Western Australian Consolidated Acts Western Australian Consolidated Acts (1) Subject to this
section, the Commission constituted by a commissioner may summon any person to
attend, at a time and place specified in the summons, at a conference before
the Commission.
(2) A summons under
this section —
(a) may
be given in the prescribed manner; and
(b) when
so given shall, in any proceedings under this Act relating thereto, be deemed
to have been served on the person to whom it is directed unless that person,
in those proceedings, satisfies the commissioner who caused the summons to be
given or the Full Bench, as the case may be, that he did not receive the
summons.
(3) Any person so
summoned shall, except for good cause, proof of which is on him, attend the
conference at the time and place specified in the summons and continue his
attendance thereat as directed by the Commission.
[(4) repealed]
(5) A conference under
this section shall be held in private unless the Commission, at any stage of
the conference, is of the opinion that the objects of the Act will be better
served by holding the conference in public.
(5a) In endeavouring
to resolve any matter by conciliation the Commission shall do all such things
as appear to it to be right and proper to assist the parties to a conference
under this section to reach an agreement on terms for the resolution of the
matter.
(6) The Commission
may, at or in relation to a conference under this section, make such
suggestions and give such directions as it considers appropriate and, without
limiting the generality of the foregoing may —
(a)
direct the parties or any of them to confer with one another or with any other
person and without a chairman or with the Registrar or a deputy registrar as
chairman;
(b)
direct that disclosure of any matter discussed at the conference be limited in
such manner as the Commission may specify;
(ba)
with respect to industrial matters, give such directions and make such orders
as will in the opinion of the Commission —
(i)
prevent the deterioration of industrial relations in
respect of the matter in question until conciliation or arbitration has
resolved that matter;
(ii)
enable conciliation or arbitration to resolve the matter
in question; or
(iii)
encourage the parties to exchange or divulge attitudes or
information which in the opinion of the Commission would assist in the
resolution of the matter in question;
(bb)
with respect to industrial matters —
(i)
give any direction or make any order or declaration which
the Commission is otherwise authorised to give or make under this Act; and
(ii)
without limiting paragraph (ba) or
subparagraph (i), in the case of a claim of harsh, oppressive or unfair
dismissal of an employee, make any interim order the Commission thinks
appropriate in the circumstances pending resolution of the claim;
and
(c)
exercise such of the powers of the Commission referred to in
section 27(1) as the Commission considers appropriate.
(6a) An order made
under subsection (6)(ba) or (bb) —
(a)
binds only the parties to the relevant conference under this section; and
(b) may
vary the operation of an existing award or industrial agreement in respect of
the parties referred to in paragraph (a).
(7) The Commission may
exercise the power conferred on it by subsection (1) —
(a) on
the application of —
(i)
any organisation, association or employer;
(ii)
the Minister on behalf of the State; or
(iii)
an employee in respect of a dispute relating to his
entitlement to long service leave;
or
(b) on
the motion of the Commission itself whenever industrial action has occurred
or, in the opinion of the Commission, is likely to occur.
(8) Where, at a
conference held in accordance with this section, agreement is reached between
the parties or any of them in relation to any industrial matter the Commission
may —
(a) make
an order in the terms of that agreement binding only on those parties who
consented thereto; or
[(b), (c) deleted]
(d)
where the nature or subject matter of the agreement does not, in the opinion
of the Commission, require that an order in terms of the agreement be made,
make, sign, and file a memorandum of the terms of the agreement.
(9) Where at the
conclusion of a conference held in accordance with this section any question,
dispute, or disagreement in relation to an industrial matter has not been
settled by agreement between all of the parties, the Commission may hear and
determine that question, dispute, or disagreement and may make an order
binding only the parties in relation to whom the matter has not been so
settled.
(10) Subject to
subsections (11) and (12), the Commission may, for the hearing and
determination of a matter under subsection (9), be constituted by the
commissioner who presided over the conference.
(11) Where the
commissioner referred to in subsection (10) proposes to constitute the
Commission for the purpose mentioned in that subsection, he shall, at the
conclusion of the conference advise the parties thereto of his intention so to
do, and, if any party thereupon objects to the Commission being so constituted
for that purpose, that commissioner shall not enter upon the hearing of the
matter concerned unless —
(a) he
has discussed with the Chief Commissioner the propriety of his so doing; and
(b) the
Chief Commissioner, after interviewing the objecting party, has directed him
so to do.
(12) Where the Chief
Commissioner does not give the direction referred to in
subsection (11)(b), he may —
(a)
allocate the matter in dispute for hearing and determination by the Commission
constituted by a commissioner other than the commissioner who presided over
the conference; and
(b)
exercise in relation to the matter such powers of the Commission referred to
in section 27(1) as he considers appropriate and are not inconsistent
with the hearing and determination under paragraph (a).
(12a) Where, at the
conclusion of a conference held in accordance with this section, any question,
dispute, or disagreement in relation to an industrial matter has not been
settled by agreement between all of the parties, and the parties in relation
to whom the matter has not been so settled all consent in writing to the
commissioner who presided over the conference conclusively determining that
question, dispute or disagreement, that commissioner may hear and determine
that question, dispute, or disagreement and make an order binding on the
parties who so consented.
(12b) Nothing in
subsection (12a) authorises the commissioner to use final offer
arbitration without the express consent, in writing, of all of the parties
concerned.
(12c) Notwithstanding
section 49 no appeal shall lie from an order made under
subsection (12a).
(12d) As soon as
is practicable after giving or making a direction, order or declaration orally
under this section, 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 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.
(13) Section 39
applies, with such modifications as are necessary, to an order made under this
section.
[Section 44 amended by No. 121 of 1982
s. 18; No. 94 of 1984 s. 27, 65 and 66; No. 119 of 1987
s. 10; No. 15 of 1993 s. 17; No. 3 of 1997 s. 37;
No. 20 of 2002 s. 141(1) 4 , 151 and 194(5); amended in
Gazette 15 Aug 2003 p. 3686.]
[ 45. Repealed by No. 94 of 1984 s. 66.]
[Heading inserted by No. 20 of 2002
s. 119(2).]