, and by a person who meets the
requirements of, section 97UM(2);
(d) the employer has complied with section 97UG;
(e) it passes the no-disadvantage test;
15 (f) it does not purport to provide for a condition of
employment that is less favourable to the employee
than a minimum condition of employment under the
MCE Act;
Note: If a provision of an employer-employee agreement is
20 less favourable as mentioned in paragraph (f) it is of no
effect by virtue of section 5(2) of the Minimum
Conditions of Employment Act 1993.
(g) in relation to the making of the EEA, the employer
did not --
25 (i) offer employment to the employee; or
(ii) intimate to the employee that he or she
would be employed,
only if he or she agreed to the employment being
under an EEA;
30 (h) in relation to the making of the EEA, the employer
did not --
(i) offer the employee a transfer or promotion
in his or her employment; or
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(ii) intimate to the employee that he or she
would be transferred or promoted,
only if he or she agreed to the employment being
under an EEA;
5 (i) each party appears to understand his or her rights
and obligations under the EEA;
(j) no party or a representative was persuaded by
threats or intimidation to enter into the EEA; and
(k) each party genuinely wishes to have the EEA
10 registered.
(2) Subclause (1)(g) does not apply to an offer of employment
made, or an intimation of employment given, that would
otherwise come within that provision if --
(a) there is no award or industrial agreement containing
15 supported wage provisions that extends to the
employee; and
(b) the employment was arranged through an entity that
provides employment services for persons with
disabilities.
20 (3) In subclause (1)(i) and (k) --
"party" means --
(a) the employer and the employee; or
(b) if the employee is a represented person, the
employer and the representative.
25 Schedule 5 -- Powers to obtain information, and
related provisions
[s. 97VC(4), 97WM]
1. Powers to obtain information
An authorised person may --
30 (a) by notice in writing require the attendance of any
person at a place and time specified in the notice;
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(b) by notice in writing require any person to produce
at a place and time specified in the notice any book,
document or record that is in the possession or
under the control of that person;
5 (c) inspect any book, document or record produced and
retain it for such reasonable period as he or she
thinks fit, and make copies of it or any of its
contents;
(d) require any person to take an oath or make an
10 affirmation and may administer an oath or
affirmation to any person;
(e) require any person to answer any question put to
that person;
(f) take statements and receive affidavits;
15 (g) enter any relevant workplace.
2. Obstruction
A person must not hinder or obstruct an authorised person in
the exercise of any power conferred by this Schedule.
Penalty: $2 000.
20 3. False statements
A person must not make a statement or give an answer to an
authorised person if the first-mentioned person knows that
the statement or answer is false or misleading in a material
particular.
25 Penalty: $2 000.
4. Failure to comply with notice
(1) A person must not, without lawful excuse, refuse or fail --
(a) to attend; or
(b) to produce a book, document or record,
30 as required by a notice under clause 1.
Penalty: $2 000.
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s. 6
(2) A person must not, without lawful excuse, refuse or fail --
(a) to be sworn or make an affirmation; or
(b) to answer a question,
when required to do so under clause 1.
5 Penalty: $2 000.
5. Legal professional privilege
Nothing in this Schedule prevents a person from refusing to
answer a question or produce a book, document or record
because the answer would relate to, or the book, document
10 or record contains, information in respect of which the
person claims legal professional privilege.
6. Incriminating answers or documents
(1) It is not a lawful excuse for the purposes of clause 4 for a
person to refuse to answer a question or produce a book,
15 document or record on the grounds that the answer or the
book, document or record might tend to incriminate the
person, or make the person liable to a penalty.
(2) Despite subclause (1), an answer given or any statement
made for the purposes of clause 4 is not, except in
20 proceedings under clause 2, 3 or 4, admissible in evidence in
any civil or criminal proceedings against the person giving
the answer or making the statement.
".
Division 2 -- Amendments to the Industrial Relations Act 1979
25 consequential on Division 1
6. Section 7 amended
(1) Section 7(1) is amended by inserting in the appropriate
alphabetical positions the following definitions --
"
30 "employer-employee agreement" or "EEA" means
an employer-employee agreement provided for by
section 97UA;
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Division 2 Amendments to the Industrial Relations Act 1979
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s. 7
"representative" has the meaning given by
section 97X or 97XO;
"represented person" has the meaning given by
section 97X or 97XO;
5 ".
(2) After section 7(4) the following subsection is inserted in the
appropriate numerical position --
"
(7) Notes in this Act are provided to assist understanding
10 and do not form part of the Act.
".
7. Section 29 amended
After section 29(1) the following subsection is inserted --
"
15 (1a) A party to an employer-employee agreement has the
right to refer to the Commission constituted by a
Commissioner where the Commission so constituted is
the relevant industrial authority under Part VID --
(a) any question, dispute or difficulty that the
20 Commission as so constituted has jurisdiction
to determine under section 97WI; or
(b) an allegation referred to in section 97WK(2).
".
8. Section 49 amended
25 After section 49(2a) the following subsection is inserted --
"
(2b) An appeal does not lie under this section from a
determination --
(a) of a relevant industrial authority --
30 (i) under section 97VP; or
(ii) in an arbitration under any EEA dispute
provision of the kind referred to in
section 97UP;
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s. 9
or
(b) of the Commission under section 97XC or
97XQ.
".
5 9. Section 80E amended
After section 80E(2) the following subsections are inserted --
"
(3) An Arbitrator also has the jurisdiction conferred on an
Arbitrator as a relevant industrial authority by --
10 (a) Part VID Division 5 Subdivision 3;
(b) section 97WI; and
(c) section 97WK.
(4) The jurisdiction referred to in subsection (3) is to be
exercised in accordance with the relevant provisions of
15 Part VID, and the provisions of --
(a) subsection (6); and
(b) section 80G,
do not apply to the exercise of any such jurisdiction by
an Arbitrator.
20 ".
10. Section 80F amended
After section 80F(3) the following subsection is inserted --
"
(4) A Government officer who is an employee under an
25 employer-employee agreement may refer to an
Arbitrator where an Arbitrator is the relevant industrial
authority under Part VID --
(a) any question, dispute or difficulty that an
Arbitrator has jurisdiction to determine under
30 section 97WI; and
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s. 11
(b) an allegation referred to in section 97WK(2).
".
11. Section 80R amended
After section 80R(2b) the following subsections are inserted --
5 "
(2c) The Board also has the jurisdiction conferred on it as a
relevant industrial authority by --
(a) Part VID Division 5 Subdivision 3;
(b) section 97WI; and
10 (c) section 97WK.
(2d) The jurisdiction referred to in subsection (2c) is to be
exercised in accordance with the relevant provisions of
Part VID, and the provisions of --
(a) subsection (3); and
15 (b) section 80W,
do not apply to the exercise of any such jurisdiction by
the Board.
".
12. Section 80S amended
20 After section 80S(2) the following subsection is inserted --
"
(3) A railway officer who is an employee under an
employer-employee agreement may refer to the Board
where the Board is the relevant industrial authority
25 under Part VID --
(a) any question, dispute or difficulty that the
Board has jurisdiction to determine under
section 97WI; and
(b) an allegation referred to in section 97WK(2).
30 ".
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Amendments to other Acts consequential on Division 1 Division 3
s. 13
13. Section 81A amended
Section 81A is amended by inserting before "110" --
" 97V(3), 97VJ(3), 97YC, 97YG, ".
14. Section 81CA amended
5 Section 81CA(1) is amended in the definition of "general
jurisdiction", in paragraph (a), by inserting before "110" --
" 97V(3), 97VJ(3), 97YC, 97YG, ".
15. Section 103 amended
Section 103(3) is amended, in the definition of "breach", by
10 inserting after "industrial agreement," --
" employer-employee agreement, ".
Division 3 -- Amendments to other Acts consequential
on Division 1
16. Coal Industry Tribunal of Western Australia Act 1992
15 amended
Section 3A of the Coal Industry Tribunal of Western Australia
Act 1992* is amended by inserting after "1993" --
" and Part VID of the Industrial Relations Act 1979 ".
[* Act No. 37 of 1992.
20 For subsequent amendments see 2000 Index to Legislation of
Western Australia, Table 1, p. 65-6.]
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Division 3 Amendments to other Acts consequential on Division 1
s. 17
17. Conservation and Land Management Act 1984 amended
Section 20(5) of the Conservation and Land Management
Act 1984* is amended by inserting after "1993" --
" , Part VID of the Industrial Relations Act 1979 ".
5 [* Reprinted as at 26 March 1999.
For subsequent amendments see 2000 Index to Legislation of
Western Australia, Table 1, p. 75.]
18. Forest Products Act 2000 amended
Section 39(4) of the Forest Products Act 2000* is amended by
10 inserting after "1993" --
" , Part VID of the Industrial Relations Act 1979 ".
[* Act No. 34 of 2000.
For subsequent amendments see Act No. 10 of 2001.]
19. Grain Marketing Act 1975 amended
15 (1) The amendments in this section are to the Grain Marketing
Act 1975*.
[* Reprinted as at 19 November 1999.
For subsequent amendments see 2000 Index to Legislation of
Western Australia, Table 1, p. 188, and Act No. 10 of 2001.]
20 (2) Section 17 is amended as follows:
(a) by inserting before "Subject to any" the subsection
designation "(1)";
(b) by deleting "the Minimum Conditions of Employment
Act 1993 and Workplace Agreements Act 1993" and
25 inserting instead --
" relevant written laws ".
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s. 20
(3) At the end of section 17 the following subsection is inserted --
"
(2) In subsection (1) --
"relevant written laws" means --
5 (a) Part VID of the Industrial Relations
Act 1979;
(b) the Minimum Conditions of Employment
Act 1993; and
(c) the Workplace Agreements Act 1993.
10 ".
20. Long Service Leave Act 1958 amended
Section 4(3)(b) of the Long Service Leave Act 1958* is
amended by inserting after "workplace agreement" --
"
15 , an employer-employee agreement under
Part VID of the Industrial Relations Act 1979
".
[* Reprinted as approved 11 July 1974.
For subsequent amendments see 2000 Index to Legislation of
20 Western Australia, Table 1, p. 265-6.]
21. Marketing of Potatoes Act 1946 amended
(1) The amendments in this section are to the Marketing of Potatoes
Act 1946*.
[* Reprinted as at 7 January 2000.
25 For subsequent amendments see Act No. 10 of 2001.]
(2) Section 18(1) is amended by deleting "applicable order, award
or agreement under the Industrial Relations Act 1979 or any
workplace agreement in force under the Workplace Agreements
Act 1993" and inserting instead --
30 " relevant instrument ".
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Division 3 Amendments to other Acts consequential on Division 1
s. 22
(3) After section 18(1) the following subsection is inserted --
"
(1a) In subsection (1) --
"relevant instrument" means --
5 (a) an applicable order, award or industrial
agreement under the Industrial Relations
Act 1979 or an employer-employee
agreement under Part VID of that Act; or
(b) a workplace agreement under the Workplace
10 Agreements Act 1993.
".
22. Minimum Conditions of Employment Act 1993 amended
(1) The amendments in this section are to the Minimum Conditions
of Employment Act 1993*.
15 [* Reprinted as at 4 June 1997.]
(2) Section 3(1) is amended by inserting in the appropriate
alphabetical position the following definition --
"
"employer-employee agreement" means an
20 employer-employee agreement under Part VID of
the IR Act;
".
(3) Section 5(1) is amended as follows:
(a) by inserting after paragraph (a) the following
25 paragraph --
" (aa) in any employer-employee agreement; ";
(b) in paragraph (c), by inserting after "agreement" --
" , an employer-employee agreement ".
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Labour Relations Reform Bill 2002
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Amendments to other Acts consequential on Division 1 Division 3
s. 23
(4) Section 5(2) is amended by inserting after "agreement, an" --
" employer-employee agreement, an ".
(5) After section 7(a) following paragraph is inserted --
"
5 (aa) where the condition is implied in an
employer-employee agreement, under
section 83 of the IR Act;
".
(6) Section 32 is amended, in the definition of "continuous service"
10 in paragraph (b), by inserting after "agreement, an" --
" employer-employee agreement, an ".
(7) Each provision specified in the Table to this subsection is
amended by inserting after "workplace agreement" --
" , employer-employee agreement ".
15 Table
s. 17B(1) s. 18(1)
s. 17C(1)(d) s. 18(2)
s. 17D(1)(b) s. 39(b)
s. 17D(2) s. 44(1)
23. Port Authorities Act 1999 amended
(1) Section 16(4)(a)(iv) and (b) of the Port Authorities Act 1999*
are amended by inserting after "99" --
" (1) ".
20 (2) After section 16(4) of the Port Authorities Act 1999* the
following subsection is inserted --
"
(4a) A matter referred to in subsection (4) cannot be varied
or affected by an employer-employee agreement made
25 under Part VID of the Industrial Relations Act 1979.
".
page 81
Labour Relations Reform Bill 2002
Part 2 Amendments to provide for employer-employee agreements
Division 3 Amendments to other Acts consequential on Division 1
s. 24
(3) After section 16(5) of the Port Authorities Act 1999* the
following subsection is inserted --
"
(6) Nothing in this section other than subsection (4a)
5 affects the operation of Part VID of the Industrial
Relations Act 1979.
".
[* Act No. 22 of 1999.
For subsequent amendments see 2000 Index to Legislation of
10 Western Australia, Table 1, p. 353, and Acts Nos. 43 of 2000
and 10 of 2001.]
24. Public and Bank Holidays Act 1972 amended
Section 3 of the Public and Bank Holidays Act 1972* is
amended as follows:
15 (a) by deleting "or of ";
(b) by inserting after "1993" --
"
or an employer-employee agreement under Part VID of
the Industrial Relations Act 1979
20 ".
[* Act No. 63 of 1972.
For subsequent amendments see 2000 Index to Legislation of
Western Australia, Table 1, p. 361.]
25. Public Sector Management Act 1994 amended
25 (1) The amendments in this section are to the Public Sector
Management Act 1994*.
[* Reprinted as at 9 February 2001.
For subsequent amendments see Acts Nos. 43 and
53 of 2000.]
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Labour Relations Reform Bill 2002
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Amendments to other Acts consequential on Division 1 Division 3
s. 25
(2) Section 29(1)(h)(i) is amended as follows:
(a) by deleting "or of ";
(b) by inserting after "1993" --
"
5 or of an employer-employee agreement
under Part VID of the Industrial
Relations Act 1979
".
(3) Section 30(d) is amended as follows:
10 (a) by deleting "or any" and inserting instead --
" , any ";
(b) by inserting after "1993" --
"
or of an employer-employee agreement under
15 Part VID of the Industrial Relations Act 1979
".
(4) Section 53(1) is amended as follows:
(a) by deleting "or any" and inserting instead --
" , any ";
20 (b) by inserting after "1993" --
"
or of an employer-employee agreement under Part VID
of the Industrial Relations Act 1979
".
25 (5) Section 64(1) is amended as follows:
(a) by deleting "or any" and inserting instead --
" , any ";
(b) by inserting after "1993" --
"
30 or of an employer-employee agreement under Part VID
of the Industrial Relations Act 1979
".
page 83
Labour Relations Reform Bill 2002
Part 2 Amendments to provide for employer-employee agreements
Division 3 Amendments to other Acts consequential on Division 1
s. 26
(6) Section 99 is amended by inserting before "There are" the
subsection designation "(1)".
(7) At the end of section 99 the following subsection is inserted --
"
5 (2) A matter referred to in subsection (1) cannot be varied
or affected by an employer-employee agreement made
under Part VID of the Industrial Relations Act 1979.
".
26. Zoological Parks Authority Act 2001 amended
10 Section 25(4) of the Zoological Parks Authority Act 2001* is
amended by inserting after "1993" --
" , Part VID of the Industrial Relations Act 1979 ".
[* Act No. 24 of 2001.]
27. Inserting reference to "Part VID of the Industrial Relations
15 Act 1979" in various Acts
Each provision specified in the Table to this section is amended
by inserting after "1993" --
" or Part VID of the Industrial Relations Act 1979 ".
Table
Botanic Gardens and Parks Authority Act 1998 s. 24(3)
Curriculum Council Act 1997 s. 21(4)
Electricity Corporation Act 1994 s. 15(4)
Fire and Emergency Services Authority of Western
Australia Act 1998 s. 20(3)
School Education Act 1999 s. 236(5)
Transport Co-ordination Act 1966 s. 8(3a)
Water and Rivers Commission Act 1995 s. 23(4)
Water Corporation Act 1995 s. 15(4)
Western Australian Treasury Corporation Act 1986 s. 8B(4)
page 84
Labour Relations Reform Bill 2002
Amendments to Workplace Agreements Act 1993, transitional Part 3
provisions and consequential amendments to other Acts
Amendments to Workplace Agreements Act 1993 Division 1
s. 28
Part 3 -- Amendments to Workplace Agreements
Act 1993, transitional provisions and consequential
amendments to other Acts
Division 1 -- Amendments to Workplace Agreements Act 1993
5 28. The Act amended
The amendments in this Division are to the Workplace
Agreements Act 1993*.
[* Reprinted as at 4 August 1997.
For subsequent amendments see 2000 Index to Legislation of
10 Western Australia, Table 1, p. 504.]
29. Long title replaced
The long title is repealed and the following long title is inserted
instead --
"
15 An Act to make provision after the commencement of
section 31 of the Labour Relations Reform Act 2002 --
· for employers and employees to be no longer empowered
to make the employment agreements that were
authorised by this Act as in force before that
20 commencement;
· for the times when existing agreements automatically
terminate;
· for the effect and enforcement of existing agreements
until their termination; and
25 · for the expiry of the Act at a time when all agreements
have terminated,
and for related purposes.
".
page 85
Labour Relations Reform Bill 2002
Part 3 Amendments to Workplace Agreements Act 1993, transitional
provisions and consequential amendments to other Acts
Division 1 Amendments to Workplace Agreements Act 1993
s. 30
30. Section 3 amended
Section 3 is amended as follows:
(a) by deleting the definitions of "Commissioner" and
"Public Service Act";
5 (b) by inserting in the appropriate alphabetical positions the
following definitions --
"
"Commission" has the same meaning as it has in the
Industrial Relations Act 1979;
10 "designated day" means the day on which section 31
of the Labour Relations Reform Act 2002 comes
into operation;
"Registrar" and "Deputy Registrar" have the same
meanings as they have in the Industrial Relations
15 Act 1979;
"repealed", in relation to a section of a particular
number, means the section in this Act of that
number repealed by a provision of Part 3
Division 1 of the Labour Relations Reform
20 Act 2002;
".
31. Part 1A inserted
After section 4 the following Part is inserted --
"
25 Part 1A -- Phasing out and expiry of Act
4A. Expiry of Act
This Act expires at the end of one year commencing
with the designated day.
page 86
Labour Relations Reform Bill 2002
Amendments to Workplace Agreements Act 1993, transitional Part 3
provisions and consequential amendments to other Acts
Amendments to Workplace Agreements Act 1993 Division 1
s. 31
4B. Further workplace agreements cannot be made
On and after the designated day a workplace agreement
cannot be made for the purposes of this Act.
4C. Limit on duration of agreements registered on or
5 after 22 March 2001
(1) This section applies to a workplace agreement that --
(a) was registered on or after 22 March 2001; and
(b) has effect immediately before the designated
day.
10 (2) The agreement ceases to have effect --
(a) at the end of 6 months beginning with the
designated day;
(b) on the day on which the parties have agreed
that it is to cease to have effect, being a day
15 provided for --
(i) by the agreement; or
(ii) by agreement between the parties under
section 24(1);
or
20 (c) on a day on which section 14(1) or 43(4)
becomes applicable to the agreement,
whichever happens first.
4D. Limit on duration of arrangements under repealed
section 19(4)(b)
25 (1) This section applies to an arrangement under repealed
section 19(4)(b) that has effect immediately before the
designated day.
(2) The arrangement has effect according to its terms
despite the repeal of section 19.
page 87
Labour Relations Reform Bill 2002
Part 3 Amendments to Workplace Agreements Act 1993, transitional
provisions and consequential amendments to other Acts
Division 1 Amendments to Workplace Agreements Act 1993
s. 31
(3) The arrangement ceases to have effect --
(a) at the end of 6 months beginning with the
designated day;
(b) on the day on which the parties agree in writing
5 that the arrangement is to cease to have effect;
or
(c) on the termination of the employee's contract
of employment,
whichever happens first.
10 4E. Termination of unregistered individual workplace
agreements
(1) This section applies to an individual workplace
agreement that was signed by the parties to it but that
immediately before the designated day --
15 (a) had not been lodged for registration under
repealed section 29 or made ineffective by
repealed section 27; or
(b) if lodged for registration, had not been
registered under repealed section 31.
20 (2) The agreement ceases to have effect on the designated
day.
4F. Limit on duration of agreements not covered by
section 4C or 4E
(1) This section applies to any workplace agreement
25 that --
(a) has effect immediately before the designated
day; and
(b) does not come within section 4C or 4E.
page 88
Labour Relations Reform Bill 2002
Amendments to Workplace Agreements Act 1993, transitional Part 3
provisions and consequential amendments to other Acts
Amendments to Workplace Agreements Act 1993 Division 1
s. 31
(2) The agreement ceases to have effect --
(a) at the end of one year beginning with the
designated day;
(b) on the day on which the parties have agreed
5 that it is to cease to have effect, being a day
provided for --
(i) by the agreement; or
(ii) by agreement between the parties under
section 24(1);
10 or
(c) on a day on which section 14(1) or 43(4)
becomes applicable to the agreement,
whichever happens first.
4G. Termination of effect of agreement under repealed
15 section 23(1)
(1) This section applies to an agreement under repealed
section 23(1) that was signed by the parties to it but
that immediately before the designated day --
(a) had not been lodged for registration under
20 repealed section 29 or made ineffective by
repealed section 27; or
(b) if lodged for registration, had not been
registered under repealed section 31.
(2) On the designated day --
25 (a) the agreement ceases to have effect; and
(b) the employee ceases to be a party to the
collective workplace agreement concerned.
(3) The reference in subsection (1) to an agreement under
repealed section 23(1) includes an agreement under
30 that section as applied by repealed section 40J.
page 89
Labour Relations Reform Bill 2002
Part 3 Amendments to Workplace Agreements Act 1993, transitional
provisions and consequential amendments to other Acts
Division 1 Amendments to Workplace Agreements Act 1993
s. 31
4H. Employment conditions if workplace agreement or
arrangement terminated or employee ceases to be a
party
(1) This section applies where --
5 (a) a workplace agreement or an arrangement
under repealed section 19(4)(b) ceases to have
effect as provided by section 4C, 4D, 4E or 4F;
or
(b) an employee ceases to be a party to a collective
10 workplace agreement as provided by
section 4G.
(2) The employment of an employee becomes subject to a
contract of employment under this section.
(3) If --
15 (a) the workplace agreement that ceased to have
effect was an individual workplace agreement;
or
(b) the arrangement under repealed
section 19(4)(b) that ceased to have effect
20 followed on the expiry of an individual
workplace agreement,
the contract of employment is one containing --
(c) the same provisions as those of the workplace
agreement or arrangement that has ceased to
25 have effect, other than the provisions implied
by section 18; and
(d) if the employee had an existing contract of
employment relating to the workplace
agreement or arrangement, the provisions of
30 that contract.
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Labour Relations Reform Bill 2002
Amendments to Workplace Agreements Act 1993, transitional Part 3
provisions and consequential amendments to other Acts
Amendments to Workplace Agreements Act 1993 Division 1
s. 31
(4) If --
(a) the workplace agreement that ceased to have
effect was a collective workplace agreement; or
(b) the arrangement under repealed
5 section 19(4)(b) that ceased to have effect
followed on the expiry of a collective
workplace agreement,
the contract of employment is an individual contract --
(c) applying to the employee such of the provisions
10 of the collective workplace agreement or
arrangement that has ceased to have effect,
other than the provisions implied by section 18,
as were applicable to the employee; and
(d) containing, in addition, the provisions of the
15 existing contract of employment that the
employee had relating to the workplace
agreement or arrangement.
(5) A contract of employment referred to in subsection (3)
or (4) has effect, and may be varied or terminated, as if
20 it were a contract entered into between the employer
and the employee.
(6) Despite subsection (2) the employer and the employee
are bound by --
(a) any award that extends to them; or
25 (b) any employer-employee agreement under
Part VID of the Industrial Relations Act 1979
to which they are parties.
(7) Where subsection (6)(a) applies, the award ordinary
rate of pay (howsoever described in the award) shall,
30 for the purposes of the award only, be the rate of pay as
prescribed in the award and not that prescribed in the
contract of employment.
page 91
Labour Relations Reform Bill 2002
Part 3 Amendments to Workplace Agreements Act 1993, transitional
provisions and consequential amendments to other Acts
Division 1 Amendments to Workplace Agreements Act 1993
s. 31
(8) Where subsection (6)(a) applies, nothing in this section
or in any other enactment or law requires an employer
to pay an employee more than the greater of --
(a) the employee's entitlement arising under the
5 contract of employment; or
(b) the employee's entitlement arising under the
relevant award,
whichever is the greater when assessed on a yearly
basis.
10 (9) This section does not apply to --
(a) a workplace agreement that was registered
under repealed section 40I; or
(b) an arrangement under repealed section 19(4)(b)
that followed on the expiry of such a workplace
15 agreement.
Note: For the position when an agreement or arrangement referred
to in subsection (9) ceases to have effect, see section 152 of
the Workplace Relations Act 1996 of the Commonwealth.
4I. Rights, obligations and proceedings not affected by
20 termination of agreement or arrangement
The termination of a workplace agreement or an
arrangement under repealed section 19(4)(b) by
operation of this Division does not affect --
(a) any --
25 (i) right or entitlement that accrued; or
(ii) obligation or liability that was incurred,
under the agreement or arrangement before the
termination; or
(b) any proceedings or remedy in respect of
30 anything referred to in paragraph (a).
page 92
Labour Relations Reform Bill 2002
Amendments to Workplace Agreements Act 1993, transitional Part 3
provisions and consequential amendments to other Acts
Amendments to Workplace Agreements Act 1993 Division 1
s. 32
4J. This Part to prevail
This Part has effect despite any provision of this Act or
a workplace agreement or any other agreement or
arrangement.
5 ".
32. Section 8 replaced
Section 8 is repealed and the following section is inserted
instead --
"
10 8. Effect of addition of employee as party
(1) Where an employee under a contract of employment
was added as a party to a collective workplace
agreement under the repealed provision no award,
whether existing or future, applies to --
15 (a) that contract of employment; or
(b) the employer or the employee as a party to that
contract,
so long as the workplace agreement remains in force.
(2) In subsection (1) --
20 "the repealed provision" means subsection (1) of
repealed section 23, including that subsection as
applied by section 40J.
".
33. Section 9 replaced
25 Section 9 is repealed and the following section is inserted
instead --
"
9. Making of collective workplace agreement
Before the designated day a workplace agreement
30 could be entered into between an employer and all or
some of the employer's employees.
".
page 93
Labour Relations Reform Bill 2002
Part 3 Amendments to Workplace Agreements Act 1993, transitional
provisions and consequential amendments to other Acts
Division 1 Amendments to Workplace Agreements Act 1993
s. 34
34. Section 10 amended
Section 10(1) is repealed and the following subsection is
inserted instead --
"
5 (1) Before the designated day a workplace agreement
could be entered into between an employer and one of
the employer's employees.
".
35. Section 11 repealed
10 Section 11 is repealed.
36. Section 12 amended
Section 12(1) is amended as follows:
(a) in paragraph (a), by deleting "sections 14(1) and 32;"
and inserting instead --
15 " section 14(1); and ";
(b) by deleting the semicolon in paragraph (b) and "and"
after it and inserting a full stop instead;
(c) by deleting paragraph (c).
37. Section 15 amended
20 (1) Section 15(1) is repealed and the following subsection is
inserted instead --
"
(1) The employer, the employees or any employee are
entitled to be represented by a bargaining agent in
25 connection with the operation of a workplace
agreement.
".
page 94
Labour Relations Reform Bill 2002
Amendments to Workplace Agreements Act 1993, transitional Part 3
provisions and consequential amendments to other Acts
Amendments to Workplace Agreements Act 1993 Division 1
s. 38
(2) Section 15(3) is amended as follows:
(a) in paragraph (a), by inserting after the semicolon --
" and ";
(b) in paragraph (b), by deleting the semicolon and "and"
5 after it and inserting a full stop instead;
(c) by deleting paragraph (c).
(3) Section 15(8) is repealed.
38. Section 16 repealed
Section 16 is repealed.
10 39. Section 18 amended
Section 18(2) is repealed.
40. Sections 19 and 20 repealed
Sections 19 and 20 are repealed.
41. Section 21 amended
15 Section 21(3) is repealed.
42. Section 23 repealed
Section 23 is repealed.
43. Section 24 amended
Section 24(2), (3) and (4) are repealed and the following
20 subsection is inserted instead --
" (2) A workplace agreement cannot be amended. ".
44. Section 25 repealed
Section 25 is repealed.
page 95
Labour Relations Reform Bill 2002
Part 3 Amendments to Workplace Agreements Act 1993, transitional
provisions and consequential amendments to other Acts
Division 1 Amendments to Workplace Agreements Act 1993
s. 45
45. Part 2 Division 4 heading amended
The heading to Part 2 Division 4 is amended by deleting
"Registration" and inserting instead --
" Register ".
5 46. Sections 26 and 27 repealed
Sections 26 and 27 are repealed.
47. Section 28 amended
(1) Section 28(1) is repealed and the following subsection is
inserted instead --
10 "
(1) The Registrar is to keep a register of workplace
agreements and the other agreements that were
registered under this Division as in force immediately
before the commencement of section 47 of the Labour
15 Relations Reform Act 2002.
".
(2) Section 28(2) is amended by deleting "Commissioner" and
inserting instead --
" Registrar ".
20 48. Sections 29 to 38 repealed
Sections 29, 30, 31, 32, 33, 34, 35, 36, 37 and 38 are repealed.
49. Section 39 amended
(1) Section 39(1) is amended by deleting "lodged with or registered
by the Commissioner" and inserting instead --
25 " to which this subsection applies ".
page 96
Labour Relations Reform Bill 2002
Amendments to Workplace Agreements Act 1993, transitional Part 3
provisions and consequential amendments to other Acts
Amendments to Workplace Agreements Act 1993 Division 1
s. 50
(2) After section 39(1) the following subsection is inserted --
"
(1a) Subsection (1) applies to an agreement that
immediately before the designated day had been lodged
5 or registered under Part 2 Division 4 or under section
40F or 40I.
".
(3) Section 39(2)(c) is amended by deleting ", other than the
Western Australian Industrial Relations Commission".
10 (4) Section 39(4) is repealed and the following subsection is
inserted instead --
"
(4) Subsection (2) applies to a person who --
(a) has held office as the Commissioner under
15 repealed section 82 or has been a member of
the Commissioner's staff or a consultant under
repealed section 90; or
(b) holds or has held office as the Registrar or a
Deputy Registrar, or otherwise is or has been an
20 officer of the Commission.
".
50. Section 40 amended
Section 40 is amended as follows:
(a) by deleting "has been lodged with or registered by the
25 Commissioner" and inserting instead --
"
immediately before the designated day had been lodged
or registered under Part 2 Division 4 or under section
40F or 40I
30 ";
page 97
Labour Relations Reform Bill 2002
Part 3 Amendments to Workplace Agreements Act 1993, transitional
provisions and consequential amendments to other Acts
Division 1 Amendments to Workplace Agreements Act 1993
s. 51
(b) in paragraph (b) by deleting "Commissioner" in both
places where it appears and inserting instead --
" Registrar ".
51. Part 2A repealed
5 Part 2A is repealed.
52. Section 44 amended
Section 44(2) is amended by deleting "a workplace agreement
or other agreement under this Act" and inserting instead --
" an agreement under section 24(1) ".
10 53. Section 45 amended
Section 45(1) is amended by deleting "the Public Service Act
(including regulations under that Act)" and inserting instead --
" section 99 of the Public Sector Management Act 1994 ".
54. Section 48 amended
15 Section 48(2)(c) is deleted and the following paragraph is
inserted instead --
"
(c) an officer of the Commission authorised in
writing by the Registrar.
20 ".
55. Part 5 Division 1 heading amended
The heading to Part 5 Division 1 is amended by deleting "in
industrial magistrate's court".
page 98
Labour Relations Reform Bill 2002
Amendments to Workplace Agreements Act 1993, transitional Part 3
provisions and consequential amendments to other Acts
Amendments to Workplace Agreements Act 1993 Division 1
s. 56
56. Section 49 amended
Section 49 is amended by deleting the definition of "workplace
agreement" and inserting instead the following definition --
"
5 "workplace agreement" is to be taken to include --
(a) a contract of employment that is governed by
a workplace agreement; and
(b) a contract of employment referred to in
section 4H(3) or (4).
10 ".
57. Section 50 amended
Section 50(2) is repealed.
58. Section 51 replaced
Section 51 is repealed and the following section is inserted
15 instead --
"
51. Unfair dismissal
(1) This section applies if a person who was a party to a
workplace agreement as an employee claims that he or
20 she has been unfairly dismissed from employment in
breach of the provision implied in the agreement by
section 18.
(2) The person may refer the claim to the Commission in
accordance with section 29(1)(b)(i) of the Industrial
25 Relations Act 1979, and that Act is to apply in all
respects to the claim and all matters, including appeal
rights, relating to or arising from the claim.
(3) For the avoidance of doubt it is declared that the
meaning of the expression "unfairly dismissed" in --
30 (a) subsection (1) of this section; and
page 99
Labour Relations Reform Bill 2002
Part 3 Amendments to Workplace Agreements Act 1993, transitional
provisions and consequential amendments to other Acts
Division 1 Amendments to Workplace Agreements Act 1993
s. 59
(b) repealed section 51(1),
when read with the definition of "unfair" in section 49,
is the same as the meaning of the expression "harshly,
oppressively or unfairly dismissed" in
5 section 29(1)(b)(i) of the Industrial Relations Act 1979.
".
59. Section 52 repealed
Section 52 is repealed.
60. Section 55 amended
10 Section 55(b) is amended by inserting after "1979" --
"
or in the circumstances provided for by
section 94 of the Labour Relations Reform
Act 2002
15 ".
61. Section 56 amended
Section 56(2) is repealed.
62. Section 57 amended
(1) Section 57(1) is amended as follows:
20 (a) by deleting paragraph (b);
(b) by deleting paragraph (c)(ii);
(c) in paragraph (d) --
(i) by deleting "unfairly, or"; and
(ii) in subparagraph (ii), by deleting "unfair
25 dismissal or the".
(2) Section 57(2)(b) is deleted.
(3) Section 57(4) is amended by deleting "or by the unfair
dismissal, as the case may be".
page 100
Labour Relations Reform Bill 2002
Amendments to Workplace Agreements Act 1993, transitional Part 3
provisions and consequential amendments to other Acts
Amendments to Workplace Agreements Act 1993 Division 1
s. 63
63. Section 58 replaced
Section 58 is repealed and the following section is inserted
instead --
"
5 58. Monetary limit on jurisdiction
(1) The court does not have jurisdiction under
section 57(1)(c) or (d) or (4) to order the payment of an
amount exceeding the prescribed amount.
(2) For the purposes of subsection (1) the prescribed
10 amount is $5 000 or some other amount fixed by the
regulations
".
64. Section 60 amended
Section 60 is amended as follows:
15 (a) by deleting "Commissioner" and inserting instead --
" Registrar ";
(b) in paragraph (b), by inserting after "under" --
" repealed ";
(c) by inserting after "registered under" --
20 " repealed ".
65. Section 61 amended
Section 61(1) is amended by deleting "this Division" and
inserting instead --
" section 50 ".
page 101
Labour Relations Reform Bill 2002
Part 3 Amendments to Workplace Agreements Act 1993, transitional
provisions and consequential amendments to other Acts
Division 1 Amendments to Workplace Agreements Act 1993
s. 66
66. Section 66 amended
Section 66 is amended by deleting "a workplace agreement or
an agreement under section 23(1) or" and inserting instead --
" an agreement under section ".
5 67. Section 67 amended
Section 67(2) is repealed and the following subsection is
inserted instead --
"
(2) A person, not being duly authorised under section 15 to
10 represent an employer or employees in any dealings
about the operation of a collective workplace
agreement must not interfere in or obstruct the
dealings.
".
15 68. Section 73 repealed
Section 73 is repealed.
69. Parts 6 and 7 repealed
Parts 6 and 7 are repealed.
70. Section 101 repealed
20 Section 101 is repealed.
71. Section 101A amended
(1) Section 101A(1)(b) is amended by deleting "37 or".
(2) Section 101A(3)(e) is amended by deleting "37 or".
72. Schedule 2 repealed
25 Schedule 2 is repealed.
page 102
Labour Relations Reform Bill 2002
Amendments to Workplace Agreements Act 1993, transitional Part 3
provisions and consequential amendments to other Acts
Transitional provisions for amendments to the Workplace Division 2
Agreements Act 1993 made by Division 1
s. 73
Division 2 -- Transitional provisions for amendments to the
Workplace Agreements Act 1993 made by Division 1
Subdivision 1 -- Preliminary
73. Definitions
5 (1) In this Division --
"principal Act" means the Workplace Agreements Act 1993.
(2) Terms used in this Division have the same meanings as they
have in the principal Act.
74. Interpretation Act 1984 not affected
10 The provisions of this Division do not affect the application of
the Interpretation Act 1984, so far as it is consistent with those
provisions, to the amendments made by this Part.
Subdivision 2 -- Agreements under principal Act
75. Saving of addition of parties under section 23
15 (1) The repeal of section 23 of the principal Act by section 42 does
not affect the addition of an employee as a party to a collective
workplace agreement that occurred before the repeal by
operation of an agreement under the repealed section.
(2) Subsection (1) does not limit the operation of section 4G.
20 76. Provision for unregistered collective workplace agreements
(1) This section applies to a collective workplace agreement,
including an agreement made for the purposes of repealed
Part 2A of the principal Act, that was signed by the parties to it
but that immediately before the designated day --
25 (a) had not been lodged for registration under repealed
section 29; or
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s. 77
(b) if lodged, had not been registered under repealed
section 31 or 32, or refused registration.
(2) The repeal effected by section 48 makes the agreement
incapable of being lodged or registered, as the case may be.
5 (3) The repeal of section 26(1) of the principal Act by section 46
does not operate to give any force or effect to a collective
workplace agreement that has not been registered.
77. Saving for unregistered agreements under section 24(1)
(1) This section applies to an agreement under section 24(1) of the
10 principal Act that was signed by the parties to it but that
immediately before the designated day --
(a) had not been lodged for registration under repealed
section 29; or
(b) if lodged, had not been registered under repealed
15 section 31 or refused registration.
(2) The agreement has effect according to its terms despite the fact
that it is not registered.
(3) If the commencement of the agreement is expressed in terms
that depend on it being registered, the agreement has effect on
20 and after the designated day.
Subdivision 3 -- Registration
78. Registrar to take possession of register, documents and
records
(1) As soon as is practicable after the commencement of section 47
25 the Registrar is to take possession of --
(a) the register kept for the purposes of section 28 of the
principal Act; and
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s. 79
(b) all documents and records relating to the register,
including information stored or recorded by means of a
computer.
(2) A person in possession or control of any thing referred to in
5 subsection (1), or premises on which it is kept, must comply
with any reasonable request that the Registrar makes for the
purpose of carrying out that subsection.
79. Registration not affected by repeal
The repeal of --
10 (a) sections 31 and 32 of the principal Act by section 48;
and
(b) sections 40I and 40J of the principal Act by section 51,
does not, after the repeal, affect the force and effect that any
agreement had immediately before the repeal as an agreement
15 registered under the principal Act.
80. Continuation of status as excluded party
The repeal of section 32(4) of the principal Act by section 48
does not, after the repeal, affect the status that a person had
immediately before the repeal as an excluded party under that
20 subsection, including the exclusion of the person from the
operation of section 12(1)(a) of the principal Act.
81. Review under section 34 discontinued
A review under section 34 of the principal Act that is in
progress immediately before the repeal of that section by
25 section 48 is automatically discontinued by the repeal.
82. Appeal under section 35 discontinued
An appeal under section 35 of the principal Act that has been
commenced but not completed before the repeal of that section
by section 48 is automatically discontinued by the repeal.
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Division 2 Transitional provisions for amendments to the Workplace
Agreements Act 1993 made by Division 1
s. 83
Subdivision 4 -- Remedies and offences
83. Recovery of amounts where section 4E or 4G applies
(1) This section applies if an individual workplace agreement or an
agreement under repealed section 23(1) ceases to have effect
5 under section 4E or 4G of the principal Act.
(2) Either party to the agreement may recover from the other any
amount which, if the agreement had not taken effect, he or
she --
(a) would have been entitled to receive; or
10 (b) would not have been required to pay,
as the case may be, in respect of the period when the agreement
had effect.
(3) The entitlement of an employee is to be determined for the
purposes of subsection (2)(a) as if any relevant award provision
15 applied to the employer and the employee during the period
concerned.
(4) An amount referred to in subsection (2) is recoverable in
accordance with section 85.
84. Proceedings in progress under repealed section 51
20 (1) An action under section 51 of the principal Act that --
(a) was commenced in an industrial magistrate's court; and
(b) immediately before the commencement of section 57
had not been finally determined,
may be continued and dealt with by that court as if Part 5
25 Division 1 of the principal Act had not been amended by this
Part.
(2) The continued jurisdiction of an industrial magistrate's court
under subsection (1) is to be treated as general jurisdiction of
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s. 85
the court for the purposes of section 81CA of the Industrial
Relations Act 1979.
(3) An appeal or further appeal may be brought under repealed
section 61 of the principal Act by a party to proceedings
5 referred to in subsection (1) as if the repeal had not occurred.
85. Amounts may be recovered under repealed section 52
(1) A person may, despite the repeal of section 52 of the principal
Act by section 59, bring an action under the repealed section for
the recovery of an amount referred to in --
10 (a) that section; or
(b) section 83 of this Act,
and for that purpose Part 5 Division 1 applies as if it had not
been amended by this Part.
(2) The jurisdiction of an industrial magistrate's court under
15 subsection (1) is to be treated as general jurisdiction of the court
for the purposes of section 81CA of the Industrial Relations
Act 1979.
86. Proceedings for offences
(1) Proceedings for an offence against section 67(2) of the principal
20 Act that were commenced before the amendment of that section
by section 67 may be continued as if the amendment had not
been made.
(2) Proceedings for an offence against section 67(2) of the principal
Act may be brought in respect of an act or omission that
25 occurred before the amendment of that section by section 67 as
if the amendment had not been made.
(3) Proceedings for an offence against section 68(1), 68(2), 69 or
70(1) that were commenced before the amendment of section 66
of the principal Act by section 66 may be continued as if the
30 amendment had not been made.
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Division 2 Transitional provisions for amendments to the Workplace
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s. 87
(4) Proceedings for an offence against section 68(1), 68(2), 69 or
70(1) may be brought in respect of an act or omission that
occurred before the amendment of section 66 of the principal
Act by section 66 as if the amendment had not been made.
5 (5) A person may be punished on conviction for an offence in
proceedings referred to in subsection (1), (2), (3) or (4) despite
section 11 of The Criminal Code.
Subdivision 5 -- Provisions relating to the Commissioner
87. Definitions
10 In this Subdivision --
"commencement day" means the day on which section 69
comes into operation;
"Commissioner" means the official appointed under repealed
section 82 of the principal Act.
15 88. References to Commissioner in agreements and instruments
On and after the commencement day agreements and
instruments --
(a) to which the Commissioner is a party; or
(b) which contain a reference to the Commissioner,
20 have effect, by operation of this section, as if --
(c) the Registrar were substituted for the Commissioner as a
party to the agreement or instrument; and
(d) any reference to the Commissioner were, unless the
context otherwise requires, a reference to the Registrar.
25 89. Proceedings and remedies
On and after the commencement day --
(a) the Registrar is a party to any proceedings by or against
the Commissioner commenced before that day; and
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s. 90
(b) any proceedings or remedy that might have been
commenced by, or available against or to, the
Commissioner may be commenced by, and are available
against or to, the Registrar.
5 90. Other things in progress
(1) Any act, matter or thing done, or omitted to be done, before the
commencement day by, to or in respect of the Commissioner is
to be taken to have been done or omitted by, to or in respect of
the Registrar.
10 (2) Subsection (1) applies only to the extent that the act, matter or
thing has any force, effect or significance after the
commencement day.
91. Annual report for part of year
(1) The Commissioner is to report as required by section 66 of the
15 Financial Administration and Audit Act 1985 for the period
from the preceding 1 July to the commencement day, and Part II
Division 14 of that Act applies as if that period were a full
financial year.
(2) Despite section 69, the Commissioner continues in office so far
20 as is necessary for the purposes of subsection (1).
92. Completion of things commenced
Anything commenced to be done by the Commissioner under
the principal Act before the commencement day may be
continued by the Registrar so far as the doing of that thing is
25 within the functions of the Registrar after that day.
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Division 2 Transitional provisions for amendments to the Workplace
Agreements Act 1993 made by Division 1
s. 93
Subdivision 6 -- Miscellaneous
93. Offender may be punished despite repeal of section 25
Despite section 11 of The Criminal Code, a person may be
punished after the commencement of section 44 for an offence
5 against repealed section 25 of the principal Act.
94. Tribunal's arbitration function under repealed
section 40E(b)
(1) This section applies to a workplace agreement that --
(a) is in force immediately before the commencement of
10 section 51; and
(b) provides for the appointment of the Tribunal under
repealed section 40E of the principal Act as an arbitrator
in relation to disputes that arise about the meaning or
effect of the agreement.
15 (2) The workplace agreement is to be taken to provide for such
disputes to be referred to the Commission for determination.
(3) Regulations made for the purposes of section 7F(5)(c) of the
Industrial Relations Act 1979 apply to the practice and
procedure for the referral and determination of a dispute to
20 which this section applies in place of the provisions in that
behalf contained in the workplace agreement.
95. Immunity not affected
The repeal of Part 6 of the principal Act by section 69 does not
affect any immunity that a person had under that Part in respect
25 of an act, matter or thing done before the repeal.
96. Offshore application not affected
An agreement authorised by section 101 of the principal Act is
not affected by the repeal of that section by section 70.
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s. 97
97. Powers in relation to transitional provisions
(1) If there is no sufficient provision in this Division for dealing
with a transitional matter the Governor may make that provision
by regulations.
5 (2) If in the opinion of the Minister an anomaly arises in the
carrying out of any provision --
(a) of this Division; or
(b) of the Interpretation Act 1984 as it applies to the
amendments made by this Part,
10 the Governor may by regulations --
(c) modify that provision to remove the anomaly; and
(d) make such provision as is necessary or expedient to
carry out the intention of that provision.
(3) Regulations under this section in relation to an amendment
15 made to the principal Act by this Part may be made so as to
have effect from the commencement of that amendment.
(4) To the extent that a provision of any such regulations has effect
on a day that is earlier than the day of their publication in the
Gazette, the provision does not operate so as --
20 (a) to affect, in a manner prejudicial to any person (other
than the State), the rights of that person existing before
the day of publication; or
(b) to impose liabilities on any person (other than the State)
in respect of anything done or omitted to be done before
25 the day of publication.
(5) In subsection (1) --
"transitional matter" means a matter or thing necessary or
convenient to give effect to the transition from the principal
Act, as in force before the commencement of any provision
30 of this Part, to the principal Act as in force after that
commencement.
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provisions and consequential amendments to other Acts
Division 3 Transitional provisions for the expiry of the Workplace
Agreements Act 1993
s. 98
Division 3 -- Transitional provisions for the expiry of the
Workplace Agreements Act 1993
98. Definitions
(1) In this Division --
5 "the Act" means the Workplace Agreements Act 1993.
(2) Terms used in this Division have the same meanings as they had
in the Act immediately before its expiry.
99. Interpretation Act 1984 not affected
The provisions of this Division do not affect the application of
10 sections 37 and 39 of the Interpretation Act 1984, so far as they
are consistent with those provisions, in relation to the expiry of
the Act.
100. Effect of certain provisions preserved
The provisions of section 4H and Part 2 Division 4 of the Act
15 are to be regarded as continuing to have effect after the expiry
of the Act as if they had not expired.
101. Offences under expired Act
Without otherwise limiting the operation of section 37(1)(e) of
the Interpretation Act 1984, a person who commits an offence
20 against the Act before it expires may be punished after it expires
to the same extent as the person could have been punished
immediately before the expiry.
102. Application of enforcement provisions
(1) On the expiry of the Act, Part 5 Division 1 is to be taken to
25 continue in force to the extent necessary for the purpose of --
(a) enforcing --
(i) any right or entitlement that accrued; or
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Transitional provisions for the expiry of the Workplace Division 3
Agreements Act 1993
s. 103
(ii) any obligation or liability that was incurred,
under a workplace agreement before the expiry; and
(b) bringing an appeal against a decision of an industrial
magistrate's court under that Division as so continued.
5 (2) The continued jurisdiction of an industrial magistrate's court
under subsection (1) is to be treated as general jurisdiction of
the court for the purposes of section 81CA of the Industrial
Relations Act 1979.
(3) Section 84(1)(b) of the Industrial Relations Act 1979 has effect
10 for the purposes of this section as if it had not been repealed by
section 113(4).
103. Keeping of records
A person who was an employer under the Act must ensure that
after the expiry of the Act all records required to be kept by
15 section 47 of the Act, as in force immediately before the expiry,
are --
(a) kept --
(i) in a legible form and using indelible material; or
(ii) in electronic form that is capable of being
20 reproduced in a legible printed format; and
(b) retained --
(i) in the case of entries relating to long service
leave, during the employment of the employee
and for not less than 7 years after the termination
25 of that employment; and
(ii) in the case of any other entry, for not less than
7 years after it is made.
Penalty: $5 000.
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Division 3 Transitional provisions for the expiry of the Workplace
Agreements Act 1993
s. 104
104. Access to records
(1) A person who is required to keep records under section 103
relating to a former employee must, on request in writing by a
relevant person --
5 (a) produce the records to the relevant person; and
(b) let him or her inspect them.
Penalty: $5 000.
(2) Relevant persons are --
(a) the former employee concerned;
10 (b) a person authorized in writing by the former employee;
and
(c) an officer of the Commission authorized in writing by
the Registrar.
(3) The duty under subsection (1) --
15 (a) continues so long as the records concerned are required
to be kept under section 103; and
(b) includes the further duties to let the relevant person --
(i) for the purpose of inspecting the records, enter
premises of the person who is required to keep
20 them; and
(ii) take copies of or extracts from the records;
and
(c) must be complied with not later than 14 days after the
request for inspection is received.
25 105. Consequential amendment of other laws
(1) The Governor may make regulations having effect after the
expiry of the Act amending a written law for the purpose of
making that law consistent with the fact that the Act has
expired.
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Transitional provisions for the expiry of the Workplace Division 3
Agreements Act 1993
s. 106
(2) An amendment under subsection (1) may --
(a) delete from a written law a provision that relates solely
to the Act; and
(b) make changes to a provision to ensure that the omission
5 of provisions relating to the Act does not result in an
anomaly in the grammar or formal expression of the
provision.
(3) Any provision of regulations made under this section may be
expressed to have effect from a time that is earlier than the day
10 on which the regulations are published in the Gazette.
(4) To the extent that a provision has effect as mentioned in
subsection (3), the provision does not operate so as --
(a) to affect, in a manner prejudicial to any person (other
than the State), the rights of that person existing before
15 the day of publication in the Gazette; or
(b) to impose liabilities on any person (other than the State)
in respect of anything done or omitted to be done before
the day of that publication.
106. Powers in relation to transitional provisions
20 (1) If there is no sufficient provision in this Division for dealing
with a transitional matter after the expiry of the Act the
Governor may make that provision by regulations.
(2) If in the opinion of the Minister an anomaly arises in the
carrying out of any provision --
25 (a) of this Division; or
(b) of section 37 of the Interpretation Act 1984 as applied
by section 39 of that Act,
the Governor may, on the recommendation of the Minister, by
regulations --
30 (c) modify that provision to remove the anomaly; and
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Division 4 Consequential amendments and related transitional provisions
s. 107
(d) make such provision as is necessary or expedient to
carry out the intention of that provision.
(3) Any provision of regulations made under this section may be
expressed to have effect from a time that is earlier than the day
5 on which the regulations are published in the Gazette.
(4) To the extent that a provision has effect as mentioned in
subsection (3), the provision does not operate so as --
(a) to affect, in a manner prejudicial to any person (other
than the State), the rights of that person existing before
10 the day of publication in the Gazette; or
(b) to impose liabilities on any person (other than the State)
in respect of anything done or omitted to be done before
the day of that publication.
(5) In subsection (1) --
15 "transitional matter" means a matter or thing necessary or
convenient to give effect to the transition from the Act
being in force to the Act having expired.
Division 4 -- Consequential amendments and related
transitional provisions
20 107. Coal Industry Tribunal of Western Australia Act 1992
amended
Section 3B(1) of the Coal Industry Tribunal of Western
Australia Act 1992* is amended by deleting "within the
meaning in section 32(2) of that Act" and inserting instead --
25 "
referred to in section 80 of the Labour Relations
Reform Act 2002
".
[* Act No. 37 of 1992.
30 For subsequent amendments see 2000 Index to Legislation of
Western Australia, Table 1, p. 65-6.]
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provisions and consequential amendments to other Acts
Consequential amendments and related transitional provisions Division 4
s. 108
108. Further amendment to the Coal Industry Tribunal of
Western Australia Act 1992 as from the expiry of the
Workplace Agreements Act 1993
Sections 3A, 3B and 3C of the Coal Industry Tribunal of
5 Western Australia Act 1992 are repealed.
109. Constitution Acts Amendment Act 1899 amended
Schedule V Part 1 Division 2 to the Constitution Acts
Amendment Act 1899* is amended by deleting the item
"Commissioner of Workplace Agreements appointed under the
10 Workplace Agreements Act 1993".
[* Reprinted as at 8 June 2001.
For subsequent amendments see Acts Nos. 2 and 76 of 2000
and 12 of 2001.]
110. Financial Administration and Audit Act 1985 amended
15 Schedule 1 to the Financial Administration and Audit Act 1985*
is amended by deleting the item "Commissioner of Workplace
Agreements".
[* Reprinted as at 24 November 2000.
For subsequent amendments see 1999 Index to Legislation of
20 Western Australia, Table 1, p. 157, and Act No. 10 of 2001.]
111. Industrial Relations Act 1979 amended
(1) Section 7AA is amended by deleting ", within the meaning in
section 32(2) of the Workplace Agreements Act 1993," and
inserting instead --
25 "
referred to in section 80 of the Labour Relations
Reform Act 2002
".
(2) Section 7D(1) is amended as follows:
30 (a) by deleting paragraph (a);
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Division 4 Consequential amendments and related transitional provisions
s. 112
(b) in paragraph (b) by deleting "that Act" and inserting
instead --
" the Workplace Agreements Act 1993 ".
(3) Section 7D(2) is repealed.
5 (4) Section 7G is repealed.
(5) Section 7H(c)(i) is amended by deleting "or 7G".
(6) Section 26A is repealed.
112. Transitional provisions relating to section 111(4)
(1) A claim that --
10 (a) was referred to the Industrial Relations Commission
under section 7G of the Industrial Relations Act 1979
before the commencement of section 111(4); and
(b) immediately before that commencement had not been
finally determined,
15 may be dealt with by the Commission as if section 7G had not
been repealed.
(2) A provision of the kind described in subsection (1)(b) of
section 7G of the Industrial Relations Act 1979 that,
immediately before the commencement of section 111(4), has
20 effect in relation to a claim referred to in subsection (1)(a) of
that section ceases to have effect after that commencement.
(3) If a person wishes to refer to the Commission a claim mentioned
in subsection (2) he or she may do so under section 51 of the
Workplace Agreements Act 1993.
25 113. Further amendments to the Industrial Relations Act 1979 as
from the expiry of the Workplace Agreements Act 1993 and
transitional provision
(1) Part 1A is repealed.
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Consequential amendments and related transitional provisions Division 4
s. 113
(2) Section 81AA(a) and (b) are deleted.
(3) Section 81CA(1) is amended as follows:
(a) in the definition of "general jurisdiction" --
(i) by inserting after paragraph (a) --
5 " or "; and
(ii) by deleting paragraph (c) and "or" after
paragraph (b);
(b) in the definition of "prosecution jurisdiction" by
deleting paragraph (b).
10 (4) Section 84(1) is amended by deleting the portion of the
subsection after "it" and inserting instead --
" by section 96J. ".
(5) Schedule 1 is amended in item 2 as follows:
(a) in paragraph (f) by deleting the comma and inserting a
15 full stop;
(b) by deleting from "but this item" to the end of the item.
(6) A question or dispute that --
(a) was referred to the Industrial Relations Commission
under section 7F of the Industrial Relations Act 1979
20 before the commencement of subsection (1); and
(b) immediately before that commencement had not been
finally determined,
may be dealt with by the Commission as if section 7F had not
been repealed.
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Part 4 Amendments about awards
s. 114
Part 4 -- Amendments about awards
114. Section 6 amended
After section 6(c) the following paragraph is inserted --
"
5 (ca) to provide a system of fair wages and
conditions of employment;
".
115. Section 29A amended
(1) After section 29A(1) the following subsections are inserted --
10 "
(1a) In this section --
"area and scope provisions" means the parts of an
award or industrial agreement that relate to the
area of operation and scope of the award or
15 industrial agreement.
(1b) Subject to subsection (2a) --
(a) area and scope provisions of a proposed award
or industrial agreement; and
(b) proposed variations to the area and scope
20 provisions of an existing award or industrial
agreement,
shall be published in the required manner.
".
(2) Section 29A(2) is amended by deleting ", or the variation of the
25 area of operation or the scope of an award or industrial
agreement, or the registration of an industrial agreement, the
Commission shall not hear the claim or application until those
parts of the proposed award, variation or industrial agreement
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Amendments about awards Part 4
s. 115
that relate to area of operation or scope have been published in
the Industrial Gazette" and inserting instead --
"
or the registration of an industrial agreement, or the
5 variation of the area and scope provisions of an
existing award or agreement, the Commission shall not
hear the claim or application until the area and scope
provisions of the proposed award or industrial
agreement have, or the proposed variation has, been
10 published in the required manner
".
(3) Section 29A(2a) is amended as follows:
(a) by deleting "those parts of the proposed award or
industrial agreement that relate to area of operation and
15 scope" and inserting instead --
"
the area and scope provisions of the proposed award or
industrial agreement
";
20 (b) by deleting paragraph (c) and "or" after it and inserting
instead --
"
(c) need not be published in the Industrial Gazette;
or
25 ".
(4) After section 29A(2b) the following subsection is inserted --
"
(2c) The area and scope provisions of an award may be
amended under section 40A without the proposed
30 variation having been published in the required
manner.
".
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Part 4 Amendments about awards
s. 116
(5) Section 29A(3) is amended by deleting "(1)" and inserting
instead --
" (2) ".
116. Part II Division 2A heading and section 36A inserted
5 Before section 37 the following heading and section are
inserted --
"
Division 2A -- Awards
36A. Application for award coverage for non-award
10 employees
(1) In any proceedings in which the Commission is
considering the making of an award ("the new
award") that extends to employees to whom no award
currently extends ("the employees"), the onus is on
15 any party opposing the making of the new award to
show that it would not be in the public interest.
(2) The Commission may make an interim award that
extends to the employees pending the making of the
new award.
20 (3) An interim award may be made if the Commission
considers --
(a) that it would provide a fair basis for the
application of the no-disadvantage test provided
for by Part VID Division 6 Subdivision 1;
25 (b) that it would protect the existing wages and
conditions of employment of the employees
until the new award is made; or
(c) that it would be appropriate for any other
reason.
30 ".
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Amendments about awards Part 4
s. 117
117. Section 38 amended and a savings provision
(1) Section 38(3) is repealed and the following subsections are
inserted instead --
"
5 (3) Where an employer who is added as a named party to
an award under subsection (2) is, at the time of that
addition, engaged in an industry to which the award did
not previously apply and the scope of the award is
varied by virtue of that addition, the variation shall for
10 the purposes of section 37(1) be expressly limited to
that industry.
(4) An employer is not to be added as a named party to an
award under subsection (2) if that addition would have
the effect of extending the award to employees to
15 whom another award already extends.
".
(2) If an employer was added as a named party to an award under
former section 38(3) before the commencement day, the scope
of that award is not varied by reason only of the coming into
20 operation of subsection (1).
(3) In this section --
"commencement day" means the day on which subsection (1)
comes into operation;
"former section 38(3)" means section 38(3) of the Industrial
25 Relations Act 1979 as it was in effect immediately before
the commencement day.
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118. Sections 40A and 40B inserted
After section 40 the following sections are inserted --
"
40A. Incorporation of industrial agreement provisions
5 into awards by consent
(1) If --
(a) an award extends to employees to whom an
industrial agreement extends;
(b) a named party to the award who is also a party
10 to the agreement applies to the Commission for
the incorporation of some or all of the
provisions of the agreement into the award; and
(c) each other party to the agreement consents to
the incorporation of those provisions into the
15 award,
the Commission shall by order vary the award by
incorporating those provisions of the agreement into
the award, but the variation shall be expressly limited
to the employees and employers to whom the
20 agreement extends.
(2) This section does not limit the operation of section 40
and that section applies to any application or order
made under this section.
40B. Power to vary awards to reflect statutory and other
25 requirements, to promote efficiency and to facilitate
implementation
(1) The Commission, of its own motion, may by order at
any time vary an award for any one or more of the
following purposes --
30 (a) to ensure that the award does not contain wages
that are less than the minimum award wage as
ordered by the Commission under section 51;
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(b) to ensure that the award does not contain
conditions of employment that are less
favourable than those provided by the
MCE Act;
5 (c) to ensure that the award does not contain
provisions that discriminate against an
employee on any ground on which
discrimination in work is unlawful under the
Equal Opportunity Act 1984;
10 (d) to ensure that the award does not contain
provisions that are obsolete or need updating;
(e) to ensure that the award is consistent with the
facilitation of the efficient organization and
performance of work according to the needs of
15 an industry and enterprises within it, balanced
with fairness to the employees in the industry
and enterprises.
(2) The Commission shall not make an order under this
section until it has given notice to the named parties to
20 the award and the Council, the Chamber, the Mines and
Metals Association and the Minister and afforded them
an opportunity to be heard in relation to the proposed
variations.
(3) The Commission shall cause a copy of an order made
25 under this section to be --
(a) given to the named parties to the award and to
the Council, the Chamber, the Mines and
Metals Association and the Minister; and
(b) published in the required manner.
30 (4) Section 39 applies to and in relation to an order made
under this section --
(a) as if the reference in section 39(3) to the date
on which an application was lodged in the
Commission were a reference to the date on
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which notice was first given under
subsection (2); and
(b) with such other modifications as are necessary.
(5) This section does not prevent or affect the making of
5 an application under section 40 to vary an award for a
purpose mentioned in subsection (1).
".
119. Part II Division 2C, 2D and 2E headings inserted and
Part II Division 2A heading deleted
10 (1) Before section 44 the following heading is inserted --
"
Division 2C -- Holding of compulsory conferences
".
(2) Before section 46 the following heading is inserted --
15 "
Division 2D -- Miscellaneous provisions relating to
awards, orders and agreements
".
(3) Before section 49 the following heading is inserted --
20 " Division 2E -- Appeals to the Full Bench ".
(4) The heading before section 49A is deleted.
120. Sections 49A and 49C repealed and inserted as sections 48A
and 48B
Sections 49A and 49C are repealed and the same sections are
25 inserted after section 48 with the section designations "48A."
and "48B.", respectively.
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121. Consequential amendments to section 22A, 25, 80G
and 80W
(1) Section 22A is amended by inserting after "this Division" --
" and Divisions 2A to 2G ".
5 (2) Section 25(1) is amended by inserting after "this Division" --
" and Divisions 2A to 2G ".
(3) Section 25(2) is repealed and the following subsection is
inserted instead --
"
10 (2) Subsection (1) --
(a) has effect subject to any provision of this
Division or Division 2A to 2G under which the
Commission is to be constituted in a particular
way; and
15 (b) does not affect the operation of Part IIC.
".
(4) Section 80G(1) is amended by deleting "Division 2 of Part II"
and inserting instead --
" Part II Divisions 2 to 2G ".
20 (5) Section 80W(1) is amended by deleting "Division 2 and
Division 2A of Part II" and inserting instead --
" Part II Divisions 2 to 2G ".
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Part 5 -- Amendments about the Industrial Relations
Commission and the Industrial Appeal Court
122. Section 27 amended
After section 27(1)(h) the following paragraphs are inserted --
5 "
(ha) determine the periods that are reasonably
necessary for the fair and adequate presentation
of the respective cases of the parties to the
proceedings and require that the cases be
10 presented within the respective periods;
(hb) require evidence or argument to be presented in
writing, and decide the matters on which it will
hear oral evidence or argument;
".
15 123. Section 32A inserted
After section 32 the following section is inserted --
"
32A. Conciliation and arbitration functions of
Commission to be unlimited
20 (1) The functions of the Commission under this Act as to
the resolution of matters by conciliation ("conciliation
functions") and the determination of matters by
arbitration ("arbitration functions") --
(a) are to and may be performed at any time and
25 from time to time as and when their
performance is necessary or expedient; and
(b) are not limited by any other provision of this
Act.
(2) Without limiting subsection (1), nothing in this Act
30 prevents the performance of conciliation functions
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merely because arbitration functions are being or have
been performed.
".
124. Section 34 amended
5 (1) Section 34(3) is amended by deleting "otherwise." and inserting
instead --
"
otherwise --
(a) on any ground relating to jurisdiction; or
10 (b) on any other ground.
".
(2) Section 34(4) is amended by deleting "court on any account
whatsoever." and inserting instead --
"
15 court --
(a) on any ground relating to jurisdiction; or
(b) on any other ground.
".
125. Section 49 amended
20 After section 49(6) the following subsection is inserted --
"
(6a) The Full Bench is not to remit a case to the
Commission under subsection (5)(c) unless it considers
that it is unable to make its own decision on the merits
25 of the case because of lack of evidence or for other
good reason.
".
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126. Section 90 amended
(1) Section 90(1) is repealed and the following subsection is
inserted instead --
"
5 (1) Subject to this section, an appeal lies to the Court in the
manner prescribed from any decision of the President,
the Full Bench, or the Commission in Court Session --
(a) on the ground that the decision is in excess of
jurisdiction in that the matter the subject of the
10 decision is not on an industrial matter;
(b) erroneous in law in that there has been an error
in the construction or interpretation of any Act,
regulation, award, industrial agreement or order
in the course of making the decision appealed
15 against; or
(c) on the ground that the appellant has been
denied the right to be heard,
but upon no other ground.
".
20 (2) After section 90(3) the following subsection is inserted --
"
(3a) If any ground of the appeal is made out but the Court is
satisfied that no injustice has been suffered by the
appellant or a person who is a member of or
25 represented by the appellant, the Court shall confirm
the decision the subject of appeal unless it considers
that there is good reason not to do so.
".
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Part 6 -- Amendments about industrial agreements
and good faith bargaining
127. Section 6 amended
(1) Section 6(a) is amended by inserting after "industry" --
5 " and in enterprises within industry ".
(2) After section 6(a) the following paragraphs are inserted --
"
(aa) to provide for rights and obligations in relation
to good faith bargaining;
10 (ab) to promote the principles of freedom of
association and the right to organize;
(ac) to promote equal remuneration for men and
women for work of equal value;
(ad) to promote collective bargaining and to
15 establish the primacy of collective agreements
over individual agreements;
(ae) to ensure all agreements registered under this
Act provide for fair terms and conditions of
employment;
20 (af) to facilitate the efficient organization and
performance of work according to the needs of
an industry and enterprises within it, balanced
with fairness to the employees in the industry
and enterprises;
25 (ag) to encourage employers, employees and
organizations to reach agreements appropriate
to the needs of enterprises within industry and
the employees in those enterprises;
".
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128. Section 7 amended
(1) Section 7(1) is amended by inserting in the appropriate
alphabetical position --
"
5 "enterprise order" has the meaning given by
section 42I(1);
";
(2) After section 7(4) the following subsection is inserted --
"
10 (5) In this Act --
(a) a reference to an industrial matter includes a
reference to a matter relating to bargaining in
good faith for an industrial agreement; and
(b) a reference to jurisdiction to inquire into and
15 deal with an industrial matter includes a
reference to jurisdiction to assist parties to
bargain for an industrial agreement.
".
129. Section 26 amended
20 Section 26(1)(d) is amended as follows:
(a) in subparagraph (v) by deleting the full stop and
inserting a semicolon instead;
(b) by inserting after subparagraph (v) the following
subparagraphs --
25 "
(vi) the need to facilitate the efficient
organization and performance of work
according to the needs of an industry
and enterprises within it, balanced with
30 fairness to the employees in the industry
and enterprises;
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(vii) the need to encourage employers,
employees and organizations to reach
agreements appropriate to the needs of
enterprises and the employees in those
5 enterprises.
".
130. Part II Division 2B heading and section 40C inserted
Before section 41 the following Division heading and section
are inserted --
10 "
Division 2B -- Industrial agreements
40C. Interpretation
In this Division --
"initiating party", in relation to a proposed industrial
15 agreement, means the party that initiated the
bargaining for the agreement under section 42(1);
"negotiating party", in relation to a proposed
industrial agreement, means --
(a) the initiating party; and
20 (b) a person who notifies the initiating party
under section 42A(1) that that person will
bargain for the industrial agreement;
"prescribed period" has the meaning given by
section 42A(1) and includes any extension of that
25 period ordered by the Commission.
".
131. Section 41 amended
(1) After section 41(1) the following subsections are inserted --
"
30 (1a) An agreement may apply to a single enterprise or more
than a single enterprise.
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(1b) For the purposes of subsection (1a) an agreement
applies to more than a single enterprise if it applies
to --
(a) more than one business, project or undertaking;
5 or
(b) the activities carried on by more than one
public authority.
".
(2) After section 41(7) the following subsections are inserted --
10 "
(8) When a new industrial agreement is made and
registered, or an award or enterprise order is made, in
substitution for an industrial agreement ("the first
agreement"), the first agreement is taken to be
15 cancelled, except to the extent that the new industrial
agreement, award or order saves the provisions of the
first agreement.
(9) To the extent that an industrial agreement is contrary to
or inconsistent with an award, the industrial agreement
20 prevails unless the agreement expressly provides
otherwise.
".
132. Section 41A replaced
Section 41A is repealed and the following section is inserted
25 instead --
"
41A. Registration of industrial agreement
(1) The Commission shall not under section 41 register an
agreement as an industrial agreement unless the
30 agreement --
(a) specifies a nominal expiry date that is no later
than 3 years after the date on which the
agreement will come into operation;
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(b) includes any provision specified in relation to
that agreement by an order referred to in
section 42G; and
(c) includes an estimate of the number of
5 employees who will be bound by the agreement
upon registration.
(2) The Commission shall not under section 41 register an
agreement as an industrial agreement to which an
organization or association of employees is a party,
10 unless the employees who will be bound by the
agreement upon registration are members of, or eligible
to be members of, that organization or association.
".
133. Sections 42 to 42M inserted
15 After section 41A the following sections are inserted --
"
42. Initiation of bargaining for industrial agreement
(1) Bargaining for an industrial agreement may be initiated
by an organization or association of employees, an
20 employer or an organization or association of
employers giving to an intended party to the agreement
a written notice that complies with subsection (3).
(2) A notice under subsection (1) is not to be given to an
organization or association of employers unless that
25 organization or association has given written consent to
being given such notice.
(3) A notice complies with this subsection if it is
accompanied by particulars of --
(a) the types of employment to be covered by the
30 agreement;
(b) the area in which the agreement is to operate;
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(c) the intended parties to the agreement; and
(d) any other matter prescribed by regulations
made by the Governor under section 42M.
(4) If there is no applicable industrial agreement or
5 enterprise order in force, bargaining may be initiated
under subsection (1) at any time.
(5) If there is an applicable industrial agreement or an
applicable enterprise order in force, bargaining must
not be initiated under subsection (1) earlier than
10 90 days before the nominal expiry date of the
agreement or order.
(6) Where bargaining is initiated under subsection (1) with
more than one intended party to the agreement, all the
negotiating parties are to bargain together unless the
15 Commission, on the application of a negotiating party,
directs that that negotiating party may negotiate
separately with the initiating party.
(7) Nothing in this section prevents or limits a person from
bargaining for an industrial agreement when bargaining
20 has not been initiated under subsection (1).
(8) In subsection (5) --
"nominal expiry date" means the date specified in the
agreement or enterprise order as the date on which
the agreement or enterprise order expires.
25 42A. Response to initiation of bargaining
(1) A person to whom a notice is given under section 42(1)
may notify the initiating party within 21 days of
receiving the notice (the "prescribed period") as to
whether that person will, or will not, bargain for an
30 industrial agreement.
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(2) The Commission may by order, on application by a
person to whom a notice is given under section 42(1),
extend by no more than 7 days the period within which
that person may respond under subsection (1).
5 (3) The Commission may make an order under
subsection (2) although an application for the order
was not made until after the expiration of the
prescribed period.
(4) An order under subsection (2) may be made subject to
10 such conditions as the Commission thinks fit.
(5) An application under subsection (2) operates --
(a) as a bar to an application for an enterprise order
by a negotiating party; and
(b) as a stay of any application for an enterprise
15 order that has been made by a negotiating party,
until the application under subsection (2) is determined
or withdrawn.
(6) Bargaining between negotiating parties for an
industrial agreement is initiated when the negotiating
20 party to whom the notice is given notifies the initiating
party under subsection (1) that that negotiating party
will bargain.
42B. Good faith bargaining for industrial agreement
(1) When bargaining for an industrial agreement, a
25 negotiating party shall bargain in good faith.
(2) Without limiting the meaning of the expression,
"bargaining in good faith" by negotiating parties
includes doing the following things --
(a) stating their position on matters at issue, and
30 explaining that position;
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(b) meeting at reasonable times, intervals and
places for the purpose of conducting
face-to-face bargaining;
(c) disclosing relevant and necessary information
5 for bargaining;
(d) acting honestly and openly, which includes not
capriciously adding or withdrawing items for
bargaining;
(e) recognising bargaining agents;
10 (f) providing reasonable facilities to
representatives of organizations and
associations of employees necessary for them
to carry out their functions;
(g) bargaining genuinely and dedicating sufficient
15 resources to ensure this occurs;
(h) adhering to agreed outcomes and commitments
made by the parties.
(3) The Commission may, having regard to the
circumstances in which the industrial action occurs,
20 determine that engaging in industrial action is a breach
of the duty to bargain in good faith.
(4) For the purposes of this section, a person is a
bargaining agent if --
(a) that person has been appointed in writing by a
25 negotiating party to an agreement as a
bargaining agent of that party in relation to the
agreement;
(b) a copy of the appointment has been provided to
the other negotiating party to the agreement;
30 and
(c) the appointment has not been terminated.
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(5) An appointment of a bargaining agent may be
terminated at any time by notice of termination given
by the negotiating party who appointed the agent in
writing to the agent.
5 (6) A copy of a notice of termination must be given to each
other negotiating party.
(7) For the purposes of section 77A of the Legal
Practitioners Act 1893 a bargaining agent is authorised
to provide advice and other services in relation to
10 bargaining for an industrial agreement.
(8) Nothing in this section affects the requirement of
section 112A that only a person who is registered under
that section may appear as an agent under section 31,
81E or 91.
15 42C. Code of good faith
(1) The Commission may make a code of good faith to
provide guidance about the application of the duty of
good faith under section 42B in relation to bargaining
for an industrial agreement --
20 (a) generally; or
(b) in relation to particular types of situations.
(2) The code shall not be inconsistent with this Division.
(3) Section 43(7), (8) and (9) of the Interpretation
Act 1984 apply to the code as if it were subsidiary
25 legislation.
(4) The Commission may amend or revoke the code or
revoke it and substitute another code for it.
(5) The Commission shall cause the code, and any
amendment or substituted code or any revocation of a
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code, to be published in the Industrial Gazette for
public information.
(6) In this section --
"Commission" means the Commission in Court
5 Session.
42D. Duty of good faith does not require concluded
industrial agreement
The duty of good faith in section 42B does not require
a negotiating party --
10 (a) to agree on any matter for inclusion in, or
exclusion from, an industrial agreement; or
(b) to enter into an industrial agreement.
42E. Conciliation and arbitration to assist bargaining
(1) To assist parties to bargain for an industrial agreement,
15 the Commission may exercise its powers as if it were
endeavouring to resolve an industrial matter.
(2) Without limiting subsection (1) the Commission may
make orders and give directions for the purpose of --
(a) ensuring that the negotiating parties bargain in
20 good faith; and
(b) otherwise facilitating bargaining in good faith
by negotiating parties.
(3) In particular, the Commission may order for the
purposes of subsection (2) that a negotiating party do,
25 or refrain from doing, any particular thing.
42F. Restriction on Commission's power in relation to
industrial agreements
Except as provided in section 42G, the Commission
must not give any direction or make any order or
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declaration requiring, or having the effect of requiring,
a negotiating party to enter into an industrial agreement
or to include any matter in, or exclude any matter from,
an industrial agreement.
5 42G. Parties may agree to Commission making orders as
to terms of agreement
(1) This section applies where --
(a) negotiating parties have reached agreement on
some, but not all, of the provisions of a
10 proposed agreement;
(b) an application is made to the Commission for
registration of the agreement as an industrial
agreement, the agreement to include any further
provisions specified by an order referred to in
15 subsection (2); and
(c) an application is made to the Commission by
the negotiating parties for an order as to
specified matters on which agreement has not
been reached.
20 (2) When registering the agreement, the Commission may
order that the agreement include provisions specified
by the Commission.
(3) An order referred to in subsection (2) may only be
made in relation to matters specified by the negotiating
25 parties in an application referred to in subsection (1)(c).
(4) In deciding the terms of an order the Commission may
have regard to any matter it considers relevant.
(5) When an order referred to in subsection (2) is made,
the provisions specified by the Commission are, by
30 force of this section, included in the agreement
registered by the Commission.
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(6) Despite section 49, no appeal lies from an order
referred to in subsection (2).
42H. Commission may declare that bargaining has ended
(1) If, on the application of a negotiating party, the
5 Commission constituted by a single Commissioner
determines that --
(a) the applicant has bargained in good faith;
(b) bargaining between the applicant and another
negotiating party has failed; and
10 (c) there is no reasonable prospect of the
negotiating parties reaching an agreement,
the Commission may declare that the bargaining has
ended between those negotiating parties.
(2) Despite section 49, no appeal lies from a declaration
15 under subsection (1).
42I. Commission may make enterprise orders
(1) If --
(a) the Commission declares under section 42H
that bargaining has ended between negotiating
20 parties; or
(b) the person to whom a notice is given under
section 42(1) does not respond to the notice
within the prescribed period or responds with a
refusal to bargain,
25 the Commission may, upon an application under
subsection (2), make an order (an "enterprise
order") --
(c) providing for any matter that might otherwise
be provided for in an industrial agreement to
30 which the negotiating parties referred to in
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paragraph (a), or the initiating party and the
person referred to in paragraph (b), were
parties, irrespective of the provisions of any
award, order or industrial agreement already in
5 force; and
(d) that the Commission considers is fair and
reasonable in all of the circumstances.
(2) An application for an enterprise order may be made --
(a) where subsection (1)(a) applies --
10 (i) if the negotiating party in respect of
whom the declaration was made is not
an organization or association of
employers, by the negotiating party; and
(ii) if the negotiating party in respect of
15 whom the declaration was made is an
organization or association of
employers, by an employer who is a
member of the negotiating party;
and
20 (b) where subsection (1)(b) applies --
(i) if the initiating party is not an
organization or association of
employers, by the initiating party;
(ii) if the initiating party is an organization
25 or association of employers, by an
employer who is a member of the
initiating party.
(3) An application for an enterprise order may be made --
(a) where subsection (1)(a) applies, within 21 days
30 after the making of the declaration; and
(b) where subsection (1)(b) applies, within 21 days
after the end of the prescribed period.
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(4) Without limiting section 32A, the Commission may
exercise its powers of conciliation in relation to a
matter even if an application for an enterprise order has
been made in relation to the same matter.
5 42J. Effect of enterprise order
(1) An enterprise order extends to and binds --
(a) all employees who are employed --
(i) in any calling mentioned in the
enterprise order in the industry or
10 industries to which the enterprise order
applies; and
(ii) by the employer specified in the order
under subsection (5)(a);
and
15 (b) the employer specified in the order under
subsection (5)(a),
and no other employee or employer, and its scope is to
be expressly so limited in the enterprise order.
(2) An enterprise order operates in the area specified in the
20 order.
(3) To the extent that an enterprise order is in conflict with
an award or industrial agreement, the enterprise order
prevails.
(4) An enterprise order is enforceable under section 83 as
25 if the order were an award and any organization or
association who is specified in the order under
subsection (5) were a named party to the award.
(5) The Commission is to specify in the enterprise order --
(a) the employer to whom the enterprise order
30 extends and who is bound by the enterprise
order; and
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(b) any organization or association of employees
that is a relevant negotiating party or person
referred to in section 42I(1)(b), as the case
requires.
5 (6) The employer specified under subsection (5)(a) is to
be --
(a) the applicant for the enterprise order; or
(b) if the applicant for the enterprise order was an
organization or association of employees --
10 (i) the negotiating party;
(ii) the person referred to in
section 42I(1)(b);
(iii) the member of an organization or
association of employers that is a
15 negotiating party; or
(iv) the member of an organization or
association of employers that is a person
referred to in section 42I(1)(b),
specified in the application for the enterprise
20 order.
42K. Term of enterprise order
(1) Subject to this section, an enterprise order operates for
the term specified in the order.
(2) An enterprise order must provide for the day on which
25 it expires which cannot be more than 2 years from and
including the day on which it comes into operation.
(3) An enterprise order is not to be varied by the
Commission unless all of the persons specified in the
order under section 42J(5) consent to the variation.
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(4) The Commission is not to make an award or another
enterprise order in substitution for an enterprise order
unless the term of the enterprise order has expired.
(5) The Commission is not to register an industrial
5 agreement in substitution for an enterprise order
unless --
(a) the application to the Commission to register
the industrial agreement is made by each of the
persons specified in the order under
10 section 42J(5); or
(b) the term of the enterprise order has expired.
(6) The Commission is not to cancel an enterprise order
unless an industrial agreement has been registered, or
an award or order has been made, in substitution for
15 that enterprise order.
(7) Despite the expiry of an enterprise order, the enterprise
order continues in force in respect of all the persons
specified in the order under section 42J(5) until a new
industrial agreement, enterprise order or an award, in
20 substitution for the enterprise order, has been made or
registered as the case requires.
42L. When bargaining ends
Bargaining initiated under section 42(1) ends --
(a) in relation to negotiating parties who make an
25 agreement, when that agreement is made; and
(b) in relation to negotiating parties specified in a
declaration under section 42H, when that
declaration is made.
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42M. Regulations
(1) The Governor may make regulations prescribing any
matter that is necessary or convenient to be prescribed
for giving effect to the purposes of this Division.
5 (2) Without limiting subsection (1) the Governor may
make regulations for any of the purposes set out in
section 113(1) to give effect to the purposes of this
Division.
(3) If there is any conflict or inconsistency between a
10 regulation made by the Governor and a regulation
made under section 113(1), the regulation made by the
Governor prevails to the extent of the conflict or
inconsistency.
".
15 134. Section 84A amended
Section 84A(1)(a) is amended by inserting after "other than
section" --
" 42B(1), ".
135. Section 93 amended
20 Section 93(5) is amended by inserting after "of the
Commission" --
"
, including copies of all cancelled industrial agreements
".
25 136. Section 112A amended
(1) Section 112A(1) is amended as follows:
(a) in paragraph (b) by deleting "matters," and inserting
instead --
" matters. ";
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(b) by deleting all of the words after paragraph (b).
(2) After subsection (1) the following subsection is inserted --
"
(1a) Despite subsection (1), a reference to carrying on
5 business as an industrial agent does not include --
(a) carrying on business by an organization, the
Council, the Chamber or the Mines and Metals
Association;
(b) carrying on business as a person who acts as a
10 bargaining agent within the meaning of
section 42B(4); or
(c) carrying on business as a person who --
(i) appears in proceedings as provided by
section 97WJ; or
15 (ii) provides advice or other services in
relation to industrial matters, in the
capacity of a bargaining agent under
section 97UJ.
".
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Part 7 -- Amendments about unfair dismissal and
employment issues
137. Section 23 amended
Section 23(3)(h) is deleted and the following paragraph is
5 inserted instead --
"
(h) on a claim of harsh, oppressive or unfair
dismissal --
(i) in the case of an application under
10 section 44, make any order except an
order that is authorised by section 23A
or 44; and
(ii) in any other case, make any order
except an order that is authorised by
15 section 23A.
".
138. Section 23A replaced by sections 23A and 23B and
transitional provision
(1) Section 23A is repealed and the following sections are inserted
20 instead --
"
23A. Powers of Commission on claims of unfair dismissal
(1) The Commission may make an order under this section
if the Commission determines that the dismissal of an
25 employee was harsh, oppressive or unfair.
(2) In determining whether the dismissal of an employee
was harsh, oppressive or unfair the Commission shall
have regard to whether the employee --
(a) at the time of the dismissal, was employed for a
30 period of probation agreed between the
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employer and employee in writing or
otherwise; and
(b) had been so employed for a period of less than
3 months.
5 (3) The Commission may order the employer to reinstate
the employee to the employee's former position on
conditions at least as favourable as the conditions on
which the employee was employed immediately before
dismissal.
10 (4) If the Commission considers that reinstatement would
be impracticable, the Commission may order the
employer to re-employ the employee in another
position that the Commission considers --
(a) the employer has available; and
15 (b) is suitable.
(5) The Commission may, in addition to making an order
under subsection (3) or (4), make either or both of the
following orders --
(a) an order it considers necessary to maintain the
20 continuity of the employee's employment;
(b) an order to the employer to pay to the employee
the remuneration lost, or likely to have been
lost, by the employee because of the dismissal.
(6) If, and only if, the Commission considers reinstatement
25 or re-employment would be impracticable, the
Commission may, subject to subsections (7) and (8),
order the employer to pay to the employee an amount
of compensation for loss or injury caused by the
dismissal.
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(7) In deciding an amount of compensation for the
purposes of making an order under subsection (6), the
Commission is to have regard to --
(a) the efforts (if any) of the employer and
5 employee to mitigate the loss suffered by the
employee as a result of the dismissal;
(b) any redress the employee has obtained under
another enactment where the evidence
necessary to establish the claim for that redress
10 is also the evidence necessary to establish the
claim before the Commission; and
(c) any other matter that the Commission considers
relevant.
(8) The amount ordered to be paid under subsection (6) is
15 not to exceed 6 months' remuneration of the employee.
(9) For the purposes of subsection (8) the Commission
may calculate the amount on the basis of an average
rate received by the employee during any relevant
period of employment.
20 (10) For the avoidance of doubt, an order under
subsection (6) may permit the employer concerned to
pay the compensation required in instalments specified
in the order.
(11) An order under this section may require that it be
25 complied with within a specified time.
(12) The Commission may make any ancillary or incidental
order that the Commission thinks necessary for giving
effect to any order made under this section.
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23B. Power to prevent external interference with
employment issues
(1) In this section --
"employment claim" means a claim made to the
5 Commission in which any of the following is an
issue --
(a) the refusal or failure of an employer to
employ a person ("the affected person");
(b) an employer's employment or transfer of an
10 employee to work at a particular place or
site, or refusal or failure to employ or
transfer an employee to work at a particular
place or site;
(c) the reinstatement or re-employment of an
15 employee who has been dismissed by an
employer;
"third party", in relation to an employment claim,
means any person, other than the employer on
whom a copy of the claim has been served.
20 (2) The Commission may, if it considers it necessary to do
so in the interests of equity, good conscience and the
substantial merits of an employment claim, order a
third party to refrain from preventing, hindering or
interfering with, or doing anything that would have the
25 effect of preventing, hindering or interfering with --
(a) the employment of the affected person;
(b) the employment or transfer of the employee to
work at a particular place or site; or
(c) the reinstatement or re-employment of the
30 employee.
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(3) Subsection (2) is not to be taken as limiting the persons
in respect of whom the Commission can make other
orders under this Act.
".
5 (2) Notwithstanding subsection (1), section 23A of the Industrial
Relations Act 1979 as in force immediately before the coming
into operation of this section continues to operate in respect of
any claim made under that section before the coming into
operation of this section.
10 139. Section 29 amended
(1) Section 29(1)(b)(ii) is amended by deleting "service" and
inserting instead --
" employment ".
(2) Section 29(2) is repealed and the following subsections are
15 inserted instead --
"
(2) Subject to subsection (3), a referral under
subsection (1)(b)(i) is to be made not later than 28 days
after the day on which the employee's employment is
20 terminated.
(3) The Commission may accept a referral by an employee
under subsection (1)(b)(i) that is out of time if the
Commission considers that it would be unfair not to do
so.
25 ".
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140. Section 29AA inserted and a transitional provision
(1) After section 29 the following section is inserted --
"
29AA. Certain claims not to be determined
5 (1) Subject to subsection (2), the Commission must not
determine a claim of harsh, oppressive or unfair
dismissal from employment if the dismissed employee
has lodged an application with the Australian
Commission for relief in respect of the termination of
10 that employment.
(2) Despite subsection (1) the Commission may determine
the claim if the application to the Australian
Commission is --
(a) withdrawn; or
15 (b) rejected or dismissed on the ground that it is not
within the jurisdiction of the Australian
Commission to determine the application.
(3) The Commission must not determine a claim of harsh,
oppressive or unfair dismissal from employment if --
20 (a) an industrial instrument does not apply to the
employment of the employee; and
(b) the employee's contract of employment
provides for a salary exceeding the prescribed
amount.
25 (4) The Commission must not determine a claim that an
employee has not been allowed by his or her employer
a benefit to which the employee is entitled under a
contract of employment if --
(a) an industrial instrument does not apply to the
30 employment of the employee; and
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(b) the employee's contract of employment
provides for a salary exceeding the prescribed
amount.
(5) In this section --
5 "industrial instrument" means --
(a) an award;
(b) an order of the Commission under this Act
that is not an order prescribed by regulations
made by the Governor for the purposes of
10 this section;
(c) an industrial agreement;
(d) an employer-employee agreement; or
(e) a workplace agreement;
"prescribed amount" means --
15 (a) $90 000 per annum; or
(b) the salary specified, or worked out in a
manner specified, in regulations made by the
Governor for the purposes of this section.
".
20 (2) Section 29AA of the Industrial Relations Act 1979 as inserted
by this section does not apply to or in respect of a claim made
before the coming into operation of this section.
141. Section 44 amended and a transitional provision
(1) Section 44(6)(bb) is deleted and the following paragraph is
25 inserted instead --
"
(bb) with respect to industrial matters --
(i) give any direction or make any order or
declaration which the Commission is
30 otherwise authorised to give or make
under this Act; and
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(ii) without limiting paragraph (ba) or
subparagraph (i) of this paragraph, in
the case of a claim of harsh, oppressive
or unfair dismissal of an employee,
5 make any interim order the Commission
thinks appropriate in the circumstances
pending resolution of the claim;
".
(2) Section 44(6)(bb) of the Industrial Relations Act 1979 as
10 inserted by this section does not apply to or in respect of a claim
made before the coming into operation of this section.
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Part 8 -- Amendments about right of entry, record
keeping and inspection of records
142. Section 7 amended
Section 7(1) is amended by inserting in the appropriate
5 alphabetical positions the following definitions --
"
"employment record" means a record kept under
section 49D;
"premises" includes any land, building, structure,
10 mine, mine working, aircraft, ship or other vessel,
vehicle and place, and any part of it;
"record" means any thing or process --
(a) upon or by which information is recorded or
stored; or
15 (b) by means of which a meaning can be
conveyed by any means in a visible or
recoverable form,
whether or not the assistance of some electronic,
electrical, mechanical, chemical or other machine
20 or process is required to convey the information or
meaning;
".
143. Section 23 amended
Section 23(3)(c) is amended as follows:
25 (a) by inserting "or" after subparagraph (i);
(b) by deleting "or" after subparagraph (ii);
(c) by deleting subparagraph (iii).
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144. Section 41 amended
Section 41(2) is amended by deleting "section 41A" and
inserting instead --
" sections 41A and 49N ".
5 145. Sections 49AB and 49B repealed
Sections 49AB and 49B are repealed.
146. Part II Divisions 2F and 2G inserted and a transitional
provision
(1) Before Part II Division 3 the following Divisions are inserted --
10 "
Division 2F -- Keeping of and access to
employment records
49D. Keeping of employment records
(1) Subsection (2) applies to an employee during any
15 period when an industrial instrument applies to his or
her employment.
(2) An employer must ensure that details are recorded
of --
(a) the employee's name and, if the employee is
20 under 21 years of age, his or her date of birth;
(b) any industrial instrument that applies;
(c) the date on which the employee commenced
employment with the employer;
(d) for each day --
25 (i) the time at which the employee started
and finished work;
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(ii) the period or periods for which the
employee was paid; and
(iii) details of work breaks including meal
breaks;
5 (e) for each pay period --
(i) the employee's designation;
(ii) the gross and net amounts paid to the
employee under the industrial
instrument; and
10 (iii) all deductions and the reasons for them;
(f) all leave taken by the employee, whether paid,
partly paid or unpaid;
(g) the information necessary for the calculation of
the entitlement to, and payment for long service
15 leave under the Long Service Leave Act 1958,
the Construction Industry Portable Paid Long
Service Leave Act 1985 or the industrial
instrument;
(h) any other information in respect of the
20 employee required under the industrial
instrument to be recorded; and
(i) any information, not otherwise covered by this
subsection, that is necessary to show that the
remuneration and benefits received by the
25 employee comply with the industrial
instrument.
(3) The employer must ensure that --
(a) the employment records are kept in accordance
with regulations made by the Governor;
30 (b) each entry in relation to long service leave is
retained --
(i) during the employment of the
employee; and
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(ii) for not less than 7 years after the
employment terminates;
and
(c) each other entry is retained for not less than
5 7 years after it is made.
(4) In this section --
"industrial instrument" means --
(a) an award;
(b) an order of the Commission under this Act;
10 (c) an industrial agreement; or
(d) an employer-employee agreement.
49E. Access to employment records
(1) An employer, on written request by a relevant person,
must --
15 (a) produce to the person the employment records
relating to an employee; and
(b) let the person inspect the employment records.
(2) The duty placed on an employer by subsection (1) --
(a) continues so long as the records are required to
20 be kept under section 49D(3);
(b) is not affected by the fact that the employee is
no longer employed by the employer or that the
industrial instrument no longer applies to him
or her;
25 (c) includes the further duties --
(i) to let the relevant person enter premises
of the employer for the purpose of
inspecting the records; and
(ii) to let the relevant person take copies of
30 or extracts from the records;
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and
(d) must be complied with not later than --
(i) at the end of the next pay period after
the request is received; or
5 (ii) the seventh day after the day on which
the request was made to the employer.
(3) Nothing in this section limits or otherwise affects the
powers of an Industrial Inspector in relation to the
inspection of employment records.
10 (4) In this section --
"relevant person" means --
(a) the employee concerned;
(b) if the employee is a represented person, his
or her representative;
15 (c) a person authorised in writing by the
employee; and
(d) an officer referred to in section 93 authorised
in writing by the Registrar.
49F. Enforcement of this Division
20 A contravention of section 49D(2), 49D(3) or 49E(1) is
not an offence but those subsections are civil penalty
provisions for the purposes of section 83E.
Division 2G -- Right of entry and inspection by
authorised representatives
25 49G. Interpretation
In this Division --
"authorised representative" means a person who
holds an authority in force under this Division;
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"relevant employee", when used in connection with
the exercise of a power by an authorised
representative of an organization, means an
employee who is a member of the organization or
5 who is eligible to become a member of the
organization.
49H. Right of entry for discussions with employees
(1) An authorised representative of an organization may
enter, during working hours, any premises where
10 relevant employees work, for the purpose of holding
discussions at the premises with any of the relevant
employees who wish to participate in those
discussions.
(2) If an award, order or industrial agreement that extends
15 to the relevant employees makes provision as to entry
onto premises by an authorised representative and --
(a) does not require notice to be given by the
representative; or
(b) requires a specified period of notice to be given
20 by the representative,
the authorised representative is not required to give
notice under this section.
(3) If subsection (2) does not apply, the authorised
representative is not entitled to exercise a power
25 conferred by this section unless the authorised
representative has given the employer of the employees
concerned at least 24 hours' written notice.
49I. Right of entry to investigate breaches
(1) An authorised representative of an organization may
30 enter, during working hours, any premises where
relevant employees work, for the purpose of
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investigating any suspected breach of this Act, the
Long Service Leave Act 1958, the MCE Act, the
Occupational Safety and Health Act 1984, the Mines
Safety and Inspection Act 1994 or an award, order,
5 industrial agreement or employer-employee agreement
that applies to any such employee.
(2) For the purpose of investigating any such suspected
breach, the authorised representative may --
(a) subject to subsections (3) and (6), require the
10 employer to produce for the representative's
inspection, during working hours at the
employer's premises or at any mutually
convenient time and place, any employment
records of employees or other documents, other
15 than workplace agreements, kept by the
employer that are related to the suspected
breach;
(b) make copies of the entries in the employment
records or documents related to the suspected
20 breach; and
(c) during working hours, inspect or view any
work, material, machinery, or appliance, that is
relevant to the suspected breach.
(3) The authorised representative is not entitled to require
25 an employer to produce an employment record of an
employee if the employee --
(a) is a party to an employer-employee agreement;
and
(b) has made a written request to the employer that
30 the record not be available for inspection by an
authorised representative.
(4) A written request under subsection (3)(b) --
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(a) may be withdrawn by written notice given by
the employee to the employer; and
(b) has effect until it is so withdrawn.
(5) An authorised representative is not entitled to exercise
5 a power conferred by this section for the purpose of
investigating a suspected breach of an
employer-employee agreement to which a relevant
employee is a party unless the authorised representative
is authorised in writing by that relevant employee to
10 carry out the investigation.
(6) An authorised representative is not entitled to require
the production of employment records or other
documents unless, before exercising the power, the
authorised representative has given the employer
15 concerned --
(a) if the records or other documents are kept on
the employer's premises, at least 24 hours'
written notice; or
(b) if the records or other documents are kept
20 elsewhere, at least 48 hours' written notice.
(7) The Commission may, on the ex parte application of an
authorised representative, waive the requirement to
give the employer concerned notice of an intended
exercise of a power under subsection (6) if the
25 Commission is satisfied that to give such notice would
defeat the purpose for which the power is intended to
be exercised.
(8) If the requirement for notice is waived under
subsection (7) --
30 (a) the Commission must give the authorised
representative a certificate authorising the
exercise of the power without notice; and
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(b) the authorised representative must, after
entering the premises and before requiring the
production of the records or documents, give
the person who is apparently in charge of the
5 premises the certificate or a copy of the
certificate.
49J. Provisions as to authorities issued to representatives
(1) The Registrar, on application by the secretary of an
organization of employees to issue an authority for the
10 purposes of this Division to a person nominated by the
secretary in the application, must issue the authority.
(2) The Registrar must not issue an authority for the
purposes of this Division to a person who has held an
authority under this Division that has been revoked
15 under subsection (5) unless the Commission in Court
Session on application by any person has ordered that
the authority be so issued.
(3) A person to whom an authority is issued is an
authorised representative of the organization on whose
20 behalf the application for the authority was made.
(4) The authority remains in force unless it is revoked or
suspended under this section.
(5) The Commission constituted by a Commissioner may,
by order, on application by any person, revoke, or
25 suspend for a period determined by the Commission,
the authority if satisfied that the person to whom it was
issued has --
(a) acted in an improper manner in the exercise of
any power conferred on the person by this
30 Division; or
(b) intentionally and unduly hindered an employer
or employees during their working time.
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(6) The Registrar may, on application by the secretary of
the organization of employees on whose behalf the
application for the authority was made, revoke the
authority.
5 (7) An application for the revocation of an authority under
subsection (5) is to set out the grounds on which the
application is made.
(8) Despite section 49 --
(a) no appeal lies from a decision of the
10 Commission under subsection (2); and
(b) section 49(2a) does not apply to an appeal from
a decision under subsection (5).
(9) A person to whom an authority has been issued under
this section must, within 14 days after the revocation of
15 the authority, return the authority to the Registrar.
49K. No entry to premises used for habitation
An authorised representative does not have authority
under this Division to enter any part of the premises of
an employer that is principally used for habitation by
20 the employer and his or her household.
49L. Authority must be shown on request
(1) If --
(a) a person proposes to enter, or is on, premises in
accordance with section 49H or 49I; and
25 (b) the occupier requests the person to show his or
her authority,
the person is not entitled under that section to enter or
remain on the premises unless he or she shows the
occupier the authority in force under this Division.
30 (2) In this section --
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"occupier" includes a person in charge of the
premises.
49M. Conduct giving rise to civil penalties
(1) The occupier of premises must not refuse, or
5 intentionally and unduly delay, entry to the premises by
a person entitled to enter the premises under
section 49H or 49I.
(2) A person must not intentionally and unduly hinder or
obstruct an authorised representative in the exercise of
10 the powers conferred by this Division.
(3) A person must not purport to exercise the powers of an
authorised representative under this Division if the
person is not the holder of a current authority issued by
the Registrar under this Division.
15 49N. Power of Commission restricted
(1) The Commission does not have jurisdiction to make an
award or order or register an agreement conferring, or
making provision for the exercise of, powers of entry
and inspection that are additional to, or inconsistent
20 with, the powers of entry and inspection under
Division 2F and this Division and the provisions as to
the exercise of those powers.
(2) Nothing in subsection (1) prevents or limits the
Commission from specifying in an award or order, or
25 registering an agreement that specifies, the period of
notice required to be given by an authorised
representative to an employer before entering premises
where relevant employees work.
(3) To the extent that the provisions of an award, order or
30 industrial agreement, whether made or registered
before or after the coming into operation of section 146
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of the Labour Relations Reform Act 2002, confer or
make provision for the exercise of powers of entry and
inspection that are additional to, or inconsistent with,
the powers of entry and inspection under Division 2F
5 and this Division or the provisions as to the exercise of
those powers, those provisions have no effect.
49O. Enforcement of this Division
A contravention of section 49J(9) or 49M(1), (2) or (3)
is not an offence but those subsections are civil penalty
10 provisions for the purposes of section 83E.
".
(2) A provision of an award, order or industrial agreement made or
registered before the coming into operation of subsection (1)
does not cease to have effect by reason of the operation of
15 section 49N(3), as inserted by subsection (1), until 28 days after
the coming into operation of subsection (1).
147. Section 98 amended
Section 98(7) is repealed.
148. Section 102 amended
20 Section 102(1)(a) is amended by deleting "as defined by
section 98(7)".
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Part 9 -- Amendments about procedure and
enforcement
149. Section 7 amended
Section 7(1) is amended by inserting in the appropriate
5 alphabetical position --
"
"civil penalty provision" means a provision of this
Act that is specified to be a civil penalty provision
for the purposes of section 83E;
10 ".
150. Section 22B inserted
After section 22A the following section is inserted --
"
22B. Commission to act with due speed
15 In the performance of its functions the Commission is
to act with as much speed as the requirements of this
Act and a proper consideration of the matter before it
permit.
".
20 151. Section 44 amended
After section 44(12c) the following subsections are inserted --
"
(12d) As soon as is practicable after giving or making a
direction, order or declaration orally under this section,
25 the Commission shall --
(a) reduce the direction, order or declaration to
writing; and
(b) make the text of the direction, order or
declaration available to the parties bound by the
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order or to which the direction or declaration
applies.
(12e) Subsection (12d) does not apply to an order or
declaration to which section 35 applies.
5 ".
152. Section 70 amended and a transitional provision
(1) After section 70(2) the following subsection is inserted --
"
(3) A contravention of subsection (1) or (2) is not an
10 offence but those subsections are civil penalty
provisions for the purposes of section 83E.
".
(2) Despite subsection (1), section 70 of the Industrial Relations
Act 1979 as in force immediately before the coming into
15 operation of this section continues to operate in respect of any
proceedings commenced before the coming into operation of
this section.
153. Section 80L amended
Section 80L(1) is amended by inserting after "sections" the
20 following --
" 22B, ".
154. Section 82 amended
Section 82(3) is repealed and the following subsection is
inserted instead --
25 "
(3) Subsection (2) does not apply to the enforcement of --
(a) a civil penalty provision; or
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(b) a provision of this Act, if a contravention of or
failure to comply with the provision constitutes
an offence against this Act.
".
5 155. Section 83 repealed and sections 83, 83A, 83B and 83C
inserted instead and transitional provisions
(1) Section 83 is repealed and the following sections are inserted
instead --
"
10 83. Enforcement of certain instruments
(1) Subject to this Act, where a person contravenes or fails
to comply with a provision of an instrument to which
this section applies any of the following may apply in
the prescribed manner to an industrial magistrate's
15 court for the enforcement of the provision --
(a) the Registrar or a Deputy Registrar;
(b) an Industrial Inspector;
(c) in the case of an award or industrial agreement,
any organization or association named as a
20 party to it;
(d) in the case of an award, industrial agreement or
order, an employer bound by it;
(e) any person on his or her own behalf who is a
party to the instrument or to whom it applies;
25 (f) if an employee under an employer-employee
agreement is a represented person, a
representative acting on his or her behalf.
(2) In this section --
"instrument to which this section applies" means --
30 (a) an award;
(b) an industrial agreement;
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(c) an employer-employee agreement; and
(d) an order made by the Commission, other
than an order made under section 23A, 32,
44(6) or 66.
5 (3) An application for the enforcement of an instrument to
which this section applies shall not be made otherwise
than under subsection (1).
(4) On the hearing of an application under subsection (1)
the industrial magistrate's court may, by order --
10 (a) if the contravention or failure to comply is
proved --
(i) issue a caution; or
(ii) impose such penalty as the industrial
magistrate's court thinks just but not
15 exceeding $2 000 in the case of an
employer, organization or association
and $500 in any other case;
or
(b) dismiss the application.
20 (5) If a contravention or failure to comply with a provision
of an instrument to which this section applies is proved
against a person as mentioned in subsection (4) the
industrial magistrate's court may, in addition to
imposing a penalty under that subsection, make an
25 order against the person for the purpose of preventing
any further contravention or failure to comply with the
provision.
(6) An order under subsection (5) --
(a) may be made subject to any terms and
30 conditions the court thinks appropriate; and
(b) may be revoked at any time.
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(7) An interim order may be made under subsection (5)
pending final determination of an application under
subsection (1).
(8) A person shall comply with an order made against him
5 or her under subsection (5).
Penalty: $5 000 and a daily penalty of $500.
83A. Underpayment of employee
(1) Where in any proceedings brought under section 83(1)
against an employer it appears to the industrial
10 magistrate's court that an employee of that employer
has not been paid by that employer the amount which
the employee was entitled to be paid under an
instrument to which that section applies the industrial
magistrate's court shall, subject to subsection (2), order
15 that employer to pay to that employee the amount by
which the employee has been underpaid.
(2) An order may only be made under subsection (1) --
(a) in respect of any amount relating to a period not
being more than 6 years prior to the
20 commencement of the proceedings; or
(b) if the employer concerned appears to the
industrial magistrate's court, or has been found
under section 83E, to have contravened
section 102(1)(a) or (b) by reason of having
25 failed --
(i) to produce or exhibit a record relevant
to the proceedings;
(ii) to allow such a record to be examined;
or
30 (iii) to answer a question relevant to the
proceedings truthfully to the best of the
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employer's knowledge, information and
belief, as the case requires,
in respect of any amount relating to a period not
being more than 6 years prior to that failure.
5 (3) When an order is made under subsection (1), the
amount stated in the order shall be taken to be a penalty
imposed under this Act and may be recovered
accordingly, but on recovery shall be paid as stated in
the order under section 83F.
10 (4) Nothing in this section limits the operation of
section 83.
83B. Enforcement of unfair dismissal order
(1) Where an employer contravenes or fails to comply with
an order made under section 23A any of the following
15 may apply in the prescribed manner to an industrial
magistrate's court for the enforcement of the order --
(a) the Registrar or a Deputy Registrar;
(b) an Industrial Inspector;
(c) an organization of employees in which the
20 employee in relation to whom the order is made
is eligible to be enrolled as a member or an
association that represents such an
organization; and
(d) the employee in relation to whom the order is
25 made.
(2) No fee is payable for the filing of an application under
subsection (1).
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(3) On an application under subsection (1) in respect of a
contravention or failure to comply with an order under
section 23A(3) or (4), the industrial magistrate's court
may --
5 (a) if the contravention or failure to comply is
proved, make an order for whichever of the
following type of remedy was requested in the
application --
(i) an order that the employer do any
10 specified thing, or cease any specified
activity, for the purpose of preventing
any further contravention or failure to
comply with the order;
(ii) an order revoking the order, and any
15 associated orders, made under
section 23A and, subject to
subsection (7), ordering the employer to
pay to the employee an amount decided
by the industrial magistrate's court;
20 or
(b) dismiss the application.
(4) On an application under subsection (1) in respect of a
contravention or failure to comply with an order under
section 23A(5), (6) or (12), the industrial magistrate's
25 court may --
(a) if the contravention or failure to comply is
proved, order the person to do any specified
thing, or to cease any specified activity, for the
purpose of preventing any further contravention
30 or failure to comply with the order; or
(b) dismiss the application.
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(5) The industrial magistrate's court may, in addition to
making an order under subsection (3)(a) or (4)(a) --
(a) issue a caution or impose such penalty as the
industrial magistrate's court thinks just but not
5 exceeding $5 000;
(b) in the case of an order under subsection (3)(a),
order the employer to pay to the employee, in
addition to any remuneration or amount ordered
to be paid, the remuneration lost, or likely to
10 have been lost, by the employee because of the
contravention or failure to comply with the
order under section 23A; and
(c) make any ancillary or incidental order that the
court thinks necessary for giving effect to any
15 order made under this section.
(6) An order under subsection (3)(a) or (4)(a) --
(a) shall, unless it has immediate effect, specify a
time within which the order must be obeyed
(which time may be extended by the court); and
20 (b) may be made subject to any terms and
conditions the court thinks appropriate.
(7) The amount ordered to be paid under
subsection (3)(a)(ii) --
(a) is not to be less than 6 months' remuneration of
25 the employee in relation to whom the order is
made; and
(b) is not to exceed 12 months' remuneration of the
employee in relation to whom the order is
made.
30 (8) For the purposes of subsection (7) the industrial
magistrate's court may calculate the amount on the
basis of an average rate received by the employee
during any relevant period of employment.
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(9) In deciding an amount for the purposes of making an
order under subsection (3)(a)(ii), the industrial
magistrate's court is to have regard to --
(a) the efforts (if any) of the employer and
5 employee to mitigate the loss suffered by the
former employee as a result of the dismissal;
(b) any redress the employee has obtained under
another enactment where the evidence
necessary to establish the claim for that redress
10 was also the evidence necessary to establish the
claim before the Commission under
section 23A; and
(c) any other matter that the court considers
relevant.
15 (10) A person shall comply with an order made against that
person under subsection (3)(a) or (4)(a).
Penalty: $5 000 and a daily penalty of $500.
83C. Costs of enforcement orders
(1) Subject to subsection (2), an order under section 83,
20 83A or 83B may be made in any case with or without
costs, but in no case shall any costs be given against
the Registrar, a Deputy Registrar, or an Industrial
Inspector.
(2) In proceedings under section 83 or 83B costs shall not
25 be given to any party to the proceedings for the
services of any legal practitioner or agent of that party
unless, in the opinion of the industrial magistrate's
court, the proceedings have been frivolously or
vexatiously instituted or defended, as the case requires,
30 by the other party.
".
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(2) Any proceedings begun before an industrial magistrate's court
under section 83 of the Industrial Relations Act 1979, and not
abandoned or finally determined, before the commencement of
this section are to be dealt with after the coming into operation
5 of this section as if section 83 had not been amended by this
Act.
(3) Subject to subsection (2), sections 83, 83A and 83B of the
Industrial Relations Act 1979 as amended by this Act apply to
and in relation to an award, industrial agreement or order made
10 before the coming into operation of this section as if the award,
industrial agreement or order were made after the coming into
operation of this Act.
156. Section 83A amended
Section 83A is amended by deleting the section designation
15 "83A." and inserting instead --
" 83D. ".
157. Sections 83E and 83F inserted
Before section 84 the following sections are inserted --
"
20 83E. Contravention of a civil penalty provision
(1) If a person contravenes a civil penalty provision, an
industrial magistrate's court may make an order
imposing a penalty on the person, not exceeding --
(a) in the case of an employer, organization or
25 association, $5 000; and
(b) in any other case, $1 000.
(2) Subject to subsection (3), if a person contravenes a
civil penalty provision an industrial magistrate's court
may, instead of or in addition to making an order under
30 subsection (1), make an order against the person for the
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purpose of preventing any further contravention of that
provision.
(3) In the case of a contravention of section 49D(2) or (3),
the court is not to make an order under subsection (2)
5 instead of making an order under subsection (1) but
may make an order under subsection (2) in addition to
making an order under subsection (1).
(4) An order under subsection (2) --
(a) may be subject to any terms and conditions the
10 court thinks appropriate; and
(b) may be revoked at any time.
(5) An interim order may be made under subsection (2)
pending final determination of an application under this
section.
15 (6) An application for an order under this section may be
made by --
(a) a person directly affected by the contravention
or, if that person is a represented person, his or
her representative;
20 (b) an organization or association of which a
person who comes within paragraph (a) is a
member;
(c) the Registrar or a Deputy Registrar; or
(d) an Industrial Inspector.
25 (7) An application under subsection (6) must be made in
accordance with regulations made by the Governor.
(8) The standard of proof to be applied in determining
whether there has been a contravention of a civil
penalty provision is the standard observed in civil
30 proceedings.
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(9) A person must comply with an order made against him
or her under subsection (2).
Penalty: $5 000 and a daily penalty of $500.
(10) Where, on an application under subsection (6), the
5 industrial magistrate's court does not make an order
under subsection (1) or (2), the court may, by order,
dismiss the application.
(11) An order under subsection (1), (2) or (10) may be made
in any case with or without costs, but in no case shall
10 any costs be given against the Registrar, the Deputy
Registrar, or an Industrial Inspector.
(12) In proceedings under this section costs shall not be
given to any party to the proceedings for the services of
any legal practitioner or agent of that party unless, in
15 the opinion of the industrial magistrate's court, the
proceedings have been frivolously or vexatiously
instituted or defended, as the case requires, by the other
party.
83F. Payment of costs and penalties
20 (1) Where the industrial magistrate's court, by an order
made under section 83, 83A, 83B or 83E, imposes a
penalty or costs the industrial magistrate's court shall
state in the order --
(a) the name of the person liable to pay the penalty
25 or costs; and
(b) the name of the person to whom the penalty is,
or costs are, payable.
(2) An industrial magistrate's court imposing a penalty by
order under section 83, 83A, 83B or 83E may order
30 that the amount of the penalty, or part of that amount,
be paid to --
(a) a person directly affected by the conduct to
which the contravention relates;
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(b) the applicant; or
(c) the Treasurer.
(3) In making an order for payment to a person referred to
in subsection (2)(a) the court must take into account
5 any other compensation that the person has received or
is likely to receive in respect of the conduct concerned.
".
158. Section 84A amended
Section 84A(3) is repealed and the following subsection is
10 inserted instead --
"
(3) Subsection (1) does not apply to a contravention of or a
failure to comply with --
(a) a civil penalty provision; or
15 (b) a provision of this Act if the contravention or
failure constitutes an offence against this Act.
".
159. Section 102 amended
After section 102(2) the following subsection is inserted --
20 "
(3) A contravention of subsection (1) or (2) is not an
offence but those subsections are civil penalty
provisions for the purposes of section 83E.
".
25 160. Consequential amendments to sections 81A, 81CA, 82A, 93,
102A and 103
(1) Section 81A is amended by inserting after "83A," the
following --
" 83B, 83D, 83E, ".
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(2) Section 81CA(1) is amended as follows:
(a) in paragraph (a) of the definition of "general
jurisdiction" by deleting "83" and inserting instead --
" 83(1) to (7), 83A, 83B(1) to (9), 83E(1) to (8) ";
5 (b) in paragraph (a) of the definition of "prosecution
jurisdiction" by deleting "83A" and inserting instead --
" 83D ".
(3) Section 82A is amended by inserting after "83" the following --
" , 83B, 83E ".
10 (4) Section 93(9) is amended by deleting "77 or 83 or" and
inserting instead --
" 77, 83, 83B, 83E or ".
(5) Section 102A(1) is amended by deleting "77 or 83 or" and
inserting instead --
15 " 77, 83, 83B, 83E or ".
(6) Section 102A(2) is amended by deleting "77 or 83 or" and
inserting instead --
" 77, 83, 83B, 83E or ".
(7) Section 103(3) is amended in the definition of "application" by
20 deleting "77 or 83 or" and inserting instead --
" 77, 83, 83B, 83E or ".
161. Section 96 inserted
After section 95 the following section is inserted in Part V --
"
25 96. Delegation of certain functions to Registrar
(1) In this section --
"Registrar" means the Registrar or a Deputy
Registrar.
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(2) Subject to subsection (3), the regulations may provide
for and in relation to the delegation to a Registrar of all
or any of the functions of the Commission in relation to
the following --
5 (a) claims referred to in section 29(1)(b);
(b) the review of awards for the purposes of
section 40B;
(c) applications under section 49I(7).
(3) The powers of the Commission --
10 (a) to make an order under section 23A;
(b) to make an order that an employee has not been
allowed by his or her employer a benefit to
which he or she is entitled under his or her
contract of service; and
15 (c) to make an order under section 40B,
cannot be delegated to a Registrar.
(4) The Chief Commissioner may from time to time give
directions in writing to a Registrar with respect to the
performance of any of the Registrar's functions under
20 this section and the Registrar is to give effect to any
such direction.
(5) A direction may be either general or with respect to a
particular matter.
(6) A function performed by a Registrar as a delegate of
25 the Commission is to be taken to be performed by the
Commission.
(7) A function may be performed by the Commission
despite it being a delegated function.
(8) Except as provided in subsection (4) and despite any
30 other provision of this Act, the Public Sector
Management Act 1994 or any other written law, a
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Registrar is not subject to the direction or control of
any person in relation to the manner in which the
Registrar performs a delegated function.
(9) A party to proceedings in which a Registrar has
5 performed a delegated function may, within the time
prescribed by, or within such further time as is allowed
in accordance with, the regulations, apply to the
Commission to review a direction, determination or
order made by a Registrar in the performance of the
10 delegated function.
(10) The Commission constituted by a Commissioner may,
on application under subsection (9), review the
direction, determination or order and may --
(a) affirm the direction, determination or order; or
15 (b) revoke the direction, determination or order and
make a direction, determination or order the
Commission considers appropriate with respect
to the matter to which the performance of the
delegated function related.
20 (11) The Chief Commissioner of his or her own motion may
review, or may assign a Commissioner to review, a
direction, determination or order made by a Registrar
in the performance of a delegated function and the
Commission constituted by the Chief Commissioner or
25 the Commissioner assigned may --
(a) affirm the direction, determination or order; or
(b) revoke the direction, determination or order and
make a direction, determination or order the
Commission considers appropriate with respect
30 to the matter to which the performance of the
delegated function related.
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s. 162
(12) A review under subsection (11) may be carried out
within the time prescribed by, or within such further
time as is allowed in accordance with, the regulations.
(13) The Chief Commissioner may make regulations for the
5 purposes of this section.
".
162. Section 113 amended
(1) Section 113(1) is amended by deleting "and the members of the
Commission, or a majority of them" and inserting instead --
10 "
and the Chief Commissioner, after consultation with
the members of the Commission
".
(2) After section 113(1)(b) the following paragraph is inserted --
15 "
(ba) prescribing the practice and procedure to be
followed in the mediation of a claim of harsh,
oppressive or unfair dismissal, and other
matters related to that mediation;
20 ".
(3) Section 113(1)(d) is deleted.
(4) After section 113(3a) the following subsection is inserted --
"
(3b) The Governor may make regulations prescribing what
25 fees shall be paid in respect of any proceeding before
the Court and the Commission, and the party by whom
such fees shall be paid.
".
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(5) Section 113(4) is amended by deleting "$40" and inserting
instead --
" $1 000 ".
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Amendments about minimum weekly rates of pay and other Part 10
conditions of employment
Amendments to the Minimum Conditions of Employment Act Division 1
1993 in relation to minimum weekly rates of pay and other
minimum conditions of employment
s. 163
Part 10 -- Amendments about minimum weekly rates
of pay and other conditions of employment
Division 1 -- Amendments to the Minimum Conditions of
Employment Act 1993 in relation to minimum weekly rates of
5 pay and other minimum conditions of employment
163. The Act amended
The amendments in this Division are to the Minimum
Conditions of Employment Act 1993*.
[* Reprinted as at 4 June 1997.]
10 164. Section 3 amended
(1) Section 3(1) is amended in the definition of "award" by
inserting after "order" the following --
" of the Commission ".
(2) Section 3(1) is amended by deleting the definition of "minimum
15 condition of employment" and inserting the following
definitions instead --
"
"minimum condition of employment" means --
(a) a rate of pay prescribed by this Act;
20 (b) a requirement as to pay, other than a rate of
pay, prescribed by this Act;
(c) a condition for leave prescribed by this Act;
(d) the use, in manner prescribed by this Act, of
a condition for leave prescribed by this Act;
25 or
(e) a condition prescribed by Part 5;
"trainee" has the same meaning as in the IR Act;
".
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Division 1 Amendments to the Minimum Conditions of Employment Act
1993 in relation to minimum weekly rates of pay and other
minimum conditions of employment
s. 165
(3) Section 3(1) is amended by inserting in the appropriate
alphabetical positions the following definitions --
"
"apprentice" has the same meaning as in the IR Act;
5 "IR Act" means the Industrial Relations Act 1979;
".
165. Section 8 amended and savings provisions as to certain
existing section 8 agreements
(1) Section 8 is amended as follows:
10 (a) by inserting before "An" the subsection
designation "(1)";
(b) by inserting after "forgo" --
" up to 50% of ".
(2) At the end of section 8 the following subsection is inserted --
15 "
(2) An agreement referred to in subsection (1) is of no
effect if the employer's offer of employment was made
on the condition that the employee would be required
to enter into the agreement.
20 ".
(3) An agreement continues to have effect on and from the
commencement day in respect of the employee's entitlement to
annual leave that accrued before the commencement day as if
former section 8 had not been amended by this Act.
25 (4) An agreement that provides for the foregoing of the employee's
entitlement to annual leave that would have accrued after the
commencement day if former section 8 had not been amended
by subsection (1) has effect on and from the commencement
day as if it provided for the foregoing of 50% of that
30 entitlement.
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Amendments about minimum weekly rates of pay and other Part 10
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Amendments to the Minimum Conditions of Employment Act Division 1
1993 in relation to minimum weekly rates of pay and other
minimum conditions of employment
s. 166
(5) In this section --
"agreement" means an agreement --
(a) under former section 8 for an employee to forgo his
or her entitlement to annual leave; and
5 (b) that is in effect immediately before the
commencement day;
"commencement day" means the day on which subsection (1)
comes into operation;
"former section 8" means section 8 of the Minimum Conditions
10 of Employment Act 1993 as it was in effect immediately
before the commencement day.
166. Section 9 amended
Section 9(1) is amended by deleting "within the meaning of
Part 3 that is applicable to the employee's age" and inserting
15 instead --
"
that is applicable to the employee under section 12, 13,
14 or 15
".
20 167. Part 3 replaced
Part 3 is repealed and the following Part is inserted instead --
"
Part 3 -- Minimum rates of pay
10. Entitlement of employees to be paid a minimum
25 rate of pay
An employee is entitled to be paid, for each hour
worked by the employee in a week, the minimum
weekly rate of pay applicable to the employee under
section 12, 13, 14 or 15, divided by 38.
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conditions of employment
Division 1 Amendments to the Minimum Conditions of Employment Act
1993 in relation to minimum weekly rates of pay and other
minimum conditions of employment
s. 167
11. Minimum rate of pay for casual employees includes
a loading
(1) A casual employee is entitled to be paid the amount
which he or she is entitled to be paid under section 10
5 plus the prescribed percentage of that amount.
(2) In subsection (1) --
"prescribed percentage" means --
(a) 20%; or
(b) if a percentage higher than 20% is set by
10 order under section 51I of the IR Act for the
purposes of this section, that percentage.
12. Minimum weekly rate of pay: employees of 21 or
more years of age
The minimum weekly rate of pay applicable at a
15 particular time to an employee --
(a) who has reached 21 years of age; and
(b) who is not an apprentice or trainee,
is the rate in effect at that time under section 51F of the
IR Act in relation to employees who have reached 21
20 years of age and who are not apprentices or trainees.
13. Minimum weekly rate of pay: employees under
21 years of age
The minimum weekly rate of pay applicable at a
particular time to an employee --
25 (a) who is of the age mentioned in the first column
in the Table to this section; and
(b) who is not an apprentice or trainee,
is the percentage, set out opposite that age in the
second column in the Table, of the rate referred to in
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Amendments to the Minimum Conditions of Employment Act Division 1
1993 in relation to minimum weekly rates of pay and other
minimum conditions of employment
s. 167
section 12 in effect at that time, rounded up to the
nearest 10 cents.
Table
Age Percentage of 21 year old rate
20 years 90%
19 years 80%
18 years 70%
17 years 60%
16 years 50%
Under 16 years 40%
14. Minimum weekly rates of pay: apprentices
5 The minimum weekly rate of pay applicable at a
particular time to an employee who is an apprentice --
(a) in the case where a rate is in effect at that time
under section 51F of the IR Act in relation to
the class of apprentice to which the employee
10 belongs, is that rate;
(b) otherwise, is the rate in effect at that time under
section 51F of the IR Act in relation to
apprentices generally.
15. Minimum weekly rates of pay: trainees
15 The minimum weekly rate of pay applicable at a
particular time to an employee who is a trainee --
(a) in the case where a rate is in effect at that time
under section 51F of the IR Act in relation to
the class of trainee to which the employee
20 belongs, is that rate;
(b) otherwise, is the rate in effect at that time under
section 51F of the IR Act in relation to trainees
generally.
".
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Part 10 Amendments about minimum weekly rates of pay and other
conditions of employment
Division 1 Amendments to the Minimum Conditions of Employment Act
1993 in relation to minimum weekly rates of pay and other
minimum conditions of employment
s. 168
168. Transitional provisions for minimum weekly rates of pay
(1) A minimum weekly rates of pay order under section 15 of the
Minimum Conditions of Employment Act 1993 that has effect
immediately before the commencement of Part 10 of the Labour
5 Relations Reform Act 2002 has no effect after that
commencement.
(2) Schedule 1 and subsections (3) and (4) have effect for the period
commencing immediately after the commencement of Part 10 of
the Labour Relations Reform Act 2002 and ending when the
10 first order under section 51F(1) of the Industrial Relations
Act 1979 has effect.
(3) Schedule 1 clause 2 has the same effect as if it were a provision
of an order under section 51F(1) of the Industrial Relations
Act 1979 setting the minimum weekly rate of pay in relation to
15 employees who have reached 21 years of age and who are not
apprentices or trainees.
(4) Schedule 1 clause 4 has the same effect as if it were a provision
of an order under section 51F(1) of the Industrial Relations
Act 1979 setting the minimum weekly rate of pay in relation to
20 apprentices and trainees.
169. Section 19 amended and a savings provision
(1) Section 19(1) is repealed and the following subsection is
inserted instead --
"
25 (1) Subject to sections 20 and 22, an employee, other than
a casual employee, who is unable to work as a result of
the employee's illness or injury, is entitled to paid
leave each year for periods of absence from work
resulting from the illness or injury for the number of
30 hours the employee is required ordinarily to work in a
2 week period during that year, up to 76 hours.
".
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Amendments to the Minimum Conditions of Employment Act Division 1
1993 in relation to minimum weekly rates of pay and other
minimum conditions of employment
s. 170
(2) An entitlement to paid leave for illness or injury that accrued
before the commencement day is preserved on and from the
commencement day as if former section 19 had not been
amended by this Act.
5 (3) In this section --
"commencement day" means the day on which subsection (1)
comes into operation;
"former section 19" means section 19 of the Minimum
Conditions of Employment Act 1993 as it was in effect
10 immediately before the commencement day.
170. Section 20A inserted
After section 20 the following section is inserted --
"
20A. Entitlement to use certain sick leave entitlements as
15 carer's leave
(1) An employee is entitled to use, each year, up to 5 days
of the employee's entitlement under section 19(1) for
that year to be the primary care giver of a member of
the employee's family or household who is ill or
20 injured and in need of immediate care and attention.
(2) In subsection (1) --
"member of the employee's family" means any of the
following persons --
(a) the employee's spouse or de facto spouse;
25 (b) a child for whom the employee has parental
responsibility as defined by the Family Court
Act 1997;
(c) an adult child of the employee;
(d) a parent, sibling or grandparent of the
30 employee.
".
page 193
Labour Relations Reform Bill 2002
Part 10 Amendments about minimum weekly rates of pay and other
conditions of employment
Division 1 Amendments to the Minimum Conditions of Employment Act
1993 in relation to minimum weekly rates of pay and other
minimum conditions of employment
s. 171
171. Section 21 replaced
Section 21 is repealed and the following section is inserted
instead --
"
5 21. Certain matters as to sick leave not minimum
conditions
Nothing in this Division requires --
(a) an employee's untaken entitlement under
section 19(1) or 20A(1) to be carried over from
10 the year in which the entitlement arose to the
next year;
(b) an entitlement under section 19(1) or 20A(1) to
be taken as a whole working day; or
(c) an employer to pay an employee in lieu of the
15 employee's untaken entitlement under
section 19(1), on the termination of the
employee's employment.
".
172. Section 22 replaced
20 Section 22 is repealed and the following section is inserted
instead --
"
22. Proof in support of claims for sick leave or use of
sick leave entitlements as carer's leave
25 An employee who claims to be entitled --
(a) to paid leave under section 19(1); or
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Amendments to the Minimum Conditions of Employment Act Division 1
1993 in relation to minimum weekly rates of pay and other
minimum conditions of employment
s. 173
(b) to use the employee's entitlement under
section 19(1) to care for a person in accordance
with section 20A(1),
is to provide to the employer evidence that would
5 satisfy a reasonable person of the entitlement.
".
173. Section 23 amended and a savings provision
(1) Section 23(1) is amended by deleting "160" and inserting
instead --
10 " 152 ".
(2) An entitlement to paid annual leave that accrued before the
commencement day is preserved on and from the
commencement day as if former section 23 had not been
amended by this Act.
15 (3) In this section --
"commencement day" means the day on which subsection (1)
comes into operation;
"former section 23" means section 23 of the Minimum
Conditions of Employment Act 1993 as it was in effect
20 immediately before the commencement day.
174. Section 40 amended
(1) Section 40(1) is amended in the definition of "employee" by
deleting "industrial trainee within the meaning of the Industrial
Training Act 1975;" and inserting instead --
25 " trainee; ".
(2) Section 40(1) is amended in the definition of "redundant" by
deleting ", for a reason that is not a usual reason for change in
the employer's work-force,".
page 195
Labour Relations Reform Bill 2002
Part 10 Amendments about minimum weekly rates of pay and other
conditions of employment
Division 1 Amendments to the Minimum Conditions of Employment Act
1993 in relation to minimum weekly rates of pay and other
minimum conditions of employment
s. 175
175. Section 43 amended
Section 43(1) is amended by inserting after "employee" the
following --
" , other than a seasonal worker ".
5 176. Section 44 amended
After section 44(2)(aa) the following paragraph is inserted --
"
(ab) the total number of hours worked by the
employee in each week of the employee's
10 employment with the employer unless the
employee's contract of employment provides
for an annual salary exceeding $45 000 or the
salary specified, or worked out in a manner
specified, by the regulations;
15 ".
177. Miscellaneous amendments as to "IR Act"
The provisions referred to in the Table to this section are
amended in each case by deleting "Industrial Relations
Act 1979" and inserting instead --
20 " IR Act ".
Table
s. 3(1) "award" s. 7(b)
s. 3(1) "employee" s. 7(c)
s. 3(1) "employer" s. 26
s. 6(1) s. 45(2)(b)
s. 6(2) s. 46(1)
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Amendments to the Industrial Relations Act 1979 in relation to Division 2
minimum weekly rates of pay
s. 178
Division 2 -- Amendments to the Industrial Relations Act 1979
in relation to minimum weekly rates of pay
178. Section 7 amended
(1) Section 7(1) is amended in the definition of "employee" in
5 paragraph (a) by deleting "industrial".
(2) Section 7(1) is amended in the definition of "industrial matter"
in paragraph (f) as follows:
(a) by deleting "industrial trainees" and inserting instead --
" trainees ";
10 (b) by deleting "industrial training" and inserting instead --
" training ".
(3) Section 7(1) is amended by deleting the definition of "industrial
trainee".
(4) Section 7(1) is amended by inserting in the appropriate
15 alphabetical positions the following definitions --
"
"MCE Act" means the Minimum Conditions of
Employment Act 1993;
"trainee" means a person who belongs to a class of
20 persons prescribed by regulations made by the
Governor as persons to be treated as trainees for
the purposes of this Act;
".
179. Section 50 amended
25 Section 50(2a) is repealed.
page 197
Labour Relations Reform Bill 2002
Part 10 Amendments about minimum weekly rates of pay and other
conditions of employment
Division 2 Amendments to the Industrial Relations Act 1979 in relation to
minimum weekly rates of pay
s. 180
180. Section 51B inserted
After section 51A the following section is inserted in
Part II Division 3 --
"
5 51B. Commission's power to make General Orders as to
matters for which minimum conditions of
employment are prescribed by MCE Act
(1) The Commission does not have power under this
Division to make a General Order setting a minimum
10 condition in relation to a matter if the matter is the
subject of a minimum condition of employment as
defined in the MCE Act.
(2) Nothing in subsection (1) prevents the Commission
from making a General Order under this Division in
15 relation to a matter that is the subject of a minimum
condition of employment as defined in the MCE Act if
the General Order is more favourable to employees
than the minimum condition of employment.
".
20 181. Part II Division 3A inserted
Before Part II Division 4 the following Division is inserted --
"
Division 3A --MCE Act functions
Subdivision 1 -- Preliminary
25 51C. Interpretation
(1) In this Division --
"award" includes an industrial agreement or order of
the Commission under this Act or an award of the
Australian Commission;
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Amendments to the Industrial Relations Act 1979 in relation to Division 2
minimum weekly rates of pay
s. 181
"Commission" means the Commission in Court
Session.
(2) Subject to subsection (1), words and expressions in this
Division that are defined in the MCE Act have the
5 meanings that they have in that Act.
Subdivision 2 -- Minimum weekly rates of pay
51D. Commission to review minimum weekly rates of pay
for purposes of MCE Act
The Commission shall review the following in
10 accordance with section 51E --
(a) the minimum weekly rate of pay applicable
under section 12 of the MCE Act to employees
who have reached 21 years of age and who are
not apprentices or trainees;
15 (b) the minimum weekly rate or rates of pay
applicable under section 14 of the MCE Act to
apprentices;
(c) the minimum weekly rate or rates of pay
applicable under section 15 of the MCE Act to
20 trainees.
51E. When reviews can occur
(1) The Commission shall review the minimum weekly
rates of pay referred to in section 51D(a), (b) and (c)
each time the Commission considers, under
25 section 51(2), a National Wage Decision.
(2) Subject to subsection (3), the Commission may review
one or more of the minimum weekly rates of pay
referred to in section 51D(a), (b) or (c).
page 199
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Part 10 Amendments about minimum weekly rates of pay and other
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Division 2 Amendments to the Industrial Relations Act 1979 in relation to
minimum weekly rates of pay
s. 181
(3) A review under subsection (2) can only occur on an
application made --
(a) by the Council, the Chamber, the Mines and
Metals Association or the Minister; and
5 (b) at least 12 months after the most recent increase
in the rate that is the subject of the application.
51F. Setting of minimum weekly rates of pay by the
Commission
(1) Following a review under section 51E(1) the
10 Commission shall make an order --
(a) rescinding the order setting the minimum
weekly rates of pay referred to in
section 51D(a), (b) and (c) that is in effect at
the time of the review; and
15 (b) setting the new minimum weekly rates of pay
referred to in section 51D(a), (b) and (c).
(2) If, following a review under section 51E(2) of one or
more of the minimum weekly rates of pay referred to in
section 51D(a), (b) or (c), the Commission decides to
20 set a new minimum weekly rate of pay in respect of
one or more of the rates under review, the Commission
shall make an order --
(a) rescinding the order that set the minimum
weekly rates of pay referred to in
25 section 51D(a), (b) and (c) in effect at the time
of the review;
(b) setting the new minimum weekly rate of pay in
respect of the rate or rates that are the subject of
its decision; and
30 (c) resetting any other minimum weekly rate of pay
referred to in section 51D(a), (b) and (c) at the
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Amendments about minimum weekly rates of pay and other Part 10
conditions of employment
Amendments to the Industrial Relations Act 1979 in relation to Division 2
minimum weekly rates of pay
s. 181
respective rate in effect at the time of the
review.
51G. Matters relevant to setting rates for apprentices and
trainees
5 (1) For the purposes of section 51F as it relates to rates for
apprentices or trainees, the Commission may --
(a) set a minimum weekly rate of pay in relation to
apprentices or trainees generally;
(b) subject to subsections (2) and (3), set a
10 minimum weekly rate of pay in relation to
apprentices or trainees who belong to particular
classes of apprentice or trainee; or
(c) do a combination of (a) and (b).
(2) The Commission may set a minimum weekly rate of
15 pay in relation to apprentices or trainees who have
reached 21 years of age that is different from a rate or
rates for apprentices or trainees who are under 21 years
of age.
(3) In setting a minimum weekly rate of pay in relation to
20 apprentices or trainees who have reached 21 years of
age the Commission shall not set different minimum
weekly rates of pay for those apprentices or trainees on
the sole basis of age.
(4) The Commission shall ensure that at any particular
25 time there is applicable in relation to each class of
apprentice and each class of trainee --
(a) a minimum weekly rate of pay set in respect of
that class; or
(b) the minimum weekly rate of pay in relation to
30 apprentices or trainees, as is relevant to the
case, generally.
page 201
Labour Relations Reform Bill 2002
Part 10 Amendments about minimum weekly rates of pay and other
conditions of employment
Division 2 Amendments to the Industrial Relations Act 1979 in relation to
minimum weekly rates of pay
s. 181
(5) In setting a minimum weekly rate of pay in relation to
apprentices or trainees generally or in relation to
apprentices or trainees who belong to a particular class
of apprentice or trainee, the Commission may use such
5 means as in its opinion are appropriate including, but
not limited to --
(a) setting the rate in figures;
(b) setting the rate as a proportion of --
(i) the minimum weekly rate of pay
10 referred to in section 51D(a);
(ii) the minimum rate of pay set by a
General Order under section 51(2); or
(iii) any award or other wages instrument;
(c) adopting some or all of the provisions of any
15 award or other wages instrument; or
(d) setting out any other method for the calculation
or assessment of the rate.
51H. When orders under this Subdivision have, and cease
to have, effect
20 (1) If --
(a) the Commission makes a General Order under
section 51 following its consideration under
that section of a National Wage Decision; and
(b) an order under section 51F(1) is made
25 following a review of minimum weekly rates of
pay at the time the Commission considered that
National Wage Decision,
the order made under section 51F(1) has effect at the
same time the General Order has effect.
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Amendments to the Industrial Relations Act 1979 in relation to Division 2
minimum weekly rates of pay
s. 181
(2) If --
(a) the Commission does not make a General Order
under section 51 following its consideration
under that section of a National Wage Decision;
5 and
(b) an order under section 51F(1) is made
following a review of minimum weekly rates of
pay at the time the Commission considered that
National Wage Decision,
10 the order made under section 51F(1) has effect from
such time as is specified in the order.
(3) An order made under section 51F(2) has effect from
such time as is specified in the order.
(4) An order made under section 51F(1) or (2) has effect
15 until the order is rescinded --
(a) following the next review under section 51(2);
or
(b) following a review under section 51E(2),
whichever happens first.
20 (5) All the provisions of an order made under
section 51F(1) or (2) are to have effect at the same
time.
Subdivision 3 -- Casual employees' loading
51I. Casual employees' loading
25 (1) Subject to subsection (2), the Commission may, by
way of order, set a percentage that is higher than 20%
to be the prescribed percentage for the purposes of
section 11 of the MCE Act.
page 203
Labour Relations Reform Bill 2002
Part 10 Amendments about minimum weekly rates of pay and other
conditions of employment
Division 2 Amendments to the Industrial Relations Act 1979 in relation to
minimum weekly rates of pay
s. 181
(2) An order under subsection (1) can only be made on an
application made --
(a) by the Council, the Chamber, the Mines and
Metals Association or the Minister; and
5 (b) at least 12 months after the determination of the
most recent application for an order under
subsection (1).
Subdivision 4 -- Orders under this Division generally
51J. Notification of hearings under this Division
10 The Commission shall ensure that notice of each initial
hearing to be conducted for the purposes of making or
reviewing an order under this Division is given --
(a) by giving written notice to the Council, the
Chamber, the Mines and Metals Association,
15 the Minister and each organization; and
(b) by publication in the required manner.
51K. Right to be heard
The Commission shall not make an order under this
Division until it has afforded the Council, the
20 Chamber, the Mines and Metals Association, the
Minister and any other person permitted by the
Commission to be heard, an opportunity to be heard in
relation to the matter.
51L. Restrictions on matters that orders under this
25 Division can provide for
An order made under this Division shall not --
(a) provide for a penalty rate or allowance of any
kind;
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Amendments to the Industrial Relations Act 1979 in relation to Division 2
minimum weekly rates of pay
s. 181
(b) provide for a loading of any kind other than that
referred to in section 51I; or
(c) be made in respect of preference of
employment at the time of, or during
5 employment by reason of being or not being a
member of an organization.
51M. Publication of orders
The Commission shall direct the Registrar to prepare
and publish in the Industrial Gazette the provisions of
10 all orders made under this Division.
51N. Variation or rescission
(1) An order made under section 51F shall not be added to,
varied or rescinded except --
(a) following a review under section 51E(1) and in
15 accordance with section 51F(1); or
(b) following a review under section 51E(2) and in
accordance with section 51F(2),
as is relevant to the case.
(2) An order made under section 51I shall not be added to,
20 varied or rescinded except in accordance with
section 51I(2).
(3) Nothing in subsection (1) or (2) affects the
Commission's powers under section 27(1)(m).
".
page 205
Labour Relations Reform Bill 2002
Part 10 Amendments about minimum weekly rates of pay and other
conditions of employment
Division 3 Consequential amendments in relation to minimum weekly
rates of pay
s. 182
182. Miscellaneous amendments as to "MCE Act"
The provisions referred to in the Table to this section are
amended in each case by deleting "Minimum Conditions of
Employment Act 1993" and inserting instead --
5 " MCE Act ".
Table
s. 7F(1) s. 81CA(1) "prosecution jurisdiction"
s. 81AA(c)
Division 3 -- Consequential amendments in relation to
minimum weekly rates of pay
183. Equal Opportunity Act 1984 amended
10 Section 66ZS(1)(b) of the Equal Opportunity Act 1984* is
amended as follows:
(a) by inserting before "an award or" --
"
a provision of the Minimum Conditions of
15 Employment Act 1993,
";
(b) by deleting "that award or industrial agreement" and
inserting instead --
" that provision ".
20 [* Reprinted as at 21 July 2000.
For subsequent amendments see Acts Nos. 36 and 58 of 1999,
2 of 2000 and 12 of 2001.]
184. Vocational Education and Training Act 1996 amended
Schedule 2 to the Vocational Education and Training Act 1996*
25 is amended as follows:
(a) by deleting clause 1(b);
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Amendments about minimum weekly rates of pay and other Part 10
conditions of employment
Consequential amendments in relation to minimum weekly Division 3
rates of pay
s. 184
(b) by deleting clause 1(c);
(c) by deleting clause 1(d)(i);
(d) in clause 1(d)(iii) by deleting "industrial";
(e) by deleting the semicolon and "and" after clause 1(d)
5 and inserting a full stop instead;
(f) by deleting clause 1(e).
[* Act No. 42 of 1996.
For subsequent amendments see 2000 Index to Legislation of
Western Australia, Table 1, p. 475.]
page 207
Labour Relations Reform Bill 2002
Part 11 Other amendments
s. 185
Part 11 -- Other amendments
185. Section 7 amended
(1) Section 7(1) is amended in the definition of "employer" by
inserting after "employees" --
5 "
and also includes a labour hire agency or group training
organization that arranges for an employee (being a
person who is a party to a contract of service with the
agency or organization) to do work for another person,
10 even though the employee is working for the other
person under an arrangement between the agency or
organization and the other person
".
(2) Section 7(1) is amended by inserting in the appropriate
15 alphabetical positions the following definitions --
"
"group training organization" means an organization
that manages the employment and training of
apprentices and trainees under contracted work
20 based arrangements for the purpose of hosting
those apprentices and trainees out to other
employers;
"labour hire agency" means a person or entity that
conducts a business of the kind commonly known
25 as a labour hire agency;
".
(3) Section 7(1) is amended in the definition of "industrial matter"
as follows:
(a) by inserting after "or relating" --
30 " or pertaining ";
(b) by deleting "matter relating" and inserting instead --
" matter affecting or relating or pertaining ";
page 208
Labour Relations Reform Bill 2002
Other amendments Part 11
s. 185
(c) after paragraph (c) by inserting --
"
(ca) the relationship between employers and
employees;
5 ";
(d) by inserting before "but does not include" --
"
and also includes any matter of an industrial nature
the subject of an industrial dispute or the subject of
10 a situation that may give rise to an industrial
dispute
".
(4) Section 7(3) is repealed and the following subsection is inserted
instead --
15 "
(3) A matter that has been referred to a safety and health
magistrate under the Occupational Safety and Health
Act 1984 or the Mines Safety and Inspection Act 1994
is not an industrial matter.
20 ".
(5) After section 7(4) the following subsections are inserted in the
appropriate numerical position --
"
(6) Subject to subsection (7), for the purposes of the
25 definitions of "employee" and "employer" in
subsection (1), if a person ("the principal") 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
30 principal is to be regarded as employing the person, or
each person in the group, to do work.
(7) Subsection (6) has effect only to the extent necessary to
enable a claim of the kind referred to in section
page 209
Labour Relations Reform Bill 2002
Part 11 Other amendments
s. 186
29(1)(b)(ii) to be referred to and dealt with by the
Commission in respect of a person who would not be
an employee but for the operation of subsection (6).
".
5 186. Section 20 amended and transitional and savings provisions
(1) Section 20(2) to (6) are repealed and the following subsection is
inserted instead --
"
(2) The offices of the members of the Commission, other
10 than the President are to be regarded, for the purposes
of the Salaries and Allowances Act 1975 and any other
written law, as having been prescribed for the purposes
of section 6(1)(e) of that Act.
".
15 (2) Until remuneration becomes payable to a member of the
Commission pursuant to the first determination, the member is
to receive remuneration at the rate that would be applicable to
that member if the former provisions were still in operation.
(3) Despite any determination under section 6 of the Salaries and
20 Allowances Act 1975, while a person who was a member of the
Commission at the time of the publication of the first
determination in the Government Gazette remains a member he
or she is to receive remuneration at a rate that is not less than
the rate that was applicable to him or her immediately before
25 that time.
(4) In this section --
"first determination" means the first determination made
under section 6 of the Salaries and Allowances Act 1975
that gives effect to the amendment made by subsection (1);
30 "former provisions" means section 20(1) to (6) of the
Industrial Relations Act 1979 as they were in effect
immediately before the coming into operation of
subsection (1);
page 210
Labour Relations Reform Bill 2002
Other amendments Part 11
s. 187
"member of the Commission" has the meaning given by the
Industrial Relations Act 1979;
"remuneration" has the meaning given by the Salaries and
Allowances Act 1975.
5 187. Section 32 amended
(1) Section 32(3) is amended as follows:
(a) by deleting the semicolon after paragraph (b) and
inserting a full stop instead;
(b) by deleting paragraphs (c) and (d).
10 (2) After section 32(7) the following subsection is inserted --
"
(8) For the purposes of this section the Commission
may --
(a) give such directions and make such orders as
15 will in the opinion of the Commission --
(i) prevent the deterioration of industrial
relations in respect of the matter until
conciliation or arbitration has resolved
the matter;
20 (ii) enable conciliation or arbitration to
resolve the matter; or
(iii) encourage the parties to exchange or
divulge attitudes or information which
in the opinion of the Commission would
25 assist in the resolution of the matter;
(b) give any direction or make any order or
declaration which the Commission is otherwise
authorised to give or make under this Act.
".
page 211
Labour Relations Reform Bill 2002
Part 11 Other amendments
s. 188
188. Section 37A repealed
Section 37A is repealed.
189. Section 51 amended
(1) Section 51(2) is repealed and the following subsection is
5 inserted instead --
"
(2) Subject to section 50(10), when and as often as a
National Wage Decision is made after the coming into
operation of this section the Commission shall of its
10 own motion consider that decision and --
(a) unless it is satisfied that there are good reasons
not to do so, shall make a General Order to
adjust, by the amount of any change in the rate
of wages under that decision, rates of wages
15 paid under awards; and
(b) may make a General Order to adopt in whole or
in part and with or without modification any
principle, guideline, condition or other matter
having effect under that decision.
20 ".
(2) Section 51(2a) is repealed and the following subsections are
inserted instead --
"
(3) If the Commission makes a General Order under
25 subsection (2) the Commission shall ensure that the
order has effect no more than 30 days after the day on
which the relevant National Wage Decision was made.
(4) Subject to this Act, the Commission may add to, vary
or rescind a General Order made under subsection (2)
30 but the Commission shall not add to or vary such an
order in relation to any amount other than the amount
of any change in the rate of wages under the relevant
National Wage Decision.
page 212
Labour Relations Reform Bill 2002
Other amendments Part 11
s. 190
(5) Without limiting the generality of section 26(1), in the
exercise of its jurisdiction under this section the
Commission shall ensure, to the extent possible, that
there is consistency and equity --
5 (a) in relation to the variation of awards; and
(b) in relation to when such variations have effect.
".
190. Sections 7, 47, 50, 55, 72A and 93 and Schedule 1 amended
relating to publication in the Industrial Gazette
10 (1) Section 7(1) is amended by inserting in the appropriate
alphabetical position the following definition --
"
"published in the required manner" means
published in the next available issue of the
15 Industrial Gazette and --
(a) in a newspaper circulating throughout the
State; or
(b) on an internet website maintained by the
Commission;
20 ".
(2) Section 47(3)(b)(i) is amended by deleting "in a newspaper
circulating in the area of the State in which the award or
industrial agreement operates and in the Industrial Gazette" and
inserting instead --
25 " by publication in the required manner ".
(3) Section 47(4) is amended by deleting "the publication in the
newspaper or in the Industrial Gazette, whichever is the later, of
the notice referred to in subsection (3)" and inserting instead --
"
30 the day on which the notice referred to in
subsection (3) is first published
".
page 213
Labour Relations Reform Bill 2002
Part 11 Other amendments
s. 190
(4) Sections 50(9) and 55(2) are each amended by deleting
"Industrial Gazette" and inserting instead --
" required manner ".
(5) Section 55(3) is amended by deleting "date of the issue of the
5 Industrial Gazette in which the matters referred to in subsection
(2) are" and inserting instead --
"
day on which the matters referred to in subsection (2)
are first
10 ".
(6) Section 72A(3) is repealed and the following subsection is
inserted instead --
"
(3) The Registrar shall publish notice of an application
15 under subsection (2) in the Industrial Gazette and --
(a) in a newspaper circulating throughout the State;
or
(b) on an internet website maintained by the
Commission,
20 and the application shall not be listed for hearing
before the Full Bench until after the expiration of
30 days from the day on which the notice is first
published.
".
25 (7) Section 93(3) is amended by deleting "Gazette all" and inserting
instead --
"
Gazette and --
(a) in a newspaper circulating throughout the State;
30 or
page 214
Labour Relations Reform Bill 2002
Other amendments Part 11
s. 191
(b) on an internet website maintained by the
Commission,
all
".
5 (8) Section 93(4) is repealed and the following subsection is
inserted instead --
"
(4) The Industrial Gazette shall be published in such form
and at such intervals as the Registrar, after consultation
10 with the Chief Commissioner, directs.
".
(9) Section 93(6) is amended by deleting "a consolidation of any
such award." and inserting instead --
"
15 and --
(a) in a newspaper circulating throughout the State;
or
(b) on an internet website maintained by the
Commission,
20 a consolidation of any such award.
".
(10) Schedule 1 item 1 is deleted and the following item is inserted
instead --
" 1. Retirements from industrial agreements. ".
25 191. Amendments to the Act and the Labour Relations Legislation
Amendment Act 1997 about collection of union subscriptions
(1) Section 7(1) is amended in the definition of "industrial matter"
by inserting after paragraph (f) the following paragraph --
"
30 (g) any matter relating to the collection of
subscriptions to an organization of
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Labour Relations Reform Bill 2002
Part 11 Other amendments
s. 192
employees with the agreement of the
employee from whom the subscriptions are
collected including --
(i) the restoration of a practice of collecting
5 subscriptions to an organization of
employees where that practice has been
stopped by an employer; or
(ii) the implementation of an agreement
between an organization of employees
10 and an employer under which the
employer agrees to collect subscriptions
to the organization;
".
(2) Section 7(2) is repealed.
15 (3) Section 29(2) of the Labour Relations Legislation Amendment
Act 1997 is repealed.
192. Amendments about duties of employees of organizations
(1) Part II Division 5 is amended in the heading by deleting "and
employees".
20 (2) Section 74(1) is amended as follows:
(a) by deleting "or employee";
(b) by deleting "and includes an employee who is entitled to
so participate in a representative or advisory capacity".
193. Amendments about Federal award coverage
25 (1) Part IIIA is repealed.
(2) Section 73 is amended as follows:
(a) subsections (10a) and (10b) are repealed;
(b) subsection (12)(aa) is deleted;
(c) subsection (13) is amended by deleting "or Part IIIA".
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Labour Relations Reform Bill 2002
Other amendments Part 11
s. 194
(3) Section 81A is amended by deleting "84K,".
(4) Section 81CA(1) is amended in paragraph (a) of the definition
of "general jurisdiction" by deleting "84K,".
194. Amendments about pre-strike ballots
5 (1) Part VIB is repealed.
(2) Section 7(1) is amended by deleting the definition of "pre-strike
ballot".
(3) Section 32(4)(a), (b) and (c) are each amended by deleting ", (8)
or (9)".
10 (4) Section 32(8), (9), (10), (11), (12), (13), (14), (15), (16), (17),
(18), (19), (20), (21) and (22) are repealed.
(5) Section 44(5b), (5c), (6b) and (15) are repealed.
(6) Section 73(3)(a)(iii) is amended by deleting "or section 97B(2)
of this Act".
15 (7) Schedule 2 is repealed.
(8) The Industrial Relations (Pre-strike Ballot) Regulations 1997
are repealed.
(9) The Industrial Relations (Pre-strike Ballot Expenses)
Regulations 1997 are repealed.
20 195. Amendments about political expenditure by organizations
(1) Part VIC is repealed.
(2) Section 81A is amended by deleting ", 97T, 97U".
(3) Section 81CA(1) is amended in paragraph (a) of the definition
of "general jurisdiction" by deleting ", 97U".
25 (4) Section 81CA(1) is amended by deleting paragraph (aa) of the
definition of "prosecution jurisdiction".
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Labour Relations Reform Bill 2002
Schedule 1 Transitional minimum weekly rates of pay
Schedule 1 -- Transitional minimum weekly rates of pay
[s. 168]
1. Interpretation
Unless the contrary intention appears, words and expressions used in
5 this Schedule have the same respective meanings as they have in the
Minimum Conditions of Employment Act 1993.
2. Minimum weekly rate of pay for employees 21 or more years
of age
The minimum weekly rate of pay applicable at a particular time to
10 employees who have reached 21 years of age but who are not
apprentices or trainees is the rate for the minimum adult weekly
award wage for employees who have reached 21 years of age and who
are not apprentices or trainees, as provided for in the General Order
made under section 51(2) of the Industrial Relations Act 1979 that is
15 in effect at that time.
3. Minimum weekly rate of pay for employees less than 21 years
of age
(1) The minimum weekly rate of pay applicable at a particular time to
employees who are of the age mentioned in the first column in the
20 Table to this subclause but who are not apprentices or trainees is the
percentage, set out opposite that age in the second column in the
Table of the rate referred to in clause 2 in effect at that time, rounded
up to the nearest 10 cents.
Table
Age Percentage of 21 year old rate
20 years 90%
19 years 80%
18 years 70%
17 years 60%
16 years 50%
under 16 years 40%
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Labour Relations Reform Bill 2002
Transitional minimum weekly rates of pay Schedule 1
(2) Subclause (1) is for information only and if there is any inconsistency
between subclause (1) and section 13 of the Minimum Conditions of
Employment Act 1993, the section prevails.
4. Minimum weekly rate of pay for apprentices and trainees
5 (1) The minimum weekly rate of pay for an apprentice or trainee in
relation to whom a workplace agreement or an employer-employee
agreement is not in force is the rate of pay that is provided for under
an award that applies to that apprentice or trainee.
(2) The minimum weekly rate of pay for an apprentice or trainee in
10 relation to whom a workplace agreement or an employer-employee
agreement is in force is the rate of pay that is provided for under an
award that would, if the workplace agreement or employer-employee
agreement were not in force, apply to that apprentice or trainee.
page 219
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