Commonwealth Conciliation and Arbitration Act 1930 (Cth)

COMMONWEALTH CONCILIATION AND ARBITRATION.

  

No. 43 of 1930.

An Act to amend the Commonwealth Conciliation and Arbitration Act 1904-1928.

[Assented to 18th August, 1930.]

BE it enacted by the King’s Most Excellent Majesty, the Senate, and the House of Representatives of the Commonwealth of Australia, as follows:—

Short title and citation.

1.—(1.) This Act may be cited as the Commonwealth Conciliation and Arbitration Act 1930.

(2.) The Commonwealth Conciliation and Arbitration Act 1904-1928 is in this Act referred to as the Principal Act.

(3.) The Principal Act, as amended by this Act, may be cited as the Commonwealth Conciliation and Arbitration Act 1904—1930.

Objects of Act.

2. Section two of the Principal Act is amended by omitting paragraph i, and inserting in its stead the following paragraph:—

“i. To promote goodwill in industry by conciliation and arbitration;”.

Parts.

3. Section three of the Principal Act is amended by omitting the words “Part II.—Prohibition of Lock-outs and Strikes in relation to Industrial Disputes.”

Interpretation.

4. Section four of the Principal Act is amended—

(a) by omitting the definition of “Lock-out”; and

(b) by omitting the definition of “Strike”.

Penalty in case offence repeated or continued.

5. Section five of the Principal Act is repealed.

Prohibition of lock-outs and strikes in relation to industrial disputes.

6.The heading to Part II., and sections six to eight inclusive and section ten, are repealed.

 

Jurisdiction of Court—how exercised.

7. Section eighteen a of the Principal Act is amended—

(a)by omitting from sub-section (4.) the words “to make an award—” and paragraphs (a) and (b), and inserting in their stead the words—

“(i) either to make an award—

(a) altering the standard hours of work in any industry; or

(b) altering the basic wage or the principles on which it is computed, or

(ii) to vary or give an interpretation of an award where the variation or interpretation would result in any such alteration,”; and

(b)by omitting from that sub-section the words “increase or reduction”, and inserting in their stead the words “alteration, variation or interpretation”.

Interpretations affecting standard hours.

8. Section eighteen aa of the Principal Act is amended—

(a) by omitting the letter “(a)”;

(b) by omitting the words “or (b) a variation of an award is made affecting the standard hours of work fixed by that award in an industry or in a section of an industry,”; and

(c) by omitting the words “or variation”.

9. Section eighteen c of the Principal Act is repealed, and the following section inserted in its stead:—

Conciliation Commissioners.

“18c.—(1.) The Governor-General may appoint Conciliation Commissioners not more than three in number upon such terms and conditions as to remuneration and otherwise as he thinks fit.

(2.) Each Conciliation Commissioner shall, subject to this Act, be appointed for a term of five years, and be eligible for reappointment.

(3.) A Conciliation Commissioner shall devote the whole of his time to the duties of his office except when he is absent on leave granted by the Attorney-General.

(4.) The Attorney-General may suspend a Conciliation Commissioner from office for proved misbehaviour or incapacity.

(5.) The Minister shall within seven days after the suspension, if the Parliament is then sitting, or if the Parliament is not then sitting, within seven days after the next meeting of the Parliament, cause to be laid before both Houses of the Parliament a full statement of the grounds of the suspension, and unless within sixty days thereafter an address is presented to the Governor-General by the Senate and the House of Representatives praying for the removal of the Conciliation Commissioner from office, the Conciliation Commissioner shall be restored to office; and if such address is so presented the Governor-General may confirm the suspension and declare the office of that Conciliation Commissioner to be vacant and the office shall thereupon be and become vacant.

 

(6.) A Conciliation Commissioner shall be deemed to have vacated his office if—

(a)he engages, during his term of office, in any employment (not being employment in the Public Service of the Commonwealth) outside the duties of his office; or

(b)he becomes bankrupt or insolvent, or applies to take the benefit of any Act for the relief of bankrupt or insolvent debtors, or compounds with his creditors, or makes an assignment of his salary for their benefit; or

(c) he is wilfully absent from duty for a period of fourteen consecutive days except on leave granted by the Attorney-General (which leave the Attorney-General is hereby authorized to grant), or becomes incapable of performing his duties.

(7.) A Conciliation Commissioner shall have the powers of a Judge under sections sixteen and sixteen a of this Act, but the appointment of a Conciliation Commissioner shall not affect the exercise by a Judge of his powers under those sections.

(8.) A Conciliation Commissioner shall also have all the powers which the Court or a Judge has under section thirty-eight of this Act, other than—

(a) the powers contained in paragraphs (d) and (f) of that section, and

(b) the power to give an interpretation of any term of an existing award, contained in paragraph (o) of that section:

Provided that a Conciliation Commissioner shall not have power, in pursuance of this section, either to make or vary an award, which, by reason of the provisions of section eighteen a or eighteen aa of this Act, cannot be made or varied by a single Judge.

(9.) Any award or order made by a Conciliation Commissioner pursuant to the power conferred by this section shall, subject to section thirty-one a of this Act, be and be deemed to be an award or order of the Court.”.

Representative orders.

10. Section nineteen b of the Principal Act is amended—

(a) by inserting after the word “Court” (first occurring) the words “or a Conciliation Commissioner”; and

(b) by inserting after the word “Court” (wherever elsewhere occurring) the words “or the Commissioner”.

State authority to cease dealing with dispute on order of Court or Commissioner.

11. Section twenty of the Principal Act is amended—

(a)by inserting after the word “Court” (first occurring) the words “or a Conciliation Commissioner”;

(b)by inserting after the word “Court” (second occurring) the words “or a Commissioner”; and

(c) by inserting after the word “Court” (wherever elsewhere occurring) the words “or the Commissioner”.

 

Application to Court for declaration of existence of dispute.

12. Section twenty-one aa of the Principal Act is amended—

(a) by inserting in sub-section (1.), after the word “Court” (first occurring), the words “or a Conciliation Commissioner”;

(b)by inserting in sub-section (1.), after the word “Court” (second occurring), the words “or Commissioner”; and

(c) by inserting in sub-section (1.), after the word “Court” (last occurring), the words “or a Conciliation Commissioner”.

Inquiry by Court or Conciliation Commissioner.

13. Section twenty-three of the Principal Act is amended—

(a)by inserting in sub-section (1.), after the word “Court”, the words “or a Conciliation Commissioner”;

(b)by inserting in sub-section (1.), after the word “it”(first occurring), the words “or he”;

(c) by omitting from sub-section (1.) the word “it” (second occurring), and inserting in its stead the words” the Court”;

(d)by inserting in sub-section (2.), after the word “Court”, the words “or Conciliation Commissioner”; and

(e) by inserting in sub-section (2.), after the word “it”, the words “or him”.

Agreement to have effect of award.

14. Section twenty-four of the Principal Act is amended—

(a) by inserting after the word “Judge” (wherever occurring) the words “or a Conciliation Commissioner”; and

(b)by inserting after the word “Court” (wherever occurring) the words “or a Conciliation Commissioner”.

Court or Conciliation Commissioner to decide according to equity and good conscience.

15. Section twenty-five of the Principal Act is amended—

(a)by inserting after the word “Court”, the words “or Conciliation Commissioner”;

(b) by inserting after the word “its” the words “or his”; and

(c) by inserting after the word “it”, the words “or he”.

Uniformity in relation to hours, holidays, &c.

16. Section twenty-five a of the Principal Act is amended—

(a)by inserting after the word “Court” (wherever occurring), the words “or Conciliation Commissioner”; and

(b) by inserting after the word “its” the words “or his”.

Schemes of apprenticeship.

17. Section twenty-five c of the Principal Act is amended by inserting after the word “Court” the words “or Conciliation Commissioner”.

Economic effect of awards.

18. Section twenty-five d of the Principal Act is repealed.

Organization represented to be deemed party to dispute.

19. Section twenty-six of the Principal Act is amended by inserting after the word “Court”, the words “or a Conciliation Commissioner”.

Representation of parties at hearing.

20. Section twenty-seven of the Principal Act is amended by omitting the words “or by” and inserting in their stead the word “and”.

 

Form and continuance of award.

21. Section twenty-eight of the Principal Act is amended—

(a) by inserting in sub-section (1.), after the word “Court” (wherever occurring), the words “or the Conciliation Commissioner”;

(b)by inserting in sub-section (1.), after the word “subject” the words “to section thirty-one a of this Act and”;

(c) by omitting from sub-section (1.) the words “of the award” and inserting in their stead the words “upon which the award comes into force”;

(d)by inserting in sub-section (2.), after the word “Court” (first and second occurring), the words “or a Conciliation Commissioner”;

(e) by inserting in sub-section (2.), after the word “Court” (third occurring), the words “or the Conciliation Commissioner”;

(f) by inserting in sub-section (3.), after the word “Court” (first and last occurring), the words “or a Conciliation Commissioner”;

(g)by inserting in sub-section (3.), after the word “Court” (second occurring), the words “or Conciliation Commissioner”; and

(h)by omitting from sub-section (3.) the words “on the Court” (first occurring).

On whom award is to be binding.

22. Section twenty-nine of the Principal Act is amended by inserting after the word “Court” (wherever occurring), the words “or Conciliation Commissioner”.

Awards and orders to prevail over State awards and orders.

23. Section thirty of the Principal Act is amended by inserting after the word “Court”, the words “or a Conciliation Commissioner”.

Award not to be challenged or questioned.

24. Section thirty-one of the Principal Act is amended—

(a) by inserting in sub-section (1.) before the words “No award or order” the words “Except as in this Act provided,”;

(b)by inserting in sub-section (1.), after the word “Court” (first occurring), the words “or a Conciliation Commissioner”;

(c) by inserting in sub-section (1.) after the words “in any other Court” the words “other than the High Court”; and

(d) by adding at the end thereof the following sub-sections:—

“(4.) A Conciliation Commissioner or a Conciliation Committee or majority thereof may, if he or it thinks fit, in any proceeding before him or it, at any stage and upon such terms as he or it thinks fit, state a case in writing for the opinion of the Court upon any question of law arising in the proceeding, or any question which by reason of the provisions of section eighteen a or eighteen aa of this Act, may not be determined by a single Judge.

“(5.) Subject to this Act the Court shall hear and determine any question stated under the last preceding sub-section, and remit the case with its opinion to the Conciliation Commissioner or Conciliation Committee (as the case may be) and may make such order as to costs as it thinks fit.

 

“(6.) The Conciliation Commissioner, or the Conciliation Committee or a majority thereof (as the case may be) may thereupon make an award not inconsistent with the opinion of the Court, and any award so made shall have the effect of an award of the Court.”.

25. After section thirty-one of the Principal Act, the following section is inserted in Division 3 of Part III.:—

Appeals from awards or orders of Conciliation Commissioner or Conciliation Committee.

“31a.—(1.) An appeal shall lie to the Court constituted by the Chief Judge and not less than two other Judges against any provision in any award or order of a Conciliation Commissioner or a Conciliation Committee affecting.

(a) wages;

(b) hours;

(c) any condition of employment which in the opinion of the Court is likely to affect the public interest.

(2.) Any such appeal shall be made in the manner and within the time prescribed by the rules made in accordance with section forty-three of this Act.

(3.) On the hearing of an appeal under this section the Court may—

(a) take fresh evidence;

(b) confirm, quash or vary the award or order or part thereof which is under appeal;

(c) refer the award or order, or any part thereof, back to the Conciliation Commissioner or Conciliation Committee, as the case may be, for reconsideration, and with or without such directions or suggestions as the Court thinks fit; or

(d) make an award or order dealing with the matters under appeal:

Provided that no such award or order shall include any provision which would be outside the powers of the Conciliation Commissioner or Conciliation Committee, as the case may be.

(4.) An award or order of a Conciliation Commissioner or a Conciliation Committee shall not, except by consent of all the parties, have effect until after the expiration of twenty-one days from the making thereof.”.

26. Section thirty-three of the Principal Act is repealed, and the following section inserted in its stead:—

Reference of disputes in certain cases to Conciliation Committees.

“33. Notwithstanding anything contained in this Act, an industrial dispute or an application to vary an award shall not be dealt with by the Court or a Judge thereof, in pursuance of any power conferred upon the Court or Judge by this Act, in any case in which a Conciliation Committee has been appointed in pursuance of an application made under sub-section (2.) of the next succeeding section.”.

 

27. Section thirty-four of the Principal Act is repealed, and the following section inserted in its stead:—

Conciliation Committees.

“34.—(1.) In order to prevent or settle industrial disputes the Governor-General may appoint, for such period as he thinks proper, Conciliation Committees consisting of such number of persons as he thinks proper, and of a Chairman appointed by him in accordance with sub-section (4.) of this section.

(2.) An application for the appointment of a Conciliation Committee by the Governor-General may be made in the prescribed manner to the Industrial Registrar by any party to an industrial dispute.

(3.) A Conciliation Committee may be appointed in relation to industrial disputes in an industry, or in a branch or section of an industry defined by reference to locality or otherwise.

(4.) The Governor-General may appoint a Conciliation Commissioner as Chairman of any Conciliation Committee appointed under this section.

(5.) Of the members, other than the Chairman, one-half shall be representative of employers and one-half shall be representative of organizations of employees.

(6.) Before appointing the members representative of employers or of organizations of employees, the Governor-General may take into consideration any recommendations made by or on behalf of employers or organizations of employees in relation to such appointments.

(7.) The first meeting of a Conciliation Committee in relation to a particular dispute shall be summoned by the Chairman, and thereafter meetings shall be held at times agreed upon between the parties or, in default of agreement, fixed by the Chairman.

(8.) The Chairman shall not be present at or take part in any deliberations of a Conciliation Committee until or unless he is of opinion, or is informed by a representative of one or of each of the parties, that the representatives appear unlikely in his absence to come to an agreement upon all of the matters in dispute.

(9.) Thereafter the Chairman shall preside at all meetings of the Conciliation Committee.

(10.) If an agreement between all or any of the parties as to the whole or any part of the dispute is arrived at, the provisions of sub-section (1.) of section twenty-four of this Act shall apply to that agreement.

(11.) If the majority of the members comprising a Conciliation Committee agree upon the terms of a proposed award for the prevention or settlement of a dispute or part thereof, the provisions of sub-section (1.) of section twenty-four of this Act shall, subject to this section, apply to the agreement embodying those terms.

 

(12.) If the parties are unable to agree upon the terms of a proposed award for the prevention or settlement of a dispute or part thereof, and the views of the Chairman do not coincide with the views of either party, the Chairman may issue a summons directed to such persons or organizations as he thinks proper, calling upon them to show cause to him why an award should not be made in accordance with the terms which in his view should be inserted in an award, which terms shall be set forth in, or attached to, the summons.

(13.) Subject to this section a summons issued under the last preceding sub-section shall, as far as possible, be directed to, and served upon—

(a)where the matter in issue is in relation to an existing dispute which it is sought to settle—all the persons or organizations who or which are parties to the dispute; and

(b)where the matter in issue is in relation to a dispute which it is sought to prevent—all the persons or organizations who or which would, in the opinion of the Conciliation Commissioner, be parties to the dispute.

(14.) Where it appears to a Conciliation Committee or a majority thereof that there are numerous persons having the same interest in the subject-matter of any dispute (in this section referred to as ‘the interested persons’) which it is sought to settle or prevent, the Committee may recommend to the Chairman that an order be made appointing representatives (in this section referred to as the ‘representative respondents’) of the interested persons in relation to that subject-matter and specifying the names and addresses of those interested persons.

(15.) The Chairman may, upon receipt of a recommendation under the last preceding sub-section, make an order accordingly, and any order so made shall be published forthwith in the Gazette.

(16.) All plaints, summonses, orders or other documents served upon all the representative respondents appointed by an order under the last preceding sub-section shall be deemed to have been served upon all the interested persons specified in the order and the representative respondents shall, in the matter in relation to which they are appointed, represent all the interested persons so specified:

Provided that the making of an order under the last preceding sub-section shall not prevent any person from appearing separately, if he so desires, in any proceedings relating to the dispute.

(17.) Upon the return of any such summons, the Conciliation Commissioner may make such award (if any) as he thinks proper for the prevention or settlement of the dispute and the provisions of section twenty-nine of this Act shall apply to any award so made.

(18.) The foregoing provisions of this section shall apply in relation to applications to vary awards in like manner as they apply in relation to industrial disputes, as if the determination of such application were the settlement of industrial disputes.

 

(19.) Notwithstanding anything contained in the foregoing provisions of this section an agreement (not being an agreement under sub-section (10.) of this section) or award shall not be made in pursuance of this section in respect of any matter in respect of which by reason of the provisions of section eighteen a or eighteen aa of this Act a single Judge may not make an award.”

Power to appoint assessors.

28. Section thirty-five of the Principal Act is amended—

(a)by inserting after the word “Court” (first occurring), the words “or a Conciliation Commissioner”; and

(b)by inserting after the word “Court” (elsewhere occurring), the words “or Conciliation Commissioner”.

Powers of Court.

29. Section thirty-eight of the Principal Act is amended—

(a) by omitting from paragraph (c) the words “One thousand” (first occurring) and inserting in their stead the words “One hundred”;

(b) by omitting the proviso to paragraph (c); and

(c) by inserting after paragraph (o) the following paragraph:—

“(oa) to set aside an award or any of the terms of an award;”.

Power of amendment.

30. Section thirty-eight a of the Principal Act is amended—

(a) by inserting after the word “Court” the words “or a Conciliation Commissioner”;

(b)by omitting the word “it” (first occurring) and inserting in its stead the words “the Court”;

(c) by inserting after the word “it” (second occurring) the words “or he”; and

(d) by omitting the word “think” and inserting in its stead the word “thinks”.

Relief not limited to claim.

31. Section thirty-eight b of the Principal Act is amended—

(a) by inserting after the word “Court” (first occurring) the words “or a Conciliation Commissioner”; and

(b) by inserting after the word “Court” (second occurring) the words “or Commissioner”.

32. After section thirty-eight b of the Principal Act the following section is inserted:—

Notification to employer.

“38ba. The Court shall not include in any award or order a provision requiring a person claiming the benefit of that award to notify his employer that he is a member of an organization bound by the award.”.

Court to consider propriety of dealing with dispute.

33. Section thirty-eight c of the Principal Act is repealed.

Cancellation of award.

34. Section thirty-eight d of the Principal Act is amended by omitting from sub-section (1.) the words—

“(i) has done anything in the nature of a lock-out or strike; or

(ii)”.

 

Powers may be exercised by Court or Conciliation Commissioner on its or his own motion.

35. Section thirty-nine of the Principal Act is amended—

(a)by inserting after the word “Court” (first and second occurring), the words “or a Conciliation Commissioner”;

(b)by inserting after the word “its” (wherever occurring), the words “or his”; and

(c) by inserting after the word “Court” (last occurring), the words “or Conciliation Commissioner”.

Power to grant minimum wage and preference to members of organization.

36. Section forty of the Principal Act is amended—

(a)by omitting from sub-section (1.) the words “by its” and inserting in their stead the words “or a Conciliation Commissioner by its or his”;

(b) by inserting in paragraph (b) of sub-section (1.) after the word “Court”, the words “or Commissioner”;

(c) by inserting in sub-section (2.) after the word “Court” (first occurring), the words “or a Conciliation Commissioner”; and

(d)by inserting in sub-section (2.) after the word “Court”(second occurring), the words “or. Commissioner”.

Board of Reference.

37. Section forty a of the Principal Act is amended—

(a) by inserting after the word “Court” the words “or a Conciliation Commissioner”; and

(b) by inserting after the word “its” the words “or his”.

Imposition and recovery of penalties.

38. Section forty-four of the Principal Act is amended—

(a) by inserting in paragraph (a) of sub-section (1.), after the word “Court”, the words “or a Conciliation Commissioner”; and

(b) by inserting in paragraph (b) of that sub-section, after the word “Court”, the words “or a Conciliation Commissioner”.

Enforcement of penalties imposed by Court.

39.Section forty-six of the Principal Act is amended by omitting the words “made an order in a proceeding on any bond for securing the observance of any order or award or”.

Process against property of organization.

40. Section forty-seven of the Principal Act is repealed.

Powers to make orders to observe award.

41. Section forty-eight of the Principal Act is repealed.

Recovery of wages.

42. Section forty-nine a of the Principal Act is amended by omitting the word “six” and inserting in its stead the word “nine”.

Disability upon contravention of Part II. or wilful noncompliance with award.

43. Section fifty of the Principal Act is repealed.

Secret ballots.

44. Sections fifty-six a, fifty-six b, fifty-six c, fifty-six e and fifty-six f of the Principal Act are repealed.

 

Rules, &c., of organization not to prevent agreements.

45. Section fifty-eight b of the Principal Act is amended by omitting the words “and the officials of such organization”.

46. After section fifty-eight b of the Principal Act the following section is inserted:—

Incitement to boycott award forbidden.

“58ba. No officer of an organization, or member of any committee thereof, or servant or agent thereof, shall, during the currency of an award in the industry concerned, advise, encourage or incite any member of such organization to refrain from—

(a) entering into a written agreement, or

(b) accepting employment, or

(c) offering for work, or working,

in accordance with such award.

Penalty: Twenty pounds.”.

Application for cancellation of registration.

47. Section sixty of the Principal Act is amended—

(a) by omitting from paragraph (h) of sub-section (1.) the word “or”(last occurring); and

(b) by omitting from that sub-section paragraphs (i),(j),(k) and (l).

48. After section sixty of the Principal Act and before the heading “Proclaimed Organizations” the following section is inserted:—

Resignation from membership of organization.

“61. A member may resign his membership of any organization—

(a)if he accepts employment in an industry other than that represented by the organization; or

(b)on giving three months’ notice and the payment of all dues to the date of his resignation.”.

Application of Act to proclaimed organizations.

49. Sections sixty-two, sixty-three and sixty-four of the Principal Act are repealed.

Powers of organizations to recover fines, &c.

50. Section sixty-eight of the Principal Act is amended—

(a) by omitting the word “summary”, and inserting in its stead the word “competent”; and

(b) by adding at the end thereof the words “, as debts due to the organization”.

Repeal of sections 70a and 70b.

51. Sections seventy a and seventy b of the Principal Act are repealed.

Records to be kept by organization.

52. Section seventy-two of the Principal Act is amended—

(a) by inserting in paragraph (a) of sub-section (1.), after the word “and”, the words “, so far as known to the secretary of the organization or branch, their”;

 

(b) by omitting from sub-section (2.) the words “in the month of March in each year, or at such other” and inserting in their stead the words “once in each year, at such”;

(c) by inserting after the word “section” in sub-section (2.) the words “excepting the list of its members”;

(d)by omitting from sub-section (2.) all the words from and including the word “penalty” to the end of the sub-section; and

(e) by inserting after sub-section (3.) the following new sub-section:—

“(4.) The list of members of an organization shall be open to inspection at the office of the organization during the usual office hours by any person authorized by the Registrar.”.

Appointment of auditors of organisations.

53. Section seventy-two a of the Principal Act is amended—

(a) by omitting from sub-section (1.) the word “qualified” and inserting in its stead the word “competent”; and

(b) by omitting all the words from and including the word “Penalty”(first occurring) to the end of the section.

Contempt by witness.

54. Section eighty-four of the Principal Act is amended by inserting after the word “Court” (wherever occurring) the words “or a Conciliation Commissioner”.

Inspection of books, &c.

55. Section eighty-six of the Principal Act is amended—

(a)by inserting after the word “Court” (first occurring), the words “or a Conciliation Commissioner”; and

(b)by inserting after the word “Court” (elsewhere occurring), the words “or Commissioner”.

Boycott of persons, goods or premises.

56. Section eighty-six a of the Principal Act is repealed.

Penalties imposed by organizations upon workmen observing awards.

57. Section eighty-six b of the Principal Act is amended by omitting the words “Five hundred” and inserting in their stead the words “One hundred”.

Repeal of sections 86c, 86d and 87.

58. Sections eighty-six c, eighty-six d and eighty-seven of the Principal Act are repealed.

Jurisdiction of State Courts.

59. Section eighty-nine of the Principal Act is amended by omitting the word “summary” (wherever occurring) and inserting in its stead the word “competent”.

Court may impose penalties for certain offence

60.