Commonwealth Powers (Industrial Relations) Act 1996 (Vic)
Version No. 005
Commonwealth Powers (Industrial Relations) Act 1996
No. 59 of 1996
Version incorporating amendments as at 7 December 2007
TABLE OF PROVISIONS
Section Page
PART 1—PRELIMINARY
1Purpose
2Commencement
3Definitions
PART 2—REFERENCE OF MATTERS
4Reference
4AFurther reference—common rules
5Matters excluded from a reference
6Termination of reference
7Supreme Court—limitation of jurisdiction
8Expiry of Act
PART 3—EMPLOYEE RELATIONS ACT 1992
9Amendment
PART 4—CONSEQUENTIAL AMENDMENTS AND TRANSITIONAL PROVISIONS
10Amendment of certain Acts
11Transitional provisions
PART 5—ANNUAL LEAVE PAYMENTS ACT 1992
12Repeal
PART 6—VOCATIONAL EDUCATION AND TRAINING ACT 1990
13New Part 7A inserted in Vocational Education and Training Act 1990
PART 7A—MINIMUM TERMS AND CONDITIONS
91ABRates of pay
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SCHEDULES
SCHEDULE 1—Amendment of Employee Relations Act 1992
1Title
2New section 1 substituted
1Purpose
3Repeal of section 3
4Amendment of definitions
5Repeal of section 5
6Amendment of section 7
7Repeal of certain provisions
8Long service leave
9Repeal of Parts relating to ERCV
10Inspectors
11Judicial notice of signatures
12Repeal of sections 156, 157 and 162
13Amendment of section 160
14Repeal of sections 163, 165, 166 and 167
15Amendment of section 168
16Regulations
17Further repeals
SCHEDULE 2—Consequential Amendments
1Adult, Community and Further Education Act 1991
2Appeal Costs Act 1964
3BLF (De-recognition) Act 1985
4Construction Industry Long Service Leave Act 1983
5Country Fire Authority Act 1958
6Education Act 1958
7Food Act 1984
8Fundraising Appeals Act 1984
9Health Services (Conciliation and Review) Act 1987
10Intellectually Disabled Persons' Services Act 1986
11Juries Act 1967
12Legal Practice Act 1996
13Market Court Act 1978
14Mental Health Act 1986
15Metropolitan Fire Brigades Act 1958
16Occupational Health and Safety Act 1985
17Parliamentary Officers Act 1975
18Police Regulation Act 1958
19Pre-School Teachers and Assistants (Leave) Act 1984
20Public Sector Management Act 1992
21Teaching Service Act 1981
22Trade Unions Act 1958
23Transport Act 1983
24Vocational Education and Training Act 1990
25Vocational Education and Training (College Employment) Act 1993
SCHEDULE 3—Transitional Provisions
1Definitions
2Abolition of Commission
3Proceedings
4Pending proceedings under former Act
5New proceedings under former Act
6References to employment agreements
7References to recognised associations
8References to Employee Relations Act 1992
9Savings and transitional regulations
10Interpretation of Legislation Act 1984
═══════════════
ENDNOTES
1. General Information
2. Table of Amendments
3. Explanatory Details
Version No. 005
Commonwealth Powers (Industrial Relations) Act 1996
No. 59 of 1996
Version incorporating amendments as at 7 December 2007
The Parliament of Victoria enacts as follows:
PART 1—PRELIMINARY
1Purpose
The purpose of this Act is—
(a)to refer to the Parliament of the Commonwealth certain matters relating to industrial relations;
(b)to amend the Employee Relations Act 1992;
(c)to repeal the Annual Leave Payments Act 1992;
(d)to make certain consequential amendments to certain Acts.
2Commencement
(1)This Part and Part 5 come into operation on the day on which this Act receives the Royal Assent.
(2)The remaining provisions of this Act come into operation on a day or days to be proclaimed.
(3)A proclamation must not be made under subsection (2) (other than a second or subsequent proclamation) unless the proclamation includes a statement that the Governor in Council is satisfied that a Bill has been introduced into the Senate or House of Representatives of the Parliament of the Commonwealth containing provisions about matters to be referred to that Parliament by this Act.
3Definitions
In this Act—
employee includes a law enforcement officer but does not include a person engaged under a contract for services;
employer includes a person employing an employee, including the Crown and a public body and, in relation to a person who is a law enforcement officer, means the person nominated by the Governor in Council as the employer of that person;
industry includes—
(a)any business, trade, manufacture, undertaking or calling of employers; and
(b)any calling, service, employment, handicraft, industrial occupation or vocation of employees; and
(c)a branch of an industry and a group of industries;
law enforcement officer means a member of the police force, a police reservist, a police recruit or a protective services officer;
the Commonwealth Act means—
(a)the Industrial Relations Act 1988 of the Commonwealth; or
(b)if Schedule 20 to the Workplace Relations and Other Legislation Amendment Act 1996 of the Commonwealth is in force, the Workplace Relations Act 1996 of the Commonwealth;
public sector means the public service of Victoria or the service of the State or of a statutory authority or of a State owned enterprise within the meaning of the State Owned Enterprises Act 1992.
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PART 2—REFERENCE OF MATTERS
4Reference
(1)A matter referred to the Parliament of the Commonwealth by a subsection of this section is so referred subject to the Commonwealth of Australia Constitution Act and pursuant to section 51(xxxvii) of that Act.
(2)The matter of conciliation and arbitration for the prevention and settlement of industrial disputes within the limits of the State, to the extent to which it is not otherwise included in the legislative powers of the Commonwealth, is referred to the Parliament of the Commonwealth for a period commencing on the day on which this subsection commences and ending on the day fixed under or by section 6 as the day on which the reference of that matter under this Act terminates but no longer.
(3)The matter of agreements about matters pertaining to the relationship between an employer or employers in the State and an employee or employees in the State, to the extent to which it is not otherwise included in the legislative powers of the Commonwealth, is referred to the Parliament of the Commonwealth for a period commencing on the day on which this subsection commences and ending on the day fixed under or by section 6 as the day on which the reference of that matter under this Act terminates but no longer.
(4)The matter of minimum terms and conditions of employment for employees in the State, to the extent to which it is not otherwise included in the legislative powers of the Commonwealth, is referred to the Parliament of the Commonwealth for a period commencing on the day on which this subsection commences and ending on the day fixed under or by section 6 as the day on which the reference of that matter under this Act terminates but no longer.
(5)The matter of termination, or proposed termination, of the employment of an employee, other than a law enforcement officer, to the extent to which it is not otherwise included in the legislative powers of the Commonwealth, is referred to the Parliament of the Commonwealth for a period commencing on the day on which this subsection commences and ending on the day fixed under or by section 6 as the day on which the reference of that matter under this Act terminates but no longer.
(6)The matter of freedom of association, namely the rights of employees, employers and independent contractors in the State to join an industrial association of their choice, or not to join such an association, to the extent to which it is not otherwise included in the legislative powers of the Commonwealth, is referred to the Parliament of the Commonwealth for a period commencing on the day on which this subsection commences and ending on the day fixed under or by section 6 as the day on which the reference of that matter under this Act terminates but no longer.
(7)The matter of the setting and adjusting of minimum wages for employees in the State within a work classification that, immediately before the commencement of this subsection is a declared work classification under the Employee Relations Act 1992, or has been declared, by the Commission within the meaning of that Act, to be an interim work classification, who are not subject to an award or agreement under the Commonwealth Act, to the extent to which that matter is not otherwise included in the legislative powers of the Commonwealth, is referred to the Parliament of the Commonwealth for a period commencing on the day on which this subsection commences and ending on the day fixed under or by section 6 as the day on which the reference of that matter under this Act terminates but no longer.
(8)The matter of attempting to settle, conciliate or arbitrate, or exercising any other power in relation to, an industrial matter or industrial dispute, being an industrial matter or industrial dispute that arose before the commencement of Part 3 and in relation to which the Employee Relations Commission of Victoria exercised, or could have exercised, powers (other than an industrial matter or industrial dispute in respect of which that Commission in Full Session had made a decision before that commencement), to the extent to which it is not otherwise included in the legislative powers of the Commonwealth, is referred to the Commonwealth for a period commencing on the day on which this subsection commences and ending on the day fixed under or by section 6 as the day on which the reference of that matter under this Act terminates but no longer.
4AFurther reference—common rules
(1)The matter of the making of an award or order as, or declaring any term of an award or order to be, a common rule in the State for an industry, but so as not to exclude or limit the concurrent operation of any law of the State, to the extent to which it is not otherwise included in the legislative powers of the Commonwealth, is referred to the Parliament of the Commonwealth for a period commencing on the day on which section 52 of the Federal Awards (Uniform System) Act 2003 commences and ending on the day fixed under subsection (2) as the day on which the reference of that matter under this Act terminates but no longer.
(2)The Governor in Council, by proclamation published in the Government Gazette, may fix a day as the day on which the reference under subsection (1) terminates.
(3)The matter referred to the Parliament of the Commonwealth by subsection (1) is so referred subject to the Commonwealth of Australia Constitution Act and pursuant to section 51(xxxvii) of that Act.
5Matters excluded from a reference
(1)A matter referred by a subsection of section 4 or 4A does not include—
(a)matters pertaining to the number, identity, appointment (other than terms and conditions of appointment) or discipline (other than matters pertaining to the termination of employment) of employees, other than law enforcement officers, in the public sector;
(b)matters pertaining to the number, identity, appointment (other than matters pertaining to terms and conditions of appointment not referred to in this paragraph), probation, promotion, transfer from place to place or position to position, physical or mental fitness, uniform, equipment, discipline or termination of employment of law enforcement officers;
(c)matters pertaining to the number or identity of employees in the public sector dismissed or to be dismissed on grounds of redundancy;
(d)matters pertaining to the following subject matters—
(i)workers' compensation;
(ii)superannuation;
(iii)occupational health and safety;
(iv)apprenticeship;
(v)long service leave;
(vi)days to be observed as public holidays;
(vii)equal opportunity—
but not so as to prevent the inclusion in awards or agreements made under the Commonwealth Act of provisions in relation to those matters to the extent to which the Commonwealth Act, as enacted as at 30 November 1996 (whether or not in force), allows such awards or agreements to include such provisions;
* * * * *
(f)matters pertaining to Ministers, members of the Parliament, judicial officers or members of administrative tribunals;
(g)matters pertaining to persons holding office in the public sector to which the right to appoint is vested in the Governor in Council or a Minister;
(h)matters pertaining to persons holding senior executive offices in the service of a Department within the meaning of the Public Sector Management Act 1992;
(i)matters pertaining to persons employed at the higher managerial levels in the public sector;
(j)matters pertaining to persons employed as ministerial assistants or ministerial advisers in the service of Ministers;
(k)matters pertaining to persons holding office as Parliamentary officers;
(l)matters pertaining to the transfer or redundancy of employees of a body as a result of a restructure by an Act;
(m)matters pertaining to the duties of employees if a situation of emergency is declared by or under an Act or an industry or project is, by or under an Act, declared to be a vital industry or vital project and whose work is directly affected by that declaration.
(n)matters that would allow or require a public sector employer within the meaning of the Public Sector Employment (Award Entitlements) Act 2006 to provide a term or condition of employment in breach of section 10 of that Act or to offer, accept, make or lodge with the Employment Advocate a workplace agreement that does not pass the fairness test within the meaning of that Act;
(o)matters that would allow or require a public sector employer within the meaning of the Public Sector Employment (Award Entitlements) Act 2006 to offer an employee within the meaning of that Act, or to accept an offer from an employee of, a statutory industrial agreement within the meaning of that Act that provides any terms or conditions of employment that are materially different from the terms and conditions of employment that would otherwise apply to the employee in employment with the employer under a collective agreement or that would apply to the employee under the terms of a relevant award or a designated preserved award.
(2)Insofar as a matter specified in subsection (1) of this section does not fall within the terms of a subsection of section 4 or 4A, subsection (1) of this section must be taken to have been enacted for the avoidance of doubt.
6Termination of reference
(1)The Governor in Council, by proclamation published in the Government Gazette, may fix a day as the day on which the reference under a subsection of section 4 terminates.
(2)The references under this Act terminate on 1 July 1997 unless, before that date, the Governor in Council has, by Order published in the Government Gazette, declared that an agreement has been entered into between the Minister administering the Commonwealth Act and the Minister administering this Act about the matters referred by this Act to the Parliament of the Commonwealth.
7Supreme Court—limitation of jurisdiction
It is the intention of item 4.10(a) of Schedule 2 to alter or vary section 85 of the Constitution Act 1975.
8Expiry of Act
This Act expires on 1 July 1997 unless, before that date, a proclamation has been made under section 2(2).
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PART 3—EMPLOYEE RELATIONS ACT 1992
9Amendment
The Employee Relations Act 1992 is amended as set out in Schedule 1.
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PART 4—CONSEQUENTIAL AMENDMENTS AND TRANSITIONAL PROVISIONS
10Amendment of certain Acts
An Act specified in the heading to an item in Schedule 2 is amended as set out in that item.
11Transitional provisions
Schedule 3 contains transitional provisions.
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PART 5—ANNUAL LEAVE PAYMENTS ACT 1992
12Repeal
(1)The Annual Leave Payments Act 1992 is repealed.
(2)Subsection (1) does not revive anything in any determination or contract made before the commencement of the Annual Leave Payments Act 1992 that, by reason of that Act, had no force or effect.
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PART 6—VOCATIONAL EDUCATION AND TRAINING ACT 1990
13New Part 7A inserted in Vocational Education and Training Act 1990
After Part 7 of the Vocational Education and Training Act 1990 insert—
"PART 7A—MINIMUM TERMS AND CONDITIONS
91ABRates of pay
(1)An employer must pay a student the relevant minimum rate of pay that would be applicable under paragraph 1(c) of Schedule 1A to the Workplace Relations Act 1996 of the Commonwealth if the student were an employee within the meaning of Part XV of that Act.
(2)Subsection (1) does not apply in respect of a student—
(a)holding a certificate of exemption under this section; or
(b)to whom an exemption order under this section applies.
(3)The Secretary to the Department of Education may give a student a certificate of exemption if the Secretary is satisfied that the student—
(a)is undertaking a post-secondary education course; and
(b)is required to work during those studies for the purpose of gaining knowledge and skill which relates to those studies.
(4)The Secretary to the Department of Education may impose conditions on a certificate of exemption.
(5)The student and any employer must comply with any condition imposed under subsection (4).
Penalty:10 penalty units.
(6)The Secretary to the Department of Education may make an exemption order in relation to any class of students if the Secretary is satisfied that the students—
(a)are undertaking a post-secondary education course; and
(b)are required to work to satisfy the practical training and experience requirements of the course.
(7)The exemption order may—
(a)in the case of any students, provide that the students are not required to be paid for the work; and
(b)in the case of students required to work more than 240 hours as part of a course requirement, specify the appropriate rate of pay which may be less than the minimum rate of pay that would be the applicable rate of pay referred to in subsection (1).
(8)A certificate of exemption in force under section 16 of the Employee Relations Act 1992, as in force immediately before its repeal, or an exemption order in force under section 16A of that Act, continues in force for the purposes of this section as if it had been given or made, as the case requires, under this section.".
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SCHEDULES
SCHEDULE 1
AMENDMENT OF EMPLOYEE RELATIONS ACT 1992
1Title
In the title, for "Employee Relations" substitute "Long Service Leave".
2New section 1 substituted
For section 1 substitute—
"1 Purpose
The purpose of this Act is to make provision with respect to the long service leave entitlements of certain employees.".
3Repeal of section 3
Section 3 is repealed.
4Amendment of definitions
In section 4—
(a)the definition of business day is repealed;
(b)the definitions of Chief Commission Administration Officer, Commission, employee and employer are repealed;
(c)the definitions of Federal Commission, industrial action, industrial authority, industrial dispute and industrial matter are repealed;
(d)the definition of industry is repealed;
(e)the definitions of panel, President, public body and recognised association are repealed;
(f)the definitions of registered medical practitioner, shop, trade union and workplace are repealed.
5Repeal of section 5
Section 5 is repealed.
6Amendment of section 7
In section 7, subsection (2) is repealed.
7Repeal of certain provisions
(1)Parts 2, 3 and 4 are repealed.
(2)In Part 5, Divisions 1 to 5 are repealed.
8Long service leave
In Division 6 of Part 5—
(a)in section 61(1) and (2), for "Commission" substitute "Industrial Division of the Magistrates' Court";
(b)in section 65(1)(b), (2), (3), (4) and (5), for "Commission" substitute "Industrial Division of the Magistrates' Court";
(c)in section 66(3) and (4), for "Commission" substitute "Industrial Division of the Magistrates' Court";
(d)sections 76 and 77 are repealed;
(e)in section 80(1)—
(i)for "Chief Commission Administration Officer" substitute "Chief Administrator";
(ii)for "the Commission" substitute "him or her".
9Repeal of Parts relating to ERCV
Parts 6, 7, 8, 9, 10, 11, 12 and 13 are repealed.
10Inspectors
(1)Part 14 is repealed.
(2)In section 154(5), paragraph (b) is repealed.
11Judicial notice of signatures
In section 155(a)—
(a)omit "the President, a Deputy President, a Commissioner,";
(b)for ", an officer to whom section 154(1)(c) applies, the Chief Commission Administration Officer or an inspector" substitute "or an officer to whom section 154(1)(c) applies".
12Repeal of sections 156, 157 and 162
Sections 156, 157 and 162 are repealed.
13Amendment of section 160
Section 160(3) is repealed.
14Repeal of sections 163, 165, 166 and 167
Sections 163, 165, 166 and 167 are repealed.
15Amendment of section 168
In section 168—
(a)in paragraph (a), omit "19(1), 37(1) or";
(b)paragraphs (b) and (c) are repealed.
16Regulations
In section 169(1), paragraphs (c), (e) and (ea) are repealed.
17Further repeals
(1)Part 18 is repealed.
(2)Schedules 1 to 6 are repealed.
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SCHEDULE 2
CONSEQUENTIAL AMENDMENTS
1Adult, Community and Further Education Act 1991
Section 44 is repealed.
2Appeal Costs Act 1964
Section 13(4) is repealed.
3BLF (De-recognition) Act 1985
3.1In section 3—
(a)the definitions of Chief Commission Administration Officer and Commission are repealed;
(b)in the definition of Commonwealth Act, for "Industrial Relations Act 1988" substitute "Workplace Relations Act 1996".
3.2In section 6(2)—
(a)omit "the Employee Relations Act 1992 or";
(b)paragraphs (a), (b), (g), (h) and (i) are repealed.
3.3Section 6(3) is repealed.
4Construction Industry Long Service Leave Act 1983
4.1In section 3—
(a)in paragraph (a) of the definition of award, for "under" substitute "entered into under Part 2 of";
(b)the definition of Employee Relations Commission is repealed.
4.2In section 30A(1) and (2), for "Employee Relations Commission" substitute "Industrial Division of the Magistrates' Court".
4.3In section 30A(3) and (4), for "Commission" substitute "Court".
4.4In section 30A, subsections (5) and (7) are repealed.
4.5In section 30A(6), omit "a copy or certificate of which has been filed with the principal registrar of the Magistrates' Court".
4.6In section 32(6) and (7), for "Employee Relations Commission" substitute "Industrial Division of the Magistrates' Court".
4.7Section 75 is repealed.
4.8In section 76(10), for "Employee Relations Commission" substitute "Industrial Division of the Magistrates' Court".
4.9In section 78(1), (2) and (3), for "Employee Relations Commission" substitute "Industrial Division of the Magistrates' Court".
4.10In section 79—
(a)in subsection (1), for "Employee Relations Commission" substitute "Industrial Division of the Magistrates' Court";
(b)subsections (2) and (3) are repealed.
5Country Fire Authority Act 1958
In section 18(1) and (2), after "or under" insert "Part 2 of".
6Education Act 1958
In the definition of law in section 64L, after "under" insert "Part 2 of".
7Food Act 1984
In section 60(2)(i), for "Part 2 of the Employee Relations Act 1992" substitute "the Long Service Leave Act 1992".
8Fundraising Appeals Act 1984
In section 6(1), for paragraphs (g) and (h) substitute—
"(g)an organisation registered under the Workplace Relations Act 1996 of the Commonwealth;".
9Health Services (Conciliation and Review) Act 1987
In the definition of Industrial Tribunal in section 3, paragraph (b) is repealed.
10Intellectually Disabled Persons' Services Act 1986
In section 67(2), omit "or the Employee Relations Act 1992".
11Juries Act 1967
In section 50(4A)—
(a)for "the Employee Relations Act 1992 or in any employment agreement under that Act" substitute "any employment agreement entered into under Part 2 of the Employee Relations Act 1992";
(b)for "that Act" (where secondly occurring) substitute "section 4(1) of the Workplace Relations Act 1996 of the Commonwealth".
12Legal Practice Act 1996
In section 315(1)(a), after "1992" insert "or an AWA or certified agreement within the meaning of the Workplace Relations Act 1996 of the Commonwealth".
13Market Court Act 1978
In section 4(4A) and (6), paragraph (b) is repealed.
14Mental Health Act 1986
In section 97(2), omit "or the Employee Relations Act 1992".
15Metropolitan Fire Brigades Act 1958
15.1In sections 33A(1) and 34(1)(ca), for "under the" substitute "under any employment agreement entered into under Part 2 of the".
15.2In section 33A(2), after "or under" insert "Part 2 of".
15.3In section 85—
(a)for the expression beginning "The powers" and ending "; and any" substitute "Any";
(b)for "Commission" (wherever occurring) substitute "Employee Relations Commission of Victoria";
(c)after "with respect to long service leave" insert "of officers and members of the Metropolitan Fire Brigade or of officers, servants or employees of the Board".
16Occupational Health and Safety Act 1985
16.1In section 4, the definition of Employee Relations Commission is repealed.
16.2In section 26(7), for "Employee Relations Commission" substitute "Industrial Division of the Magistrates' Court";
16.3In section 32—
(a)in subsection (3), for "Employee Relations Commission" substitute "Industrial Division of the Magistrates' Court";
(b)subsection (4) is repealed.
16.4In section 36—
(a)in subsection (1), for "Full Session of the Employee Relations Commission" substitute "Industrial Division of the Magistrates' Court";
(b)in subsections (2) and (3), for "Employee Relations Commission" substitute "Industrial Division of the Magistrates' Court".
16.5In section 40(5), for "Employee Relations Commission" substitute "Industrial Division of the Magistrates' Court".
16.6In section 46—
(a)in subsections (1), (2), (3) and (4)(a), for "Full Session of the Employee Relations Commission" substitute "Industrial Division of the Magistrates' Court";
(b)in subsection (3)(b), for "a Commissioner of the Employee Relations Commission assigned for that purpose by the President thereof" substitute "the Industrial Division of the Magistrates' Court".
17Parliamentary Officers Act 1975
17.1In section 12B, subsections (1), (2), (3) and (5) are repealed.
17.2In section 12C, subsections (1) and (2) are repealed.
18Police Regulation Act 1958
Division 1 of Part IV is repealed.
19Pre-School Teachers and Assistants (Leave) Act 1984
19.1In paragraph (b) of the definition of award in section 3, for "made under the Industrial Relations Act 1988" substitute "or agreement under the Workplace Relations Act 1996".
19.2In sections 4(1)(b), 4(2)(b) and 5(d), for "Employee Relations" substitute "Long Service Leave".
20Public Sector Management Act 1992
20.1In section 3(a), for Employee Relations Act 1992" substitute "Workplace Relations Act 1996 of the Commonwealth".
20.2In section 25, subsections (1) and (2) are repealed.
20.3In section 41(1)(b), for "under the Employee Relations Act 1992" substitute "entered into under Part 2 of the Employee Relations Act 1992 or AWA or certified agreement under the Workplace Relations Act 1996 of the Commonwealth".
20.4In section 82, for "under the Employee Relations Act 1992" substitute "entered into under Part 2 of the Employee Relations Act 1992 or AWA or certified agreement under the Workplace Relations Act 1996 of the Commonwealth".
20.5In section 83—
(a)subsections (1) to (4) are repealed;
(b)in subsection (5)—
(i)after "1992" (where first occurring) insert "as continued in effect by the Workplace Relations Act 1996 of the Commonwealth";
(ii)omit the expression beginning "and, in determining" and ending at the end of the subsection.
20.6In section 104(2), omit ", the Employee Relations Act 1992".
21Teaching Service Act 1981
21.1In section 2—
(a)the definition of Employee Relations Commission is repealed;
(b)in the definition of industrial association of employees for "association of employees or a group of associations of employees recognised under Part 12 of the Employee Relations Act 1992" substitute "organisation of employees registered under the Workplace Relations Act 1996 of the Commonwealth.
21.2Section 15 is repealed.
21.3In section 18(1), omit "the Employee Relations Act 1992 and".
21.4In section 21—
(a)subsections (1) and (3) are repealed;
(b)in subsection (2), for "made or entered into under" substitute "entered into under Part 2 of".
22Trade Unions Act 1958
In section 3(2), for "Chief Commission Administration Officer of the Employee Relations Commission under the Employee Relations Act 1992" substitute "Head of the Department for which the Minister is responsible".
23Transport Act 1983
In section 83(2), after "made under" insert "Part 2 of".
24Vocational Education and Training Act 1990
24.1In section 34A(3), omit "the Employee Relations Act 1992 and".
24.2Section 53A(4) is repealed.
24.3In section 57(2), for "the Employee Relations Act 1992 or an employment agreement or contract of employment referred to in that Act" substitute "any employment agreement or any other contract of employment".
24.4In section 63(4), for "described in section 14(4)(b) or 25(1)(b) of the Employee Relations Act 1992 or the deduction of payment in accordance with item 1 of Schedule 5 to that Act" substitute "of the contract of training for the standing-down of trainees who cannot be usefully employed because of any strike, breakdown of machinery or any stoppage of work for any cause for which the employer cannot reasonably be held responsible or the deduction of payment for any part of a day during which a trainee is so stood-down".
24.5In section 93(1), omit "or the Employee Relations Act 1992".
24.6In Schedule 2, clauses 1 and 3 are repealed.
24.7In clause 5(4) of Schedule 3, for "the Employee Relations Act 1992 or any other" substitute "any".
25Vocational Education and Training (College Employment) Act 1993
Section 19(5) is repealed.
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SCHEDULE 3
TRANSITIONAL PROVISIONS
1Definitions
In this Schedule—
commencement day means the day on which section 11 comes into operation;
former Act means the Employee Relations Act 1992 as in force immediately before the commencement day;
former Commission means the Employee Relations Commission of Victoria established by section 82 of the Employee Relations Act 1992.
2Abolition of Commission
(1)The Employee Relations Commission of Victoria established by section 82 of the Employee Relations Act 1992 is abolished and the members of that Commission go out of office.
(2)The Commission Administration Office established by section 88 of the Employee Relations Act 1992 is abolished and the Chief Commission Administration Officer goes out of office.
3Proceedings
(1)In this clause, relevant proceeding means a proceeding under an Act other than the former Act (except under Division 1 of Part 5 of that Act)—
(a)begun before the former Commission before the commencement day and which had not been completed at that day; and
(b)that could have been brought before the Industrial Division of the Magistrates' Court or, in the case of an application under Division 1 of Part 5 of the former Act, the Australian Industrial Relations Commission if it had been begun on or after the commencement day.
(2)If before the commencement day the former Commission had begun to hear any relevant proceeding and at that day evidence on any question of fact material to that proceeding had been given to the former Commission but the proceeding had not been finally determined, any party to the proceeding may apply in writing to the Industrial Division of the Magistrates' Court for a determination under subclause (3).
(3)On an application under subclause (2), the Industrial Division of the Magistrates' Court may determine—
(a)to accept the proceeding as part-heard and to continue the hearing; or
(b)to re-hear the proceeding—
in accordance with the Act under which it is brought.
(4)If a relevant proceeding is continued to be heard, or is re-heard, by the Industrial Division of the Magistrates' Court in accordance with a determination under subclause (3), anything done in relation to that proceeding before the commencement day shall, so far as consistent with the Act under which it is brought, be taken to have been done for the purposes of the hearing and determination of the proceeding by the Magistrates' Court and the Court may, for the purposes of the hearing or re-hearing, have regard to any record of the earlier proceeding before the former Commission.
(5)If before the commencement day a relevant proceeding was pending before the former Commission but the former Commission had not begun to hear it or had begun to hear it but at the commencement day had not been given evidence on any question of fact material to it, the proceeding is to be heard and determined by the Industrial Division of the Magistrates' Court or, in the case of an application under Division 1 of Part 5 of the former Act, the Australian Industrial Relations Commission in accordance with the Act under which it is brought and anything done in relation to that proceeding must, so far as consistent with that Act, be taken to have been done for the purposes of the hearing and determination of the proceeding by the Magistrates' Court or the Australian Industrial Relations Commission, as the case requires.
(6)If any difficulty arises in any particular matter because of the operation of this clause, the Chief Magistrate or the President of the Australian Industrial Relations Commission, as the case requires, may make any order that he or she considers appropriate to resolve the difficulty.
(7)The Chief Magistrate or the President of the Australian Industrial Relations Commission may make an order under subclause (6) on the application of a party to the matter, or on the Chief Magistrate's or the President's own initiative.
(8)An order under subclause (6) has effect despite anything to the contrary in the former Act or in the Act under which the matter arises.
4Pending proceedings under former Act
(1)In this clause, relevant proceeding means a proceeding under the former Act except under Division 1 of Part 5 of that Act—
(a)begun before the former Commission before the commencement day and which had not been completed at that day; and
(b)that could have been brought before the Australian Industrial Relations Commission if it had been begun on or after the commencement day; and
(c)with respect to the hearing and determination of which provision is not made on the commencement day by the Commonwealth Act or the Workplace Relations and Other Legislation Amendment Act (No. 2) 1996 of the Commonwealth.
(2)If before the commencement day the former Commission had begun to hear any relevant proceeding and at that day evidence on any question of fact material to that proceeding had been given to the former Commission but the proceeding had not been finally determined, any party to the proceeding may apply in writing to the Industrial Division of the Magistrates' Court for a determination under subclause (3).
(3)On an application under subclause (2), the Industrial Division of the Magistrates' Court may determine—
(a)to accept the proceeding as part-heard and to continue the hearing; or
(b)to re-hear the proceeding—
in accordance with the former Act.
(4)If a relevant proceeding is continued to be heard, or is re‑heard, by the Industrial Division of the Magistrates' Court in accordance with a determination under subclause (3), anything done in relation to that proceeding before the commencement day shall, so far as consistent with the former Act, be taken to have been done for the purposes of the hearing and determination of the proceeding by the Magistrates' Court and the Court may, for the purposes of the hearing or re‑hearing, have regard to any record of the earlier proceeding before the former Commission.
(5)If before the commencement day a relevant proceeding was pending before the former Commission but the former Commission had not begun to hear it or had begun to hear it but at the commencement day had not been given evidence on any question of fact material to it, the proceeding is to be heard and determined by the Industrial Division of the Magistrates' Court in accordance with the former Act and anything done in relation to that proceeding must, so far as consistent with that Act, be taken to have been done for the purposes of the hearing and determination of the proceeding by the Magistrates' Court.
(6)If any difficulty arises in any particular matter because of the operation of this clause, the Chief Magistrate may make any order that he or she considers appropriate to resolve the difficulty.
(7)The Chief Magistrate may make an order under subclause (6) on the application of a party to the matter, or on the Chief Magistrate's own initiative.
(8)An order under subclause (6) has effect despite anything to the contrary in the former Act.
5New proceedings under former Act
(1)In this clause, relevant proceeding means a proceeding under the former Act except under Division 1 of Part 3 or Division 6 of Part 5—
(a)that was not brought before the former Commission before the commencement day; and
(b)that could have been brought before the former Commission before the commencement day; and
(c)with respect to the hearing and determination of which provision is not made on the commencement day by the Commonwealth Act or the Workplace Relations and Other Legislation Amendment Act (No. 2) 1996 of the Commonwealth.
(2)A relevant proceeding may be brought before the Industrial Division of the Magistrates' Court in accordance with the former Act and the Industrial Division may hear and determine the proceeding in accordance with that Act and, for this purpose, that Act has effect as if a reference in it to the former Commission were a reference to the Industrial Division.
(3)If any difficulty arises in any particular matter because of the operation of this clause, the Chief Magistrate may make any order that he or she considers appropriate to resolve the difficulty.
(4)The Chief Magistrate may make an order under subclause (3) on the application of a party to the matter, or on the Chief Magistrate's own initiative.
(5)An order under subclause (3) has effect despite anything to the contrary in the former Act.
6References to employment agreements
A reference in any Act or subordinate instrument within the meaning of the Interpretation of Legislation Act 1984 to an employment agreement within the meaning of the Employee Relations Act 1992 must be taken to be a reference to an employment agreement within the meaning of that Act as in force immediately before the repeal of Part 2 of that Act.
7References to recognised associations
A reference in any Act or subordinate instrument within the meaning of the Interpretation of Legislation Act 1984 to a recognised association within the meaning of the Employee Relations Act 1992 must be taken to be a reference to an organisation registered under the Workplace Relations Act 1996 of the Commonwealth.
8References to Employee Relations Act 1992
(1)A reference in any Act or subordinate instrument within the meaning of the Interpretation of Legislation Act 1984 to a provision of the Employee Relations Act 1992 that is repealed by Schedule 1 to this Act must be taken, unless the contrary intention appears, to be a reference to that provision of the former Act.
(2)A reference in any Act or subordinate instrument within the meaning of the Interpretation of Legislation Act 1984 to a provision of the Employee Relations Act 1992 that is not repealed by Schedule 1 to this Act must be taken, unless the contrary intention appears, to be a reference to that provision of the Long Service Leave Act 1992.
9Savings and transitional regulations
(1)The Governor in Council may make regulations that contain provisions of a savings and transitional nature consequent on—
(a)the enactment of this Act; or
(b)the enactment by the Parliament of the Commonwealth of an Act consequent on the enactment of this Act.
(2)A provision mentioned in subclause (1) may be retrospective in operation.
(3)Regulations under this clause have effect despite anything to the contrary in any Act other than this Act or in any instrument made under an Act.
10Interpretation of Legislation Act 1984
This Schedule does not affect or take away from the Interpretation of Legislation Act 1984.
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ENDNOTES
1. General Information
Minister's second reading speech—
Legislative Assembly: 19 November 1996
Legislative Council: 3 December 1996
The long title for the Bill for this Act was "to refer to the Parliament of the Commonwealth certain matters relating to industrial relations and for other purposes. "
Constitution Act 1975
Section 85(5) statement:
Legislative Assembly: 19 November 1996
Legislative Council: 3 December 1996
Absolute Majorities:
Legislative Assembly: 21 November 1996 and 6 December 1996
Legislative Council: 4 and 5 December 1996
The Commonwealth Powers (Industrial Relations) Act 1996 was assented to on 12 December 1996 and came into operation as follows:
Parts 1 and 5 on 12 December 1996: s. 2(1);
Part 2 on 17 December 1996: Special Gazette (No. 142) 17 December 1996 page 1;
Parts 3, 4 and 6 and Schedules 1 to 3 on 1 January 1997: Special Gazette (No. 146) 23 December 1996 page 15.
2. Table of Amendments
This Version incorporates amendments made to the Commonwealth Powers (Industrial Relations) Act 1996 by Acts and subordinate instruments.
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Federal awards (Uniform System) Act 2003, No. 18/2003
Assent Date: 13.5.03 Commencement Date: Ss 50–53 on 17.12.03: Special Gazette (No. 238) 17.12.03 p. 1 CurrentState: This information relates only to the provision/s amending the Commonwealth Powers (Industrial Relations) Act 1996
Public Sector Employment (Award Entitlements) Act 2006, No. 15/2006
Assent Date: 11.4.06 Commencement Date: S. 20 on 3.7.06: Government Gazette 22.6.06 p. 1239 CurrentState: This information relates only to the provision/s amending the Commonwealth Powers (Industrial Relations) Act 1996
Public Sector Acts (Further Workplace Protection and Other Matters) Act 2006, No. 80/2006
Assent Date: 10.10.06 Commencement Date: S. 23 on 11.10.06: s. 2(1) CurrentState: This information relates only to the provision/s amending the Commonwealth Powers (Industrial Relations) Act 1996
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3. Explanatory Details
No entries at date of publication.
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