Conciliation and Arbitration Act 1958 (Cth)
CONCILIATION AND ARBITRATION.
An Act to amend the
Conciliation and Arbitration Act 1904–1956, and for other purposes.
[Assented to 21st May, 1958.]
BE it enacted by the Queen’s Most Excellent Majesty, the Senate, and the House of Representatives of the Commonwealth of Australia, as follows:—
(2.) The
(3.) The Principal Act, as amended by this Act, may
be cited as the
“Division 5.—Industrial Matters—Commonwealth Projects (Sections 88a–88d).”
the words—
“Division 6.—References by, and Appeals from, the Registrar (Sections 88e–88g).”.
“‘The Commission in Presidential Session’, in relation to a matter, means the Commission constituted by such presidential members of the Commission to the number of at least three as are nominated by the President for the purposes of that matter;”.
(2.) The amendment made by the last preceding sub-section does not apply in relation to a matter the hearing of which was begun before the commencement of this Act.
“9.—(1.) Where the President of the Commission is, or is expected to be, absent from duty, the Governor-General may appoint a Deputy President, or an Acting Deputy President, of the Commission to act as President of the Commission during the absence.
“(2.) Where a presidential member of the Commission is, or is expected to be, absent from duty, the Governor-General may appoint a person qualified to be appointed a presidential member of the Commission to act as a Deputy President of the Commission for such period as the Governor-General determines and the Governor-General may, either during or after that absence, extend that period for such further period or periods as he thinks fit.
“(3.) Sub-section (2.) of section six of this Act does not apply in relation to an appointment under this section.”.
“11a. A member of the Commission has, in the performance of his functions and duties as a member of the Commission, the same protection and immunity as a Judge of the Court.”.
“(2.) The last preceding sub-section shall not be construed as limiting the power of the Commission to grant leave to a person or organization to intervene in any matter before the Commission, but that power shall not be exercised except in a case where the Commission is of the opinion that it is desirable that a person or organization should be heard.”.
“37.—(1.) This section applies where the hearing of a matter has been commenced before the Commission and, before an order or award has been made determining the matter—
(
a ) where the Commission is constituted by a single member of the Commission—(i) that member has become unable to continue to hear the matter 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 matter, being an 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 matter 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 Act, shall hear and determine the matter, or so much of the matter 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 a matter shall be deemed to have become unable to continue to hear the matter.”.
(
a ) by inserting in sub-section (1.), after the word “dispute”, the words “or in any other proceedings before the Commission”; and(
b ) by inserting in sub-section (2.), after the word “dispute”, the words “or other proceedings”.
(
a ) by omitting the definition of “industrial matter” and inserting in its stead the following definition:—“‘industrial matters’ means such matters as would be industrial matters within the meaning of the definition of ‘Industrial matters’ in sub-section (1.) of section four of this Act if the references in that definition to employees were references to seamen only;”;
(
b ) by omitting all the words after the definition of “industrial question” and inserting in their stead the following definition:—“‘seaman’ means a person who is, or whose usual occupation is that of, a master as defined in section six of the
Navigation Act 1912–1956, a seaman as so defined or a pilot as so defined.”; and(
c ) by adding at the end thereof the following sub-section:—“(2.) A reference in this Division to an industrial matter shall be read as including a reference to a question arising in relation to an industrial matter.”.
“
Division 6. —References by, and Appeals from, the Registrar.
“88e.—(1.) The Registrar may refer a matter, or a question (other than a question of law) arising in connexion with a matter, before him to the Commission for decision.
“(2.) The Commission is empowered to hear and determine a matter or question so referred to it or may refer the matter or question back to the Registrar for decision, with or without such directions or suggestions as the Commission thinks fit.
“(3.) The powers of the Commission under this section in respect of a matter or question referred to the Commission are
exercisable by the Commission constituted by the President or by a presidential member of the Commission assigned by the President for the purpose of the reference.
“88f.—(1.) The Commission may grant leave to appeal to the Commission from an act or decision of the Registrar in relation to a matter and may hear and determine an appeal in respect of which leave is so granted.
“(2.) Where leave to appeal has been granted under this section, the Commission may, on such terms and conditions as it thinks fit, make an order that the operation of the act or decision of the Registrar be stayed pending the determination of the appeal or until further order of the Commission.
“(3.) The Commission may take further evidence for the purposes of an appeal under this section.
“(4.) Upon the determination of an appeal under this section by the Commission, the Commission shall make such order as it thinks fit and may confirm, quash or vary a decision of the Registrar appealed from.
“(5.) The powers of the Commission under this section in respect of an appeal to the Commission are exercisable by the Commission constituted by the President or by a presidential member of the Commission assigned by the President for the purpose of the appeal.
“88g. In this Division, ‘matter’ does not include the settling by the Registrar of the minutes of an order or judgment of the Court or a Judge or the taxation by the Registrar of the costs of proceedings before the Court or a Judge.”.
(2.) The power of the Commonwealth Conciliation and Arbitration Commission under section eighty-eight f of the Principal Act as amended by this Act to grant leave to appeal, and to hear and determine an appeal, extends to the granting of leave to appeal, and to the hearing and determination of an appeal, from an act done or a decision given before the date of commencement of this Act, including an act or decision in respect of which an appeal under section one hundred and nine of the Principal Act had been instituted, but had not been heard and determined, before that date.
(
a ) by omitting from paragraph (c ) of sub-section (2.) the letter and word “(c ) or”; and(
b ) by omitting paragraph (d ) of sub-section (2.).
“(2.) The last preceding sub-section shall not be construed as limiting the power of the Court to grant leave to a person or
organization to intervene in any matter before the Court, but that power shall not be exercised except in a case where the Court is of the opinion that it is desirable that a person or organization should be heard.”.
(
a ) by adding at the end of paragraph (b ) of sub-section (1.) the word “and”; and(
b ) by omitting paragraph (c ) of sub-section (1.).
(
a ) by adding at the end of sub-section (3.) the words “which or who have been given an opportunity of being heard by the Court”; and(
b ) by omitting sub-section (4.).
“112.—(1.) The Registrar may refer a question of law arising in a matter before him for the opinion of the Court.
“(2.) The Court shall hear and determine any question referred to it under the last preceding sub-section.
“(3.) Upon the determination by the Court of a question referred to it under this section, the Registrar shall not give a decision, or do any other act or thing, in the matter in which the question arose that is inconsistent with the opinion of the Court.”.
(
a ) by omitting from sub-section (1.) the words “An officer, servant or agent, or a member of a committee, of an organization or branch of an organization” and inserting in their stead the words “A person who holds office in, or is otherwise an officer of, an organization or branch of an organization, or the agent of an organization or branch of an organization,”;(
b ) by inserting in paragraph (a ) of sub-section (1.), after the word “or” (last occurring), the words “(in the case of an agreement, employment or work that relates to or is work to which the award applies)”; and(
c ) by omitting sub-section (3.) and inserting in its stead the following sub-section:—“(3.) In a prosecution for a contravention of this section it is a defence to prove that the reason for the conduct charged—
(
a ) was unrelated to the terms and conditions of employment prescribed by the award; or(
b ) was related to a failure or proposed failure by an employer to observe the award.”.
“140.—(1.) A rule of an organization—
(
a ) shall not be contrary to a provision of this Act, the regulations or an award or otherwise be contrary to law or be such as to cause the rules of the organization to fail to comply with such a provision;(
b )shall not be such as to prevent or hinder members of the organization from observing the law or the provisions of an award; and(
c ) shall not impose upon applicants for membership, or members, of the organization, conditions, obligations or restrictions which, having regard to the objects of this Act and the purposes of the registration of organizations under this Act, are oppressive, unreasonable or unjust.
“(2.) A member of an organization may apply to the Court for an order declaring that the whole or a part of a rule of the organization contravenes the last preceding sub-section.
“(3.) Subject to the next succeeding sub-section, the Court has jurisdiction to hear and determine an application under the last preceding sub-section.
“(4.) An organization in respect of which an application is made under this section shall be given an opportunity of being heard by the Court.
“(5.) An order under this section may declare that the whole or a part of a rule contravenes sub-section (1.) of this section and, where such an order is made, the rule, or that part of the rule, as the case may be, shall be deemed to be void from the date of the order.
“(6.) The Court may, without prejudice to any other power of the Court to adjourn proceedings, adjourn proceedings in relation to an application under this section for such period and upon such terms and conditions as it thinks fit for the purpose of giving the organization an opportunity to alter its rules.”.
(
a ) by omitting sub-sections (1.) and (1a.) and inserting in their stead the following sub-sections:—“(1.) Any organization or person interested, or the Registrar, may apply to the Court for an order directing the cancellation of the registration of an organization on the ground that—
(
a ) the organization has been registered erroneously or by mistake;(
b )the rules of the organization fail to comply with or are contrary to a provision of this Act, the regulations or an award or are otherwise contrary to law;(
c ) the rules of the organization, in so far as they provide for a matter in accordance with the prescribed conditions, have not been observed;(
d ) the rules of the organization have been administered in such a manner that conditions, obligations or restrictions which, having regard to the objects of this Act and the purposes of the registration of organizations under this Act, are oppressive, unreasonable or unjust, have been imposed upon applicants for membership, or members, of the organization;(
e ) the proper authority of the organization has wilfully neglected to provide for the levying and collection of subscriptions, fees or penalties from members of the organization;(
f ) the accounts of the organization have not been duly audited or the accounts of the organization or of the auditor do not disclose the true financial position of the organization;(
g ) the organization has wilfully neglected to obey an order of the Court; or(
h ) the conduct of the organization (either in respect of its continued breach or non-observance of an award or its continued failure to ensure that its members comply with and observe an award or in any other respect), or the conduct of a sub-stantial number of the members of the organization (either in respect of their continued breach or non-observance of an award or in any other respect), has prevented or hindered the achievement of an object of this Act.“(2.) The Court has jurisdiction to hear and determine an application under the last preceding sub-section and if, after adjourning the proceedings for such period, if any, as it thinks fit—
(
a ) it finds that the ground of the application has been established; and(
b ) it does not consider that, having regard to the degree of gravity of the matters constituting that ground and the action, if any, that has been taken by or against the organization in relation to those matters, to do so would be unjust,it shall, subject to this section, by order direct the Registrar to cancel the registration of the organization.
“(3.) An organization in respect of which an application is made under this section shall be given an opportunity of being heard by the Court.
“(3a.) Where an application is made to the Court under sub-section (1.) of this section on the ground that the rules of an organization fail to comply with or are contrary to a provision of this Act, the regulations or an award or are otherwise contrary to law, the Court may, without prejudice to any other power of the Court to adjourn proceedings, adjourn the proceedings in relation to the application for such period and upon such terms and conditions as it thinks fit for the purpose of giving the organization an opportunity to alter its rules.
“(3b.) Where, upon the hearing of an application under this section in relation to an organization, the Court is satisfied that a rule of the organization contravenes sub-section (1.) of section one hundred and forty of this Act, the Court may, in lieu of making an order directing the cancellation of the registration
of the organization, make an order declaring that the whole or a part of the rule contravenes that sub-section and, where such an order is made, the rule, or that part of the rule, as the case may be, shall be deemed to be void, from the date of the order.
“(3c.) Where, upon the hearing of an application under this section in relation to an organization, the Court is satisfied that the rules of the organization have not been observed, the Court may, in lieu of directing the cancellation of the registration of the organization, make an order giving directions for the performance or observance of any of the rules of the organization by any person who is under an obligation to perform or observe those rules and has been given an opportunity of being heard in the proceedings.
“(3d.) A person shall not contravene or fail to comply with a direction given under the last preceding sub-section.
Penalty: Fifty pounds.
“(3e.) At any time at which there is in force a Proclamation declaring that the Commission may exercise powers under this sub-section, the Commission in Presidential Session may, upon the application of an organization or person interested or of the Registrar, direct the Registrar to cancel the registration of an organization if it considers that for any reason the registration of the organization ought to be cancelled, but the Commission shall not give such a direction upon a ground specified in the Proclamation as a ground upon which the powers of the Commission under this sub-section shall not be exercised.
“(3f.) Where the Court or the Commission has made an order under this section directing the cancellation of the registration of an organization, the Registrar shall cancel the registration of the organization accordingly.
“(3g.) The Registrar may, if he thinks it appropriate to do so in the circumstances, cancel the registration of an organization where—
(
a ) the number of the members of the organization or of their employees, as the case may be, would not entitle them to registration under section one hundred and thirty-two of this Act;(
b )the Registrar has satisfied himself, in accordance with the regulations, that the organization is defunct; or(
c ) the organization has, in accordance with, and in circumstances prescribed by, the regulations, requested that its registration be cancelled.”;(
b ) by omitting sub-section (5.) and inserting in its stead the following sub-sections:—“(5.) Upon cancellation of the registration of an organization, the organization and its members shall cease to be entitled to the benefits of any award which applies to the organization or its members and, upon the expiration of a period of twenty-one days after the cancellation of the registration of the organization, such an award shall, subject to any order to the contrary made by the Commission upon the application of any organization or person interested, cease in all other respects to have force or effect in relation to the organization and its members.
“(5a.) The powers of the Commission to make an order for the purposes of the last preceding sub-section are exercisable by the Commission constituted by the President.”; and
(
c ) by inserting in sub-section (6.), after the word “Court”, the words “, upon application by a person interested,”.
(
a ) by omitting sub-sections (4a.) and (5.) and inserting in their stead the following sub-sections:—“(5.) Where a question or dispute arises as to the entitlement under this section of a person to be admitted as, or to remain, a member of an organization, that person, a person who is or desires to become the employer of that person or the organization may apply to the Court for a declaration as to the entitlement of that first-mentioned person under this section.
“(5a.) Subject to sub-section (7.) of this section, the Court has jurisdiction to hear and determine an application under the last preceding sub-section and may, notwithstanding anything contained in the rules of the organization concerned, make such order to give effect to its determination as it thinks fit.”; and
(
b ) by adding at the end thereof the following sub-section:—“(7.) Where an application is made to the Court under this section—
(
a ) if the application is made otherwise than by a person whose entitlement is in question—that person shall be given an opportunity of being heard by the Court; and(
b ) if the application is made otherwise than by an organization—the organization concerned shall be given an opportunity of being heard by the Court.”.
“(2.) The regulations may provide that a person is not a competent person for the purposes of the last preceding sub-section in relation to all or any organizations, or branches of organizations, unless he is included in a prescribed class of persons.”.
“(3.) This section does not apply to or in relation to an election conducted under section one hundred and sixty-five a of this Act, an election in or in connexion with which a step is taken under that section or an election conducted under section one hundred and seventy of this Act.”.
(
a )by omitting from sub-section (3.) the words “, a Judge may authorize the Industrial Registrar, by himself or by a person acting on his behalf, to—” and inserting in their stead the words “and before the Industrial Registrar has referred the matter to the Court, the Industrial Registrar, by himself or by a person acting on his behalf, may—”;(
b ) by omitting from paragraph (e ) of sub-section (3.) the words “until the completion of the proceedings arising out of the application or until such earlier time as the Court or a Judge orders” and inserting in their stead the words “for such period as is necessary for the purposes of the application and, if proceedings under this Part have arisen out of the application, until the completion of the proceedings or until such earlier time as the Court orders”;(
c ) by omitting from sub-section (4.) the words “Before authorizing any action under the last preceding sub-section, the Judge shall” and inserting in their stead the words “Before taking any action under the last preceding sub-section, the Industrial Registrar shall”; and(
d ) by omitting from sub-section (6.) the word “Court” and inserting in its stead the word “Commission”
“162a.—(1.) At any time after an inquiry in connexion with an election has been instituted, the Court may authorize the Industrial Registrar, by himself or by a person acting on his behalf, to take, for the purposes of the inquiry, any action referred to in sub-section (3.) of section one hundred and sixty of this Act.
“(2.) Before authorizing any action under the last preceding sub-section, the Court shall, if it is of opinion that, having regard to all the circumstances, any person should be given an opportunity of objecting to the proposed action, give such an opportunity to that person.”.
(
a ) by adding at the end of paragraph (a ) of sub-section (4.) the word “and”;(
b ) by omitting from paragraph (b ) of sub-section (4.) the word “and “ (last occurring); and(
c ) by omitting paragraph (c ) of sub-section (4.).
“(3.) If the Court finds that an irregularity has occurred, the Court may, subject to the next succeeding sub-section, make one or more of the following orders:—
(
a ) an order declaring the election, or any step in or in connexion with the election, to be void;(
b ) an order declaring a person purporting to have been elected not to have been elected, and declaring another person to have been elected;(
c ) an order directing the Industrial Registrar to make arrangements—(i) in the case of an uncompleted election—for any step in or in connexion with the election (including the submission of nominations) to be taken again and for the uncompleted steps in the election to be taken; or
(ii) in the case of a completed election—for any step in or in connexion with the election (including the submission of nominations) to be taken again or for a new election to be held;
(
d )an order (including an order modifying the operation of the rules of the organization to the extent necessary to enable a new election to be held, a step in or in connexion with an election to be taken again or anuncompleted step in an election to be taken) incidental or supplementary to, or consequential upon, any order under this section.”.
“165a. Where
the Court makes an order referred to in paragraph (
“(6.) This section does not apply to or in relation to an election to be conducted under section one hundred and sixty-five a of this Act.”.
“170a.—(1.) A person conducting an election, or taking a step in or in connexion with an election, for an office in, or in a branch of, an organization under section one hundred and sixty-five a of this Act or under the last preceding section, may, notwithstanding anything contained in the rules of the organization or branch, take such action and give such directions as he considers necessary in order to ensure that no irregularities occur in or in connexion with the election or to remedy any procedural defects in those rules which appear to him to exist.
“(2.) A person shall not—
(
a ) refuse or fail to comply with a direction given under the last preceding sub-section; or(
b ) obstruct or hinder—(i) a person referred to in the last preceding sub-section in the performance of his functions in relation to an election or in the taking of any action under the last preceding sub-section; or
(ii) any other person in the carrying out of a direction under the last preceding sub-section.
Penalty: One hundred pounds or imprisonment for twelve months, or both.
“(3.) An election conducted under section one hundred and sixty-five a of this Act, a step taken under that section in or in connexion with an election or an election conducted under the last preceding section is not invalid by reason only—
(
a ) of a breach of the rules of the organization or branch involved in—(i) an act done under this section; or
(ii) an act done in compliance with a direction under this section; or
(
b ) in the case of an election conducted under the last preceding section, of an irregularity in the request in pursuance of which the election was conducted.
“(4.) Subject to sub-section (4.) of section one hundred and sixty-eight of this Act and to the next succeeding sub-section, the expenses of an election conducted under section one hundred and sixty-five a of this Act, of a step taken under that section in or in connexion with an election or of an election conducted under the last preceding section shall be borne by the organization or branch of the organization concerned.
“(5.) The expenses to which the last preceding sub-section applies do not include—
(
a ) the salary or other remuneration of an officer or employee of the Commonwealth performing any duty in relation to the election or the taking of the step in or in connexion with the election (including a person employed by the Commonwealth solely for the purposes of the election); or(
b ) expenses in connexion with the provision or use of premises provided by the Commonwealth for the purposes of the election or the taking of the step in or in connexion with the election (including premises obtained by the Commonwealth solely for those purposes).”.
“188a. If a member of an organization requests the secretary, or a person performing in whole or in part the duties of secretary, of the organization or of a branch of the organization, to furnish to the member a copy of the rules of the organization
or of the branch of the organization, the secretary or other person to whom the request is made shall, within seven days after that request is made and upon payment or tender by the member of such amount, not exceeding Two shillings, as the secretary or other person may require, furnish to the member a copy of the rules of the organization or branch, as the case may be, as in force at the time of the request or a copy of those rules as in force at an earlier time together with a copy of each amendment of the rules made since that time and before the time of the request.
Penalty: Ten pounds.”.
“(
ba ) for authorizing the making of orders with respect to the costs and expenses (including the expenses of witnesses) of proceedings before the Commission, other than proceedings under Divisions 1 to 5 (inclusive) of Part III., or before the Registrar;”.
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