City of Brisbane Act Amendment Act 1973 (Qld)

523 A O VIC I ^O ^SECU ' 3 TPi S UN REGI N AE No. 59 of 19 73 An Act 0 - iC in cc Act 192 4- 1972 [ASSENTED TO 15TH NOVEMBER, 1973] BE IT ENACTED by the Queen ' s Most Excellent Majesty, by and with the advice and consent of the Legislative Assembly of Queensland in Parliament assembled , and by the authority of the same, as follows:- I. Short tit citati o n. (1) This Act may be cited as the City of Brisbane Act Amendment Act 1973. (2) The City of Brisbane Act 1924-1972 is in this Act referred to as the Principal Act. (3) The Principal Act as amended by this Act may be cited as the City rf' Brishane Act 1924-1973.

524 City of Brisbane Act Amendment Act 1973, No. 59 2. Repeal of and new s. 25D. Section 251) of the Principal Act is repealed and the following section is substituted.- " 25D. Appeal by employee against disciplinary action. (1) In this section and in Schedule III of this Act in its application and extension to appeals under this section- employee " includes the Town Clerk, the permanent heads of the Departments of the Council and every other officer or employee of the Council; and " otherwise disciplined " means disrated or fined or dealt with in any other manner other than being dismissed. (2) Any employee of the Council who has been dismissed from the employment of the Council or who has. been otherwise disciplined by or on behalf of the Council on the ground of misconduct or unfitness, or neglect of or violation of or absence from duty, or any other offence against discipline, or on any other ground, or without any ground having been given or reason having been assigned may appeal to the Appeal Board referred to in Schedule III of this Act which shall be constituted for the purposes of such appeal. (3) Where an employee is dismissed or otherwise disciplined on any ground pursuant to subsection (2), such ground shall be furnished in writing to the employee by or on behalf of the Council at the time he is notified he is dismissed or otherwise disciplined. (4) Where an employee appeals to the Appeal Board under this section against his being dismissed or otherwise disciplined, the grounds furnished to him by or on behalf of the Council in accordance with subsection (3) shall be the grounds on which he was dismissed or otherwise disciplined and no other grounds shall be advanced against him. (5) An appeal under this section may be made on the ground of innocence of the charge or of any act, omission, matter or conduct meriting his being dismissed or otherwise disciplined, as the case may be, or excessive severity of the punishment. (6) Where an employee appeals to the Appeal Board under this section against his being dismissed or otherwise disciplined and no grounds for- his being dismissed or otherwise disciplined have been furnished in writing to him by or on behalf of the Council at the time he is notified he is dismissed or otherwise disciplined, the Appeal Board, on being satisfied that no grounds have been furnished as aforesaid, shall determine that the appeal is allowed and- (a) where the appeal is against being dismissed, that the employee be reinstated; (b) where the appeal is against being otherwise disciplined, that the employee be in all respects in no less favourable a position than he would have been had he not been otherwise disciplined, and, subject to this section and to Schedule III, every such determination shall have effect according to its tenor. (7) In the hearing of an appeal on the ground of excessive severity of the punishment, the Board shall take into consideration the previous record of the appellant. (8) The provisions of Schedule III of this Act shall apply and extend to appeals under this section.".

City of Brisbane Act Amendment Act 1973, No. 59 525 3. Amendment of Schedule M. Schedule III of the Principal Act is amended by- (a) in clause 2- (i) omitting the word " nominated " in paragraph (c) of subclause (i) and substituting the word " appointed "; (ii) inserting after subclause (v) the following subclause:- " (vi) '4 f s ve. The secretary shall- (a) in any case where he is not notified within the time prescribed by clause 9 of this Schedule and otherwise pursuant to that clause of the name and address of the Council's representative on the Board; and (b) in any case where he is not notified within the time prescribed by clause 10 of this Schedule and otherwise pursuant to that clause of the appointment of and the name and address of the members' representative on the Board, immediately notify the Minister, and in any such case the Minister may appoint a person to be the Council's representative or the members' representative, as the case may be, and the person so appointed by the Minister shall be deemed to have been appointed by the Establishment and Co-ordination Committee as the Council's representative on the Board or appointed by the executive of the Union of which the appellant is a member as the members' representative on the Board as the case may be. The Minister shall cause the secretary to be notified of the name and address of any person appointed by him pursuant to this subclause.", (b) in clause - 4, omitting the form of notice of appeal and substituting the following form:- " NOTICE OF APPEAL I, of , hereby give notice of appeal against the decision made by or on behalf of the Brisbane City Council and communicated to me on the day of , 19 whereby (here insert briefly subject-matter of decision). The grounds on which I make my appeal are (here insert grounds of appeal). *At present I occupy the position of * 1 formerly-occupied at classification $ minimum, and $ maximum, and *am in receipt of *a salary of $. per annum. *was wages of $ per week. I am a member of (here insert name of Union) Union. Dated at this day of ,19 Appellant. *Cross out whichever is inapplicable."; (c) in clause 6 (i) omitting the heading and substituting the heading " Dealing with notice of appeal.";

526 Cit}• of Brisbane Act Amendment Act 1973, No. 59 (ii) omitting the words " the same to the Town Clerk " and substituting the words " a copy of it to each of them the Minister, the Town Clerk, and the Union of which the appellant is a member,"; (d) in clause 8- (i) inserting after the words " when the appeal will be heard " the words " and the particulars provided for in the form prescribed by this clause "; (ii) inserting in the form of notice of hearing of appeal, after the paragraph ending with the words " (day of week and date)." the following paragraph:- " The names of the persons appointed to constitute the Appeal Board are as follows:-(here insert nantesofinembersofthe Board)."; (e) in clause 9, omitting the words " not less than fourteen days before the date of hearing " and substituting the words " within fourteen days of the receipt by him of the copy of the notice of appeal pursuant to clause 6 "; (f) in clause 10- (i) inserting after the words " clause two hereof," the words " and the name and address of such representative,"; (ii) omitting the words " not less than fourteen days before the date of hearing." and substituting the words " within fourteen days of the receipt by the Union of the copy of the notice of appeal pursuant to clause 6."; (g) omitting clause 18 and substituting the following clause:- " 18. Public or privat : , and rf,.-_ _ I'3n. (i) An appeal under section 25c or section 25D of this Act shall be heard in private except where the appellant, at any time up to the commencement of the hearing of the appeal, requests that it be heard in public, in which case the appeal shall be so heard. (ii) Where an appeal under section 25c of this Act is heard in private, neither the Council nor the appellant shall be represented in the proceedings by counsel or solicitor, but they may respectively be represented in the proceedings by its or his agent, not being counsel or solicitor, duly appointed in writing in that behalf. (iii) Where- (a) an appeal under section 25c of this Act is heard in public; (b) an appeal is heard under section 25D of this Act, the Council and the appellant may respectively be represented in the proceedings by its or his counsel or solicitor or by its or his agent duly appointed in writing in that behalf. (iv) Any agent who may represent the Council or the appellant pursuant to this clause, as well as any counsel or solicitor who may represent the Council or the appellant pursuant to this clause, may examine witnesses and address the Board."; (h) omitting clause 19 and substituting the following clause:- " 19. Duty of Board . (i) The Appeal Board shall in respect of every appeal transmit the evidence taken together with its decision thereon to the Town Clerk or, where the appeal is against the Town Clerk being dismissed or otherwise disciplined, to the Mayor.

City of Brisbane Act Amendment Act 1973, No. 59 527 (ii) The Appeal Board shall make its inquiry without regard to legal forms and solemnities , and shall direct itself by the best evidence it can procure or that is laid before it, whether the same is such evidence as the law would require or admit in other cases or not. (iii) For the purposes of an appeal under section 25c or section 25D of this Act, the Appeal Board shall have and may exercise all or any of the powers, authorities , protections and jurisdictions of a Commission or a Commissioner within the meaning of The Commissions of Inquiry Acts 1950 to 1954. (iv) Subject to 'subsection ( 6) of section 25D of this Act, the Appeal Board, in making a determination in respect of an appeal under the said section 25D, may- (a) in the case of an appeal against being dismissed , dismiss the appeal or allow it or vary the decision of dismissal, and, where it allows the appeal, it shall determine that the appellant be reinstated; (b) in the case of an appeal against being otherwise disciplined , dismiss the appeal or allow it or vary the decision of otherwise disciplining , and, where it allows the appeal , it shall determine that the appellant be in all respects in no less favourable a position than he would have been had he not been otherwise disciplined. Every determination shall, subject to the said section 25D and to this Schedule, have effect according to its tenor. (v) The Appeal Board in varying a decision of dismissal or otherwise disciplining pursuant to subclause -( iv) shall determine such punishment as it considers appropriate in substitution therefor and the substituted punishment shall constitute the punishment of the appellant in lieu of that appealed against: Provided that the punishment shall be such that could have been imposed on him in the first instance when he was dismissed or otherwise disciplined. (vi) The Appeal Board, in making a determination in respect of an appeal under section 25c of this Act, shall determine as it deems just having regard to the considerations prescribed for determining the claims of officers for promotion to fill a vacancy or a new office , whether- (a) it upholds the appeal and recommends to the Establishment and Co - ordination Committee that the promotion appealed against be set aside; or (b) it dismisses the appeal and recommends to the Establishment and Co-ordination Committee accordingly."; (i) omitting clause 20 and substituting the following clause:- " 20. Evident : and decision on appeal to be forwarded to Council or C ee. (i) The Town Clerk shall forward to the Establishment and Co-ordination Committee the evidence and decision of the Appeal Board in every case where it is transmitted to him pursuant to clause 19. within fourteen days of his receiving it.

528 City of Brisbane Act Amendment Act 1973, No. 59 (ii) The Mayor shall forward to the Council the evidence and decision of the Appeal Board in every case where it is transmitted to.him pursuant to clause 19, within fourteen days of his receiving it."; (j) omitting clause 21 and substituting the following clause:- 66 21. P:-w:s of C. _I e in respect of a...:-Is under sec tion 25C , C. 's lecision . In the case of an appeal under section 25c, the Establishment and Co-ordination Committee shall consider the evidence and decision forwarded to it pursuant to clause 20 and may confirm or set aside the promotion appealed against. In every such case the decision of the Committee shall be final and shall not be subject to any further appeal to any court or tribunal whatsoever and no writ of prohibition or mandamus or certiorari shall lie in respect thereof."; (k) omitting clause 22 and substituting the following clause:- " 22. D ec ision in respect of appeal to he notified to appellant. (i) In the case of an appeal under section 25c, the Town Clerk shall, within fourteen days of the decision of the Establishment and Co-ordination Committee in respect of the appeal, notify the appellant of such decision. (ii) The Mayor shall, within the time referred to in subclause (ii) of clause 20, cause the appellant to be notified of the decision of the Appeal Board in every case where the evidence and decision is transmitted to him under clause 19. (iii) Subject as aforesaid, the Town Clerk shall, within the time referred to in subclause (i) of clause 20, notify the appellant of the decision of the Appeal Board in every case where the evidence and decision is transmitted to him under clause 19."; (1) omitting clause 23 and substituting the following clause:- " 23. Decision of Appeal Boar d final in res pec t of appeals under tion 25D . Subject to clause 23A, a decision or determination of the Appeal Board in respect of an appeal under section 25D of this Act shall be final and shall be given effect to by the Establishment and Co-ordination Committee and the Council and shall not be subject to any further appeal to any court or tribunal whatsoever and no writ of prohibition or mandamus or certiorari shall lie in respect thereof."; (m) inserting after clause 23 the following clause:- " 23A. Compensation in lieu of . reinstate m ent. (i) Notwithstanding a decision or determination of the Appeal Board that an appellant who has appealed against being dismissed be reinstated, the Council (in the case of the dismissed employee being the Town Clerk) and the Establishment and Co-ordination Committee (in the case of any other dismissed employee) may elect not to reinstate the dismissed employee but, in lieu, to pay to him compensation of an amount equivalent to four weeks' salary or wages for each year of service with the Council or, where he has served also with any Local Authority constituted under the Local Government Act 1936-1973, for each year of service with the Council and any such Local Authority, such salary or wages being reckoned on the average of the-weekly salary or wages paid to him during the fifty-two weeks immediately preceding the date upon which he was dismissed or paid to him during his period of service with the Council if that period is of a duration of less than fifty-two weeks.

City of Brisbane Act Amendment Act 1973 , N o. 59 529 (ii) Where in the calculation of the period of service there is part of a year as a residue, or where the period of service is for part of a year only, compensation pro rata shall be paid in respect of that part of a year. -(iii) In the calculation of the period of service, the employee shall be deemed to have continued in -the service of the Council up -to the date of election referred to in this clause. (iv) An election shall be made by the Council or the Establishment and Co-ordination -Committee, as the case :may be, within fourteen days of the Appeal Board's decision being forwarded to it and on making the election, it shall notify the enlployee'forthwith. (v) Where an election is made in accordance with this clause and -the employee is not paid the amount of compensation .as -prescribed, he may recover the amount from -the =Council in any court °of competent jurisdiction as a debt due to -him by the -Council.',.; (n) inserting, after clause 23A as inserted by this Act the following >clause:- " 23B. Preservation - of -rights :of employee. '(1) Where an =employee -is reinstated in the employment of the Council pursuant to-this-Act following-an appeal by=him against dismissal, ;his employment shall be -on terms and conditions not -less :favourable than those on =which he -held employment immediately -prior to dismissal and, without :limiting the .generality -of the -foregoing,- (a)'-his -rights to annual, sick and 'long service ':leave, .superannuation 'benefits and incremental payments shall be preserved, -and any ,period of absence -from duty 'because ;of such dismissal shall not .be :treated as a break in the :period of his continuous -service with the Council but shall be -deemed to be part of such continuous service; (b) all necessary .adjustments shall be .made with respect to any payments made to the employee in relation A o "long service leave or superannuation benefits, including repayment by the employee of payments made to him by the Council or the appropriate superannuation fund, and with respect to -superannuation premiums or -contributions so that=the position will be the same as it would have been had-the employee not-been dismissed -but, in -lieu, had continued to be employed by --the Council; (c) the Council shall pay -to him the appropriate salary -or wages that would have -been payable to him from the time of his dismissal to the time of his reinstatement had he not°been dismissed. (ii) Where the Council or the Establishment and Co-ordination Committee elects pursuant to clause 23A not -to reinstate the employee the Council shall pay to him the appropriate salary or wages, annual, sick and long service leave payments, payments in respect of superannuation contributions and incremental payments that would have been due or payable to him up to the time compensation is paid to him pursuant to the said clause had he remained an employee up to that time.

530 City of Brisbane A ct Amendment Act 1973, No. 59 (iii) Any moneys payable in accordance with this clause may be recovered by the person to whom they are payable from the person by whom they are payable in any court of competent jurisdiction as a debt due. (iv) Any payments . or adjustments made pursuant to this clause shall take into account any period of suspension of the employee from his duties during which he was not paid salary or wages, and for this purpose a period between dismissal and reinstatement or election includes a period of suspension. (v) The provisions of this clause apply subject to any Appeal Board determination with respect to a substituted punishment in accordance with subclause ( v) of clause 19.". 4. Retrospectivity. (1) Subject to this section, section 25o of the Principal Act, as substituted by this Act, and Schedule III of the Principal Act, as amended by this Act, shall, in respect of any employee of the Council who has been dismissed from the employment of the Council or who has been otherwise disciplined by or on behalf of the Council during the period commencing on the first day of January, 1973, and ending on the date of commencement of this Act without any ground having been given or reason having been assigned for being so dismissed or otherwise disciplined, have effect and be deemed to have had effect as though they commenced and were effective on and from the first day of January, 1973, and shall have retrospective operation accordingly. (2) An employee to whom subsection (1) refers who desires to appeal against ,his having been dismissed or otherwise disciplined shall within twenty-one days from the commencement of this Act notify the Council in writing accordingly. (3) The Council shall, within fourteen days of being so notified, furnish to the employee in writing the ground or grounds upon which he was dismissed or otherwise-disciplined. (4) Where the -ground is, or the grounds are, furnished to the employee in accordance with subsection (3), the employee may appeal to the Appeal Board by notice despatched to its secretary within fourteen days of the ground or grounds being furnished and the provisions of Schedule III of the Principal Act, as referred to in subsection (1), shall apply with respect to the appeal. (5) Where no grounds are, furnished to the employee in accordance with subsection (3), the employee may appeal to the Appeal Board by notice despatched to its secretary within fourteen days of the expiry time for the furnishing by the Council to the employee of the ground or grounds on -which he was dismissed or otherwise disciplined, setting out in the notice that no grounds were furnished to him, and the Appeal Board, on being satisfied that no grounds were furnished as aforesaid, shall determine that the appeal is allowed and- (a) where the appeal is against being dismissed, that the employee be reinstated; (b) where the appeal is against being otherwise disciplined, that the employee be. in all respects in no less favourable a position than he would have been had he not been otherwise disciplined, and the provisions of Schedule III of the Principal Act, as referred to in subsection (1), shall, subject as aforesaid, apply with respect to the appeal.

City of Brisbane Act Amendment Act 1973, No. 59 531 (6) The provisions of this section apply to an employee referred to in subsection (1) notwithstanding that he may have lodged an appeal or purported appeal during the period referred to in that subsection and irrespective. of the result of or the stage reached in or with respect to that appeal before the Appeal Board or before any court or tribunal whatsoever. (7) In this section- employee " includes the Town Clerk, the permanent heads of the Departments of the Council and every other officer or employee of the Council ; and " otherwise disciplined " means disrated or fined or dealt with in any other manner other than being dismissed.