Conciliation and Arbitration Act 1956 (Cth)
CONCILIATION AND ARBITRATION.
An Act to amend the
[Assented to 30th June, 1956.]
BE it enacted by the Queen’s Most Excellent Majesty, the Senate, and the House of Representatives of the Commonwealth of Australia, as follows:—
Part I.—Preliminary.
(2.) The
(3.) The Principal Act, as
amended by this Act, may be cited as the
(2.) The remaining sections of this Act shall come into operation on a date to be fixed by Proclamation.
Part I.—Preliminary.
Part II.—Amendments of the Principal Act.
Part III.—Transitional Provisions.
Part IV.—Re-numbering.
Part II.—Amendments of the Principal Act.
“2. The chief objects of this Act are—
(
a ) to promote goodwill in industry;(
b ) to encourage conciliation with a view to amicable agreement, thereby preventing and settling industrial disputes;(
c ) to provide means for preventing and settling industrial disputes not resolved by amicable agreement, including threatened, impending and probable industrial disputes, with the maximum of expedition and the minimum of legal form and technicality;(
d ) to provide for the observance and enforcement of agreements and awards made in settlement of industrial disputes; and(
e ) to encourage the organization of representative bodies of employers and employees and their registration under this Act.”.
(
a ) by adding at the end of the definition of “Award” the words “and includes an order”;(
b ) by omitting the definition of “Conciliation Commissioner” and inserting in its stead the following definitions:—“‘Commissioner’ means a Commissioner appointed under this Act and includes the Senior Commissioner;
“‘Conciliator’ means a Conciliator appointed under this Act;
“‘Deputy President’ means a Deputy President of the Commission and includes an Acting Deputy President;”;
(
c ) by omitting from the definition of “Inquiry” the words “Division 3 of Part VI.” and inserting in their stead the words “Part VIb.”;(
d ) by inserting in the definition of “Order”, after the word “made”, the words “by the Commission”;(
e ) by inserting after the definition of “Organization” the following definition:—“‘Presidential member of the Commission’ means the President or a Deputy President;”;
(
f ) by omitting the definition of “The Court” and inserting in its stead the following definitions:—“‘The Commission’ means the Commonwealth Conciliation and Arbitration Commission established by this Act;
“‘The Commission in Presidential Session’ means the Commission constituted by presidential members of the Commission to the number of at least three;
“‘The Court’ means the Commonwealth Industrial Court created by this Act;
“‘The President’ means the President of the Commission and includes an Acting President;
“‘The Senior Commissioner’ includes an Acting Senior Commissioner.”; and
(
g ) by adding at the end thereof the following sub-section:—“(2.) A reference in this Act to an industrial dispute shall be read as including a reference to—
(
a ) a part of an industrial dispute;(
b ) an industrial dispute so far as it relates to a matter in dispute; or(
c ) a question arising in relation to an industrial dispute.”.
“Part II.—The Commonwealth Conciliation and Arbitration Commission.
“6.—(1.) There shall be a Commonwealth Conciliation and Arbitration Commission, which shall consist of the following members:—
(
a ) a President;(
b ) not less than two Deputy Presidents;(
c ) a Senior Commissioner; and(
d ) not less than five Commissioners.
“(2.) A member of the Commission shall be appointed by the Governor-General by commission and shall hold office as provided by this Act.
“7.—(1.) A person shall not be appointed as a presidential member of the Commission unless—
(
a ) immediately before the commencement of this section, he was a Judge of the Commonwealth Court of Conciliation and Arbitration; or(
b ) he is or has been a barrister or solicitor of the High Court or of the Supreme Court of a State of not less than five years’ standing.
“(2.) For the purposes of this Act, a Deputy President shall have seniority according to the date of his commission, or, in the case of a Deputy President who, immediately before his appointment, was a Judge of the Commonwealth Court of Conciliation and Arbitration, according to the date of his commission of appointment as a Judge of that Court.
“(3.) Subject to this section, a presidential member of the Commission shall hold office—
(
a ) until he resigns or attains the age of seventy years; or(
b ) in the case of such a member who is a Judge of the Commonwealth Court of Conciliation and Arbitration, until he resigns or dies.
“(4.) A presidential member of the Commission shall not be removed from office except in the manner provided by this Act for the removal from office of a Judge of the Court.
“(5.) Subject to this Act and to any other Act, a presidential member of the Commission shall have the same status and precedence as a Judge of the Court.
“(6.) A Judge of the Commonwealth Court of Conciliation and Arbitration who is appointed a presidential member of the Commission does not thereby cease to be such a Judge.
“8.—(1.) The President and the Deputy Presidents (not being Judges of the Commonwealth Court of Conciliation and Arbitration) shall receive the same salary as that of the Chief Judge and Judges of the Court, respectively, and the Consolidated Revenue Fund is appropriated accordingly.
“(2.) If the President is a Judge of the Commonwealth Court of Conciliation and Arbitration other than the Chief Judge he shall receive, in addition to his salary as such a Judge, salary at the rate of One thousand pounds a year.
“(3.) The salaries of the President and of the Deputy Presidents grow due from day to day but are payable monthly.
“(4.) The President and the Deputy Presidents shall be paid the same travelling expenses as those applicable to Judges of the Court.
“9. The Governor-General may appoint a person, being a Deputy President or a person qualified to be appointed a presidential member of the Commission, to act as President of the Commission during any absence from duty of the President and may appoint a person,
being a person qualified to be appointed a presidential member of the Commission, to act as a Deputy President of the Commission during any absence from duty of a Deputy President.
“10. During any absence from duty of the President, unless an Acting President of the Commission has been appointed, or during any absence from duty of an Acting President, the senior Deputy President who is not absent from duty and is willing to act shall have and may exercise all the powers and functions of the President.
“11. A member of the Commission shall, before proceeding to discharge the duties of his office, take before a Justice of the High Court or a Judge of the Supreme Court of a State an oath or affirmation in accordance with the form in the Schedule to this Act.
“12.—(1.) Where—
(
a ) a Commissioner—(i) was, immediately before the commencement of this section, a Conciliation Commissioner; and
(ii) was, immediately before his appointment as a Conciliation Commissioner, an officer of the Public Service of the Commonwealth; or
(
b ) a Commissioner was, immediately before his appointment, an officer of the Public Service of the Commonwealth,
he retains his existing and accruing rights and,
for the purpose of determining those rights, his service as a Conciliation
Commissioner and as a Commissioner, or as a Commissioner, as the case may be,
shall be taken into account as if it were service in the Public Service of the
Commonwealth and the
“(2.) Subject to the next succeeding sub-section, an officer of the Public Service of a State who becomes a Commissioner retains all his existing and accruing rights.
“(3.) An officer of the Public Service of a State who, immediately before his appointment as a Commissioner, was a contributor to the Superannuation Fund of that State is not entitled to retain any existing or accruing rights in respect of superannuation unless he pays to the Commonwealth the contributions (if any) refunded to him from that Fund upon his resignation from the Public Service of the State.
“13. Subject to this Act, a Commissioner shall hold office until he attains the age of sixty-five years.
“14.—(1.) The Governor-General may remove a Commissioner from office on an address praying for his removal on the ground of proved misbehaviour or incapacity being presented to the Governor-General by each House of the Parliament in the same Session of the Parliament.
“(2.) The Governor-General may suspend a Commissioner from office on the grounds of misbehaviour or incapacity.
“(3.) A full statement of the grounds of the suspension shall be laid before each House of the Parliament within seven sitting days of that House after the suspension.
“(4.) The Commissioner shall be restored to office unless each House of the Parliament, within forty days after the statement has been laid before it, presents to the Governor-General an address praying for the removal of the Commissioner on the ground of proved misbehaviour or incapacity.
“15. The office of a Commissioner shall be vacated if—
(
a ) he engages in paid employment outside the duties of his office;(
b ) he becomes bankrupt or insolvent, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his creditors or makes an assignment of his remuneration for their benefit;(
c ) he becomes permanently incapable of performing his duties;(
d ) except on leave granted by the Minister, he absents himself from duty for fourteen consecutive days or for twenty-eight days in any twelve months; or(
e ) he resigns his office by writing under his hand addressed to the Governor-General and his resignation has been accepted,
and the Governor-General declares, by notice in the
“16.—(1.) The salary of the Senior Commissioner shall be at the rate of Three thousand five hundred pounds a year and the salary of each other Commissioner shall be at the rate of Three thousand pounds a year, and the Consolidated Revenue Fund is appropriated accordingly.
“(2.) The Senior Commissioner and each other Commissioner shall be paid such travelling expenses as are considered reasonable by the Minister.
“16a. The Governor-General may appoint a person to act as Senior Commissioner during any absence from duty of the Senior Commissioner.
“16b. The exercise of a power or function by the Commission or by a member of the Commission is not affected by reason of a vacancy in the membership of the Commission.
“16c.—(1.) The Governor-General shall appoint Conciliators for the purposes of this Act.
“(2.) A Conciliator shall, before proceeding to discharge the duties of his office, take before a Justice of the High Court or a Judge of the Supreme Court of a State an oath or affirmation in accordance with the Schedule to this Act.
“16d. Sections twelve, thirteen, fourteen and fifteen of this Act apply to a Conciliator as though the references in those sections to a Commissioner were references to a Conciliator.
“16e.—(1.) The salary of a Conciliator shall be at the rate of Two thousand seven hundred and fifty pounds a year, and the Consolidated Revenue Fund is appropriated accordingly.
“(2.) A Conciliator shall be paid such travelling expenses as are considered reasonable by the Minister.
“Part IIa.—Powers and Functions of the Commission.
“
“16f. In this Division, unless the contrary intention appears, ‘Commissioner’ includes, in relation to an industrial dispute, a presidential member of the Commission dealing with that dispute.
“16g.—(1.) The Commission is empowered to prevent or settle industrial disputes, by conciliation or arbitration, in accordance with this Act.
“(2.) The Commission shall make all such suggestions and do all such things as appear to it to be right and proper—
(
(
(
“16h. Subject to this Act, the Commission may exercise any of its powers or functions under this Act of its own motion or on the application of a party to an industrial dispute or of an organization or person bound by an award.
“16j. Each member of the Commission shall keep himself acquainted with industrial affairs and conditions.
“16k.—(1.) The President may assign a Commissioner to a particular industry or group of industries and that Commissioner shall, so far as is practicable, deal with industrial disputes relating to that industry or that group of industries.
“(2.) The President may assign a Deputy President or a Commissioner to deal with a particular industrial dispute or may himself deal with a particular industrial dispute.
“16l.—(1.) Subject to the last preceding section, it is the duty of the Senior Commissioner to organize and allocate the work of the Commissioners and of the Conciliators.
“(2.) A Commissioner or a Conciliator shall comply with any direction given for the purpose of the last preceding sub-section which is applicable to him.
“16m.—(1.) Subject to this Act, if it appears to a Commissioner that an industrial dispute has occurred or is likely to occur, he shall, whether he has been notified under this section or not, immediately ascertain the parties to the industrial dispute and the matters which form the subject of that dispute and shall take such steps as he thinks fit for the prompt prevention or settlement of that dispute by conciliation or, if in his opinion conciliation is unlikely to succeed or has failed, by arbitration.
“(2.) As soon as an organization or employer becomes aware of the existence of an industrial dispute or of an industrial situation which is likely to give rise to an industrial dispute the organization or employer shall forthwith notify a Commissioner or the Registrar accordingly.
“(3.) A Minister who is aware of the existence of an industrial dispute or of an industrial situation which is likely to give rise to an industrial dispute may notify a Commissioner or the Registrar accordingly.
“16n.—(1.) A Commissioner may, whenever in his opinion it is desirable for the purpose of preventing or settling an industrial dispute, or upon application made by a party to an industrial dispute, direct a person to attend, at a time and place specified in the direction, at a conference presided over by a Commissioner, by a Conciliator or by such other person as the Commissioner determines.
“(2.) In determining the persons to whom directions are given under the last preceding sub-section, the Commissioner shall take into consideration the persons having the highest degree of authority, on behalf of the parties to the industrial dispute, to negotiate for the settlement of the dispute.
“(3.) A direction under sub-section (1.) of this section may be given orally, in writing signed by the Commissioner or by telegram sent by the Commissioner.
“(4.) A direction under sub-section (1.) of this section may be given not only to a person engaged in or connected with the industrial dispute but also to—
(
a ) a person engaged in or connected with a dispute relating to industrial matters (whether extending beyond the limits of a State or not) and related in any way to an industrial dispute; and(
b ) a person, whether connected with the industrial dispute or not, whose presence at the conference the Commissioner thinks is likely to conduce to the prevention or settlement of the industrial dispute.
“(5.) A person directed under sub-section (1.) of this section shall attend the conference and continue his attendance at the conference as directed by the person presiding over the conference.
Penalty: Five hundred pounds.
“(6.) Except to such extent as the person presiding over the conference directs that it be held in public, the conference shall be held in private.
“16p.—(1.) A Commissioner may, if, in his opinion, it may assist the parties to an industrial dispute to settle the dispute by amicable agreement, and shall, if the parties to an industrial dispute so request, arrange with the Senior Commissioner for a Conciliator to be made available for the purpose of assisting the parties to reach an amicable agreement.
“(2.) Where a Conciliator who has been made available under the last preceding sub-section is satisfied that the parties are unlikely to reach an amicable agreement, he shall, subject to the next succeeding sub-section, furnish a report in writing to the Commissioner as to the result of the endeavours to reach agreement, including the matters upon which agreement has, and upon which agreement has not, been reached.
“(3.) A Conciliator shall not furnish a report unless the parties to the industrial dispute consent and agree upon its terms.
“(4.) A Conciliator made available under sub-section (1.) of this section may, where—
(
a ) the parties to the industrial dispute are unable to reach an agreement on a part of the industrial dispute; and(
b ) the parties request him to determine that part of the industrial dispute and agree to abide by his decision,
decide that part of the industrial dispute.
“(5.) The next succeeding section extends to an agreement under this section.
“16q.—(1.) If an agreement between all or any of the parties as to an industrial dispute is arrived at, a memorandum of its terms shall be made in writing.
“(2.) Unless otherwise ordered, and subject to any direction of the Commission, the memorandum, if certified by the Commission, shall, as between the parties to the agreement or any successor to, or any assignee or transmittee of, the business of a party bound by the agreement, including any corporation which has acquired or taken over the business of such a party, have the same effect as, and be deemed to be, an award for all the purposes of this Act.
“(3.) The Commission may refuse to certify such a memorandum if it is of opinion that—
(
a ) the agreement is not in settlement of an industrial dispute;
(
b ) the agreement contains provisions which the Commission has no power to insert in an award; or(
c ) it is not in the public interest that the agreement should be certified.
“(4.) A memorandum certified by the Commission shall be filed in the office of the Registrar.
“16r. If no agreement between the parties as to an industrial dispute is arrived at, the Commission shall, subject to this Act, determine the dispute.
“16s.—(1.) The powers of the Commission to make an award, or to certify an agreement under section sixteen q of this Act—
(
a ) altering the standard hours of work in an industry;(
b ) altering the basic wage for adult males (that is to say, that wage, or that part of a wage, which is just and reasonable for an adult male, without regard to any circumstance pertaining to the work upon which, or the industry in which, he is employed) or the principles upon which it is computed;(
c ) making provision for or in relation to, or altering a provision for or in relation to, long service leave with pay; or(
d ) determining or altering the basic wage for adult females (that is to say, that wage, or that part of a wage, which is just and reasonable for an adult female, without regard to any circumstance pertaining to the work upon which, or the industry in which, she is employed) or the principles upon which it is computed,
are exercisable by the Commission in Presidential Session and not otherwise.
“(2.) Subject to this Act, the powers of the Commission, other than power to make an award or certify any agreement referred to in the last preceding sub-section, are exercisable by a Commissioner and not otherwise.
“(3.) Where, in relation to a matter before the Commission in Presidential Session, the question whether the Commission in Presidential Session is empowered, having regard to the last two preceding sub-sections, to deal with that matter is raised—
(
a ) if the opinion of the Commission in Presidential Session is that it is empowered to deal with that matter, then, notwithstanding anything contained in this Act, the Commission in Presidential Session is empowered to deal with the matter; or(
b ) if the opinion of the Commission in Presidential Session is that it is not empowered to deal with that matter, then, notwithstanding anything contained in this Act, the Commission constituted by a Commissioner is empowered to deal with the matter.
“(4.) Where, in relation to a matter before the Commission constituted by a Commissioner, the question whether the Commission so constituted is empowered, having regard to sub-sections (1.)
and (2.) of this section, to deal with that matter is raised, the Commissioner shall refer the question to the President and—
(
a ) if the opinion of the President is that the Commission constituted by a Commissioner is so empowered, then, notwithstanding anything contained in this Act, the Commission so constituted is empowered to deal with the matter; or(
b ) if the opinion of the President is that the Commission constituted by a Commissioner is not so empowered, then, notwithstanding anything contained in this Act, the Commission in Presidential Session is empowered to deal with the matter.
“16t.—(1.) In this section, unless the contrary intention appears, ‘the Commission’ means the Commission constituted by not less than three members of the Commission nominated by the President, at least one of whom is a presidential member of the Commission and one is, where practicable, the Commissioner concerned.
“(2.) A Commissioner (in this section referred to as ‘the Commissioner concerned’) shall, upon application by a party to an industrial dispute which is being dealt with by him, on the ground that the industrial dispute is of such importance that, in the public interest, it should be dealt with as provided by this section, consult with the President as to whether the industrial dispute should be so dealt with.
“(3.) If the President, having regard to the reasons for the application, is of opinion that the industrial dispute should, in the public interest, be so dealt with, he may direct accordingly.
“(4.) Where the President so directs, the Commission shall, subject to the next succeeding sub-section, hear and determine the industrial dispute.
“(5.) The Commission may refer the industrial dispute, so far as it relates to a matter in dispute, back to the Commissioner concerned and, in that case, the Commission constituted by that Commissioner shall hear and determine the industrial dispute so far as it relates to that matter and the Commission shall hear and determine the industrial dispute in so far as it relates to matters not so referred back.
“(6.) The Commission may, for the purposes of this section, direct a Commissioner or a Conciliator to furnish a report with respect to a specified matter and the Commissioner or Conciliator to whom the direction is given shall, after making such investigation (if any) as is necessary, furnish a report accordingly.
“16u.—(1.) In this section, unless the contrary intention appears, ‘the Commission’ means the Commission constituted by not less than three members of the Commission nominated by the President, of whom at least two are presidential members of the Commission.
“(2.) An appeal lies to the Commission against—
(
a ) an award made by the Commission constituted by a Commissioner;(
b ) a decision of the Commission, constituted by a Commissioner, certifying, or refusing to certify, a memorandum under section sixteen q of this Act;(
c ) a decision of the Commission, constituted by a Commissioner, under paragraph (d ) of section sixteen aa of this Act refraining or refusing to refrain from further hearing or from determining an industrial dispute on the ground that the industrial dispute has been dealt with, is being dealt with or is proper to be dealt with by a State Industrial Authority.
“(3.) An appeal does not lie under the last preceding sub-section unless, in the opinion of the Commission, the matter is of such importance that, in the public interest, an appeal should lie.
“(4.) An appeal under sub-section (2.) of this section—
(
a ) shall be made within fourteen days after the date of the award or decision appealed against; and(
b ) may be made—(i) in the case of an appeal under paragraph (
a ) of that sub-section—by an organization or person bound by the award;(ii) in the case of an appeal under paragraph (
b ) of that sub-section—by a party to the agreement the subject of the memorandum; or(iii) in the case of an appeal under paragraph (
c ) of that sub-section—by an organization or person aggrieved by the decision.
“(5.) Where an appeal has been instituted under this section, the Commission may, on such terms and conditions as it thinks fit, make an order that the operation of the whole or a part of the award or decision be stayed pending the determination of the appeal or until further order of the Commission.
“(6.) Upon the hearing of an appeal under this section, the Commission may—
(
a ) admit further evidence; and(
b ) direct a Commissioner or a Conciliator to furnish a report to the Commission with respect to such matter as it specifies,
and shall—
(
c ) confirm, quash or vary the award or decision under appeal; or(
d ) make an award dealing with the subject-matter of the award or decision under appeal.
“(7.) Where, in pursuance
of paragraph (
“(8.) The provisions of this Division relating to the hearing and determination, or to the hearing or determination, of an industrial dispute extend to the hearing and determination, or to the hearing or determination, as the case may be, of an appeal under this section.
“16v.—(1.) The Attorney-General may, on behalf of the Commonwealth, by giving to the Registrar notice in writing of his intention so to do, intervene in the public interest in a matter before the Commission under sub-section (1.) of section sixteen s of this Act or under either of the last two preceding sections.
“(2.) Where the Attorney-General intervenes in accordance with this section, a person or organization may apply to the Commission for leave to be heard and the Commission may, if it is of the opinion that it is desirable that the applicant should be heard, permit the applicant to be heard.
“16w.—(1.) This section applies where the hearing of an industrial dispute has been commenced before the Commission and, before an award has been made determining the dispute—
(
a ) where the Commission is constituted by a single member of the Commission—(i) that member has become unable to continue to hear the industrial dispute or has ceased to be a member, whether by death or otherwise; or
(ii) the President has assigned the industry or group of industries to which the industrial dispute relates to another member; or
(
b ) where the Commission is constituted by two or more members of the Commission—one of the members has become unable to continue to hear the industrial dispute or has ceased to be a member, whether by death or otherwise.
“(2.) In a case to which this section applies, the Commission, constituted as provided by this Part, shall hear and determine the dispute, or so much of the dispute as has not been determined, and, in the hearing, shall have regard to the evidence given, the arguments adduced and any award or determination made during the previous hearing.
“(3.) For the purposes of this section, a member of the Commission who has withdrawn from the hearing of an industrial dispute shall be deemed to have become unable to continue to hear the industrial dispute.
“16x. The Commission constituted by one or more members of the Commission may exercise its powers, whether under this Act or otherwise, notwithstanding that the Commission constituted by one or more other members of the Commission is at the same time exercising the powers of the Commission, whether under this Act or otherwise.
“16y. In relation to an industrial dispute with which the Commission is dealing, the Commission shall, in such manner as it thinks fit, carefully and expeditiously hear, inquire into and investigate the dispute and all matters affecting the merits of the dispute and the right settlement of the dispute.
“16z.—(1.) In the hearing and determination of an industrial dispute—
(
a ) the procedure of the Commission is, subject to this Act and the regulations, within the discretion of the Commission;(
b ) the Commission is not bound to act in a formal manner and is not bound by any rules of evidence but may inform itself on any matter in such manner as it thinks just; and(
c ) the Commission shall act according to equity, good conscience and the substantial merits of the case, without regard to technicalities and legal forms.
“(2.) The Commission may determine the periods which are reasonably necessary for the fair and adequate presentation of the respective cases of the parties to the industrial dispute and require that those cases be presented within the respective periods so determined.
“(3.) The Commission may require evidence or argument to be presented in writing and may decide the matters upon which the Commission will hear oral evidence or argument.
“16aa. The Commission may, in relation to an industrial dispute or other proceedings before it—
(
a ) take evidence on oath or affirmation;(
b ) make an award (including a provisional or interim award relating to any or all of the matters in dispute) or give a direction in pursuance of the hearing or determination;(
c ) fix maximum penalties for a breach or non-observance of any term of an award, not exceeding One hundred pounds in the case of an organization or an employer who is not a member of an organization bound by the award or Ten pounds in the case of a member of an organization;(
d ) dismiss a matter or part of a matter or refrain from further hearing or from determining the dispute or part of the dispute if it appears—(i) that the dispute or part is trivial;
(ii) that the dispute or part has been dealt with, is being dealt with or is proper to be dealt with by a State Industrial Authority; or
(iii) that further proceedings are not necessary or desirable in the public interest;
(
e ) hear and determine the dispute in the absence of a party who has been summoned or served with notice to appear;(
f ) sit at any place;(
g ) conduct its proceedings or any part of its proceedings in private;(
h ) adjourn to any time and place;(
i ) refer any matter to an expert and accept his report as evidence;(
j ) direct parties to be joined or struck out;(
k ) allow the amendment, on such terms as it thinks fit, of any proceedings;(
l ) correct, amend or waive any error, defect or irregularity, whether in substance or in form;(
m ) extend any prescribed time;(
n ) summon before it the parties to the dispute, and witnesses, and compel the production before it of books, papers, documents and things for the purpose of reference to such entries or matters only as relate to the dispute; and(
o ) generally give all such directions and do all such things as are necessary or expedient for the expeditious and just hearing and determination of the dispute.
“16ab.—(1.) A member of the Commission, and a person authorized in writing by a member of the Commission or the Registrar, may at any time during working hours enter any building, mine, mine working, ship, vessel, place or premises of any kind in which or in respect of which an industry is carried on or work is being or has been done or commenced, or a matter or thing is taking or has taken place in relation to which an industrial dispute is pending, or an award has been made, or an offence against this Act is suspected, and may, to the extent and for the purposes named in the authority, inspect or view any work, material, machinery, appliance, article, book, paper, document or thing therein and may interview any employee engaged therein.
“(2.) A person shall not hinder or obstruct a person in the exercise of the power conferred by the last preceding sub-section or make to a person exercising a power conferred by that sub-section a statement, either orally or in writing, which is false or misleading in any particular.
Penalty: Ten pounds.
“16ac. The Commission may authorize a person to take evidence on its behalf, with such limitations (if any) as the Commission directs, in relation to an industrial dispute and that person shall have all the powers of the Commission to secure the attendance of witnesses, the production of books, papers, documents and things and the taking of evidence on oath or affirmation.
“16ad.—(1.) The Commission may refer an industrial dispute which is before it to a Local Industrial Board for investigation and report and may delegate to that Board such of the powers of the Commission (including powers of the Commission in relation to conciliation and the settlement of the dispute by amicable agreement) as the Commission considers desirable and may at any time revoke the reference.
“(2.) On the report of the Local Industrial Board, the Commission may, with or without hearing further evidence or argument or both, determine the dispute and make its award.
“(3.) In this section, ‘Local Industrial Board’ means—
(
a ) a Conciliator;(
b ) a State Industrial Authority willing to act; or(
c ) a Local Board constituted as prescribed or as directed by the Commission and consisting of equal numbers of representatives of employers and of employees and a Chairman appointed by the Commission.
“16ae. Where—
(
a ) an organization is a party to or concerned in an industrial dispute with which the Commission or some other tribunal acting in pursuance of a law of the Commonwealth is empowered to deal (whether or not proceedings in relation to the dispute are before the Commission or such a tribunal); and(
b ) the Commission constituted by not less than three members nominated by the President (at least one of whom is a presidential member of the Commission) thinks that the views of the members, or of a section or class of the members, of the organization or of a branch of the organization upon a matter ought to be ascertained with a view to assisting the prevention or settlement of the dispute,
the Commission so constituted may order that that matter be submitted to a vote of those members, or of the members of that section or class, taken by secret ballot (with or without provision for absent voting) in accordance with directions given by the Commission.
“16af. A person shall not—
(
a ) obstruct the taking of a ballot under the last preceding section;(
b ) use any form of intimidation to prevent from voting a person entitled to vote at a ballot under the last preceding section; or(
c ) being an officer of an organization, refuse to assist in the taking of a ballot under the last preceding section by providing for the use of the Returning Officer or his assistants such register and lists of members of the organization as the Returning Officer requires.
Penalty: Fifty pounds or imprisonment for six months.
“16ag.—(1.) The Commission may, by an award, or by an order made on the application of an organization or person bound by an award, direct that preference shall, in relation to such matters, in such manner and subject to such conditions as are specified in the award or order, be given to such organizations or members of organizations as are specified in the award or order.
“(2.) Whenever, in the opinion of the Commission, it is necessary, for the prevention or settlement of an industrial dispute, for ensuring that effect will be given to the purposes and objectives of an award, for the maintenance of industrial peace or for the welfare of society to direct that preference shall be given to members of organizations as provided by the last preceding sub-section, the Commission shall so direct.
“(3.) Where—
(
a ) the Commission has, under sub-section (1.) of this section, directed, by award or order, that preference shall be given to members of an organization which is an association of employees; and(
b ) a person, upon application made to the Registrar in the prescribed form and manner, satisfies the Registrar that the person's conscientious beliefs do not allow the person to be a member of such an organization,
the Registrar shall, subject to sub-section (5.) of this section, issue to the person a certificate to the effect that, while the certificate, or a renewal of the certificate, is in force, an employer bound by the award or order is not required, by reason of the award or order, to give preference to members of the organization over the person, and the certificate has effect according to its tenor.
“(4.) A certificate under the last preceding sub-section remains in force for such period, not exceeding twelve months, as is specified in the certificate, but, subject to the next succeeding sub-section, may be renewed from time to time by the Registrar for such period, not exceeding twelve months, as the Registrar thinks fit.
“(5.) The Registrar—
(
a ) shall not issue a certificate to a person under sub-section (3.) of this section in relation to a direction under sub-section (1.) of this section unless the person has paid to the Registrar such amount as would, in the opinion of the Registrar, be payable by the person to the organization specified in the direction in respect of entrance fees and subscriptions if the person became a member of the organization on the day on which the certificate is to be issued and continued to be such a member for the period during which the certificate is to remain in force; and
(
b ) shall not renew the certificate unless the person has paid to the Registrar such amount as would, in the opinion of the Registrar, be payable by the person to the organization in respect of subscriptions if he were a member of the organization immediately before the renewal of the certificate and continued to be such a member for the period during which the renewed certificate is to remain in force.
“(6.) The Registrar shall pay amounts received by him under the last preceding sub-section into the Consolidated Revenue Fund.
“(7.) In sub-section (3.) of this section, ‘conscientious beliefs’ means any conscientious beliefs whether the grounds for the beliefs are or are not of a religious character and whether the beliefs are or are not part of the doctrine of any religion.
“16ah. Where the Commission, by an award, prescribes a minimum rate of wages, the Commission may provide for the payment of wages at a lower rate for an employee who is unable to earn the minimum wage so prescribed, and in that case the Commission shall provide that the lower rate shall not be paid unless a person or authority specified by the Commission has certified that the employee is unable to earn the minimum wage.
“16aj.—(1.) The Commission may, if it appears to be necessary or expedient for the purpose of preventing or settling an industrial dispute with which it is dealing or of preventing further industrial disputes, declare that any term of an award shall, in a Territory of the Commonwealth, be a common rule of any industry in connexion with which the dispute arose.
“(2.)
Before a common rule is declared under the last preceding sub-section, the
Commission shall, by notification published in the
thinks fit, specifying the industry and the industrial matter in relation to which it is proposed to declare a common rule, make known that all persons and organizations interested and desiring to be heard may, on or before a specified date, appear or be represented before the Commission and the Commission shall hear all interested persons and organizations so appearing or represented.
“16ak.—(1.) The Commission may, by an award, or by an order made on the application of an organization or person bound by an award—
(
a ) appoint, or give power to appoint, for the purposes of the award, a Board of Reference consisting of one or more persons; and(
b ) assign to the Board of Reference the function of allowing, approving, fixing, determining or dealing with, in the manner and subject to the conditions specified in the award or order, a matter or thing which, under the award, may from time to time require to be allowed, approved, fixed, determined or dealt with by the Board.
“(2.) A Board of Reference appointed under this section may consist of or include a Commissioner or a Conciliator.
“16al. In determining an industrial dispute, the Commission shall provide, so far as possible, and so far as the Commission thinks proper, for uniformity throughout an industry carried on by employers in relation to hours of work, holidays and general conditions in that industry.
“16am. In determining an industrial dispute in which the rates of pay or conditions of employment applying to apprentices in an industry are in question, the Commission shall take into consideration any scheme of apprenticeship provided by or under the law of any State or Territory of the Commonwealth.
“16an. In determining an industrial dispute, the Commission shall take into consideration the provisions of any law of a State or Territory of the Commonwealth relating to the safety, health and welfare of employees (including children) in relation to their employment.
“16ap. The Commission shall not include in an award a provision requiring a person claiming the benefit of an award to notify his employer that he is a member of an organization bound by the award.
“16aq. In making an award in relation to an industrial dispute, the Commission is not restricted to the specific relief claimed by the parties to the industrial dispute, or to the demands made by the parties in the course of the dispute, but may include in the award any matter or thing which the Commission thinks necessary or expedient for the purpose of preventing or settling the dispute or of preventing further industrial disputes.
“16ar. An award shall be framed in such a manner as best to express the decision of the Commission and to avoid unnecessary technicalities.
“16as. An award of the Commission constituted by a Commissioner shall not, unless all parties to the industrial dispute who appear or are represented before the Commission consent or the Commission otherwise directs, have effect until after the expiration of twenty-one days from the date of the award.
“16at.—(1.) An award determining an industrial dispute shall, subject to the next succeeding section, continue in force for a period to be specified in the award, not exceeding five years from the date upon which the award comes into force.
“(2.) After the expiration of the period so specified, the award shall, subject to the next succeeding section, and unless the Commission otherwise orders, continue in force until a new award has been made.
“(3.) Nothing in sub-section (1.) of this section prevents the inclusion in an award of provisions in relation to long service leave with pay notwithstanding that those provisions are so expressed as not to be capable of operating, or of operating fully, during the period specified in the award in pursuance of sub-section (1.) of this section.
“(4.) Where, in pursuance of sub-section (2.) of this section, an award has continued in force after the expiration of the period specified in the award, any award made by the Commission for the settlement of a new industrial dispute between the parties may be made to operate from a date not earlier than the date upon which the dispute arose.
“(5.) The fact that an award determining an industrial dispute has been made and is in force does not prevent an award being made for the settlement of a further industrial dispute between all or any of the parties to the first-mentioned award, with or without additional parties, and whether or not the subject-matter of the further industrial dispute is the same in whole or in part as the subject-matter of the industrial dispute determined by the first-mentioned award.
“16au.—(1.) The Commission may, if for any reason it considers it desirable to do so, set aside an award or any of the terms of an award.
“(2.) The Commission may, if for any reason it considers it desirable to do so, and shall if it considers it desirable for the purpose of removing ambiguity or uncertainty, vary any of the terms of an award.
“16av.—(1.) Subject to this Act, an award (including an award made on appeal)—
(
a ) is final and conclusive;(
b ) shall not be challenged, appealed against, reviewed, quashed or called in question in any court; and(
c ) is not subject to prohibition, mandamus or injunction in any court on any account.
“(2.) A determination or finding of the Commission upon a question as to the existence of an industrial dispute is, in all courts and for all purposes, conclusive and binding on all persons affected by that question.
“(3.) An award shall not be called in question in any way on the ground that it was made by the Commission constituted otherwise than as provided by this Act.
“16aw. An award determining an industrial dispute is binding on—
(
a ) all parties to the industrial dispute who appeared or were represented before the Commission;(
b ) all parties to the industrial dispute who were summoned or notified, either personally or as prescribed, to appear as parties to the dispute, whether they appeared or not;(
c ) all parties who, having been notified, either personally or as prescribed, of the industrial dispute and of the fact that they were alleged to be parties to the dispute, did not, within the time prescribed, satisfy the Commission that they were not parties to the dispute;(
d ) in the case of employers, any successor to, or any assignee or transmittee of, the business of a party to the dispute or of a party bound by the award, including any corporation which has acquired or taken over the business of such a party;(
e ) all organizations and persons on whom the award is binding as a common rule; and(
f ) all members of organizations bound by the award.
“16ax.—(1.) If it appears to the Commission in Presidential Session, on the application of an organization, a person interested, the Attorney-General or the Registrar—
(
a ) that an organization entitled to the benefit of an award has committed a breach or non-observance of this Act, of an award, or of an order of the Court;(
b ) that a number of members of an organization sufficiently large to form a substantial part of the organization refuse to accept employment either at all or in accordance with existing awards; or(
c ) that for any other reason an award ought to be suspended or cancelled in whole or in part,
the Commission may, subject to such conditions as it thinks fit, suspend or cancel, for such period as it thinks fit, all or any of the terms of an award in force so far as the award applies to, or is in favour of, the organization or its members.
“(2.) During the period of suspension or cancellation, a person affected, as a present or past member of the organization, by the suspension or cancellation is not entitled to the benefit of any other award in force and every such award shall cease to apply to the employment of those persons.
“(3.) The suspension or cancellation may be limited to specified persons or classes of persons, to a specified branch of the organization, or to specified localities.
“16ay.—(1.) In proceedings before the Commission, a party or intervener—
(
a ) being an organization, may be represented by a member or officer of the organization; and(
b ) not being an organization, may be represented by—(i) an employee of that party or intervener; or
(ii) a member or officer of an organization of which that party or intervener is a member,
but, subject to the next succeeding sub-section, a party or intervener shall not be represented by counsel, solicitor or paid agent except—
(
c ) by leave of the Commission and with the consent of all parties; or(
d ) by leave of the Commission, granted upon application made by a party, on the ground that, having regard to the subject-matter of the proceedings, there are special circumstances which make it desirable that the parties and interveners may be so represented.
“(2.) Where the Attorney-General has intervened in proceedings before the Commission, a party or intervener may, with the leave of the Commission, be represented by counsel, solicitor or paid agent.
“16az. A certificate by the Registrar that an industrial dispute exists, or is threatened, impending or probable, as an industrial dispute extending beyond the limits of any one State is evidence that the fact is as stated.
“16ba. Where a State law, or an order, award, decision or determination of a State Industrial Authority, is inconsistent with, or deals with a matter dealt with in, an award, the latter prevails and the former, to the extent of the inconsistency or in relation to the matter dealt with, is invalid.
“16bb.—(1.) If it appears to the Commission in Presidential Session that a State Industrial Authority is dealing or is about to deal with an industrial dispute or with a matter which is provided for in an award or is the subject of proceedings under this Part, the Commission may make such order restraining the State Industrial Authority from dealing with that industrial dispute or matter as the Commission thinks fit, and thereupon the Authority shall, in accordance with the order, cease to proceed in that industrial dispute or matter.
“(2.) An order, award, decision or determination of a State Industrial Authority made in contravention of an order made under this section is, to the extent of the contravention, void.
“16bc. Where it appears to the President to be desirable, in relation to an industrial matter, that a conference should be held with a State Industrial Authority, he may, if that Authority is willing, confer with that Authority, or arrange for a Deputy President or the Senior Commissioner to confer with that Authority, with a view to securing co-ordination between any awards made or to be made under this Part and any orders, awards, decisions or determinations made or given or to be made or given by that Authority.
“16bd. Where the Commission constituted by three or more members of the Commission is divided in opinion on a question, the question shall be decided according to the decision of the majority, if there is a majority, but if the Commission so constituted is equally divided in opinion, the question shall be decided—
(
a ) according to the opinion of the President; or(
b ) if the President is not sitting as a member of the Commission, according to the opinion of the Deputy President, or of the senior Deputy President, present.
“16be. The President shall summon, not less frequently than once in every four months, a conference of members of the Commission to discuss matters relating to the operation of Part II. and of this Part and, in particular, means for ensuring expedition in the settlement of industrial disputes.
“16bf. The President shall, once in each year, furnish to the Minister, for presentation to the Parliament, a report on the working of Part II. and of this Part and, in particular, the extent to which the objects of this Act have been achieved.
“16bg. In this Division, unless the contrary intention appears—
‘industrial dispute’ means a dispute (including a threatened, impending or probable dispute) as to industrial matters which extends beyond the limits of any one State, and includes—
(
a ) a part of an industrial dispute;(
b ) an industrial dispute so far as it relates to a matter in dispute; or(
c ) a question arising in relation to an industrial dispute;‘industrial matter’ means any matter in relation to the salaries, wages, rates of pay or other terms or conditions of service or employment of masters, pilots or seamen, and includes a question arising in relation to such a matter;
‘industrial question’ means—
(
a ) an industrial dispute; and(
b ) an industrial matter;
‘masters’, ‘pilots’ and ‘seamen’ have the same
meanings as in the
“16bh. The Commission is empowered—
(
a ) to prevent or settle industrial disputes by conciliation or arbitration; and(
b ) to hear and determine industrial matters submitted to it in so far as those matters relate to trade and commerce with other countries or among the States or in a Territory of the Commonwealth, whether or not an industrial dispute exists in relation to those matters.
“16bj.—(1.) Subject to the next succeeding sub-section, the powers of the Commission in respect of an industrial question are exercisable by the Commission constituted by a presidential member of the Commission assigned by the President for the purpose and not otherwise.
“(2.) The powers of the Commission in respect of an industrial question—
(
a ) in relation to a matter referred to in sub-section (1.) of section sixteen s of this Act—are exercisable by the Commission in Presidential Session; and(
b ) under section sixteen t or sixteen u of this Act—are exercisable by the Commission constituted as provided by whichever of those sections is applicable,
and not otherwise.
“16bk.—(1.) Subject to this Division, Division 1 of this Part extends to and in relation to the powers and functions of the Commission under this Division, to and in relation to proceedings under this Division and to and in relation to awards made under this Division.
“(2.) In the application of Division 1 of this Part under the last preceding sub-section, references to industrial disputes shall be read as references to industrial questions and references to a Commissioner or to the Commissioner shall be read as references to the presidential member of the Commission referred to in sub-section (1.) of the last preceding section.
“16bl. An award under this Division may be made inconsistent
with Division 15 of Part II. of the
“16bm. In this Division, unless the contrary intention appears—
‘contractor with the Authority’ means a person between whom and the Authority there is in force an agreement for the performance of work for or on behalf of the Authority in the
specified area, but does not include a State, an authority of a State or a local governing body;
‘employee’ means—
(
a ) a temporary or casual employee employed by the Authority under section twenty-three of the Act;(
b ) a person employed by a contractor with the Authority and working in the specified area in connexion with the work the subject of the agreement between that contractor and the Authority; and(
c ) a person employed by a sub-contractor with the Authority and working in the specified area in connexion with the work the subject of the agreement between that sub-contractor and the contractor with the Authority;‘industrial dispute’ means a dispute (including a threatened, impending or probable dispute) as to industrial matters, and includes—
(
a ) a part of an industrial dispute;(
b ) an industrial dispute so far as it relates to a matter in dispute; or(
c ) a question arising in relation to an industrial dispute;‘industrial matter’ means any matter in relation to the salaries, wages, rates of pay or other terms or conditions of service or employment of employees, and includes a question arising in relation to such a matter;
‘industrial question’ means—
(
a ) an industrial dispute; and(
b ) an industrial matter;‘sub-contractor with the Authority’ means a person between whom and a contractor with the Authority there is in force an agreement for the performance of work for or on behalf of that contractor in the specified area, being work in connexion with the work the subject of the agreement between that contractor and the Authority, but does not include a State, an authority of a State or a local governing body;
‘the Act’ means the
Snowy Mountains Hydro-electric Power Act 1949–1956;‘the Authority’ means the Snowy Mountains Hydro-electric Authority;
‘the specified area’ means—
(
a ) the Snowy Mountains Area referred to in section six of the Act; and(
b ) such other areas as are prescribed, being areas in which works referred to in section seventeen of the Act are being constructed, maintained, operated, protected, managed or controlled.
“16bn. The Commission is empowered—
(
a ) to prevent or settle, by conciliation or arbitration, industrial disputes; and(
b ) to hear and determine industrial matters submitted to it.
“16bp.—(1.) Subject to the next succeeding sub-section, the powers of the Commission in respect of an industrial question are exercisable by the Commission constituted by a presidential member of the Commission assigned by the President for the purpose and not otherwise.
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Section 60...................... |
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Section 61...................... |
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Section 65...................... |
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Section 83...................... |
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Section 96m................... |
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Section 121a.................. |
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The Schedule................. |
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