Conciliation and Arbitration Act 1967 (Cth)

Conciliation and Arbitration

No. 101 of 1967

An Act to amend the Conciliation and Arbitration Act 1904–1966 in relation to Industrial Matters affecting Flight Crew Officers, and to alter the Title of that Act.

[Assented to 10 November 1967]

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

Short title and citation.

1.—(1.) This Act may be cited as the Conciliation and Arbitration Act 1967.

(2.) The Conciliation and Arbitration Act 1904–1966 is in this Act referred to as the Principal Act.

(3.) The Principal Act, as amended by this Act, may be cited as the Conciliation and Arbitration Act 1904–1967.

Commencement.

2.—(1.) Subject to this section, this Act shall come into operation on the day on which it receives the Royal Assent.

(2.) Sections 4, 5 and 6 of this Act shall come into operation on a date to be fixed by Proclamation.

Title.

3. The title of the Principal Act is repealed and the following title inserted in its stead:—

“An Act relating to the Prevention and Settlement of certain Industrial Disputes, and for other purposes.”.

Parts.

4. Section 3 of the Principal Act is amended by inserting before the words and figures—

“Part IV.—The Commonwealth Court of Conciliation and Arbitration (Sections 89–97).”

the words and figures—

“Part IIIa.—The Flight Crew Officers Industrial Tribunal (Sections 88h–88ze).”.

 

5. After Part III. of the Principal Act, the following Part is inserted:—

“Part IIIa.—The Flight Crew Officers Industrial Tribunal.

Definitions.

“88h. In this Part, unless the contrary intention appears—

‘declared body’ means a body in respect of which a declaration under section eighty-eight z of this Act is in force;

‘dispute’ includes—

(a) a threatened, impending or probable dispute;

(b) a part of a dispute;

(c) a dispute so far as it relates to a matter in dispute; or

(d) a question arising in relation to a dispute;

‘employer’ means a person (including an authority of the Commonwealth) carrying on a business in the course of which the person employs flight crew officers, not being a business the principal place of control of which is outside Australia;

‘employment’ means employment by an employer;

‘flight crew officer’ means a person who performs (whether with or without other duties) duties as a pilot, navigator or flight engineer of aircraft, and includes a person being trained for the performance of such duties;

‘inter-State industrial dispute’ means a dispute as to industrial matters that extends beyond the limits of any one State, but does not include such a dispute in so far as it is within the powers of the Tribunal under paragraph (b) of sub-section (1.) of section eighty-eight u of this Act;

‘industrial matters’ means all matters pertaining to the remuneration or other terms or conditions of service or employment of, or affecting or relating to work done or to be done by, flight crew officers employed or to be employed by employers;

‘industrial question’ means a dispute or question as to industrial matters, including an inter-State industrial dispute;

‘pilot’ includes a pilot in command, co-pilot or pilot of any other description;

‘the Tribunal’ means The Flight Crew Officers Industrial Tribunal established by this Part.

Establishment of Tribunal.

“88j. For the purposes of this Part, there shall be a tribunal to be known as ‘The Flight Crew Officers Industrial Tribunal’, which shall be constituted by a person appointed by the Governor-General.

 

Tenure of office.

“88k.—(1.) The person constituting the Tribunal holds office for such period, not exceeding five years, as is specified in the instrument of his appointment, but is eligible for re-appointment.

“(2.) The person constituting the Tribunal shall perform the functions of his office from time to time, as occasion requires.

“(3.) The person constituting the Tribunal is an employee for the purposes of the Commonwealth Employees’ Compensation Act 1930–1964.

Remuneration and allowances.

“88l. The person constituting the Tribunal shall be paid—

(a) such remuneration, whether by way of fees or otherwise, as is prescribed; and

(b) such allowances in respect of expenses as are prescribed.

Leave of absence.

“88m. The Minister may grant leave of absence to the person constituting the Tribunal on such conditions, including conditions as to remuneration, as the Minister thinks fit.

Oath or affirmation to office.

“88n. The person constituting the Tribunal shall, before proceeding to discharge the duties of his office, take, before a Judge of the Court, an oath or affirmation in accordance with the form in the Schedule to this Act.

Protection of Tribunal.

“88p. The person constituting the Tribunal has, in the performance of his functions and duties, the same protection and immunity as a Judge of the Court.

Suspension, removal and vacation of office of person constituting Tribunal.

“88q.—(1.) The provisions of section fourteen of this Act apply in relation to the suspension and removal from office of the person constituting the Tribunal in like manner as they apply in relation to a Commissioner.

“(2.) The provisions of section fifteen of this Act apply in relation to the office of the person constituting the Tribunal in like manner as they apply in relation to the office of a Commissioner, but as if paragraphs (a) and (d) were not included in that section.

Appointment of person to constitute Tribunal or particular matter.

“88r.—(1.) In relation to a particular industrial question, the Minister may, where—

(a)the person constituting the Tribunal is not available to deal with that industrial question;

(b) there is a vacancy in the office of that person; or

(c) the person constituting the Tribunal has requested the Minister to make an appointment under this section in the interests of the expeditious discharge of the business of the Tribunal,

 

appoint a person to perform the functions of the Tribunal in relation to that industrial question, and the person so appointed shall be deemed to constitute the Tribunal in relation to that industrial question.

“(2.) Sub-section (3.) of section eighty-eight k, and sections eighty-eight l, eighty-eight m, eighty-eight n and eighty-eight p, of this Act apply in relation to a person appointed under this section in like manner as they apply in relation to a person appointed under section eighty-eight j of this Act to constitute the Tribunal.

“(3.) Anything done by the Tribunal as constituted by a person appointed under this section, or by a person so appointed in his capacity as a person so appointed, shall not be challenged or called in question on the ground that—

(a) the occasion for the appointment had not arisen or had ceased; or

(b)the thing done related or extended to an industrial question other than that in relation to which the person was appointed.

Member of Commission may hold office under this Part.

“88s. Notwithstanding anything contained in this Act, a person may hold office at the one time as a member of the Commission and as a person appointed under section eighty-eight j or eighty-eight r of this Act, and, if a person so holds office—

(a)the holding by him of office under this Part, or his absence from duty as a member of the Commission for the purpose of performing duties under this Part, does not affect his office as a member of the Commission; and

(b) sections eighty-eight l and eighty-eight m of this Act do not apply in relation to him.

Powers of the Commission excluded.

“88t.—(1.) Subject to this section, the powers and functions of the Commission or a Commissioner, other than the powers of the Commission under sections forty-five, sixty-two and sixty-six of this Act, are not applicable in respect of industrial questions within the meaning of this Part.

“(2.) The last preceding sub-section does not prevent—

(a)the making of an award by the Commission as a result of a hearing completed before the date of commencement of this section; or

(b)the hearing and determination by the Commission of an appeal in respect of an award made before that date or made in accordance with the last preceding paragraph.

“(3.) Where, in respect of an industrial question, a hearing of proceedings before the Commission has been commenced, but not completed, before the date of commencement of this Act, sub-section (1.) of

 

this section does not apply in relation to the proceedings, or any appeal or reference arising out of the proceedings, if the parties to the proceedings request the Commission to continue the hearing.

“(4.) In proceedings before the Tribunal in relation to an industrial question, the Tribunal may have regard to any evidence given or arguments adduced in proceedings before the Commission in relation to the industrial question that were not completed.

“(5.) The operation of an award of the Commission, or of a memorandum of agreement certified by the Commission, that is in force immediately before the date of commencement of this Part, or of an award of the Commission made on or after that date in accordance with this section, is subject to any award of the Tribunal or memorandum of agreement certified under this Part.

Powers of Tribunal.

“88u.—(1.) The Tribunal is empowered—

(a)to make all such suggestions and do all such things as appear to it to be right and proper to encourage and assist the prevention or settlement by amicable agreement of industrial questions to which the powers of the Tribunal under the succeeding paragraphs of this sub-section extend;

(b)to consider and determine industrial questions in so far as the industrial matters concerned relate to one or more of the following:—

(i) employment of flight crew officers by the Australian National Airlines Commission;

(ii) employment of flight crew officers by Qantas Airways Limited;

(iii) trade and commerce with other countries or among the States, trade and commerce between a State and a Territory of the Commonwealth or trade and commerce in a Territory of the Commonwealth; and

(c) to prevent or settle, by conciliation or arbitration, inter-State industrial disputes.

“(2.) For the purposes of the last preceding sub-section but without limiting the operation of that sub-section, an industrial matter shall be deemed to relate to trade and commerce referred to in paragraph (b)of that sub-section in so far as the matter relates to employment of persons in or for, or for training in or for, the performance of duties as flight crew officers in relation to aircraft engaged in, or the performance of duties that include duties as flight crew officers in relation to aircraft engaged in, any such trade and commerce.

Application of other provisions of Act.

“88v.—(1.) Subject to this Part, Division 1 of Part III. applies to and in relation to industrial questions to the extent to which they are within

 

the powers of the Tribunal, and to and in relation to awards of the Tribunal as if, in that Division—

(a)references to industrial disputes were references to such industrial questions;

(b)references to the Commission, except in sections forty-five, sixty-two, sixty-six and sixty-eight, were references to the Tribunal;

(c) references to a member of the Commission, a Commissioner or the Commissioner (other than a reference to the Senior Commissioner) were references to the person constituting the Tribunal; and

(d)in relation to such an industrial question other than an inter-State industrial dispute—

(i) references to the parties to an industrial dispute were references to the parties to proceedings before the Tribunal in relation to the industrial question, and included, in section thirty-one, all the persons and organizations directly concerned in the industrial question;

(ii) references to preventing an industrial dispute were references to preventing the industrial question from arising;

(iii) references to settling an industrial dispute or determining an industrial dispute were references to determining, or otherwise settling, the industrial question; and

(iv) references to the hearing of an industrial dispute were references to the consideration of the industrial question;

(e) references to awards were references to awards of the Tribunal; and

(f) the reference in section sixty-six of this Act to proceedings under Part III. were a reference to proceedings under this Part.

“(2.) The last preceding sub-section does not apply in relation to the following sections contained in Division 1 of Part III., namely, sections twenty-two to twenty-seven, sub-section (1.) of section twenty-eight, sections thirty-three to thirty-eight, sections forty-one a, forty-four a, forty-nine, sixty-one, sixty-three, sixty-four, sixty-seven, sixty-nine and seventy.

“(3.) References to awards in provisions of this Act other than Division 1 of Part III. shall be read as including references to awards of the Tribunal.

“(4.) References to the Commission in the following sections of this Act, namely, sections one hundred and seven, one hundred and nineteen, one hundred and eighty-two, one hundred and eighty-three, one hundred and eighty-four, one hundred and eighty-six, one hundred and eighty-seven, one hundred and ninety-three and one hundred and ninety-eight shall be read as including references to the Tribunal.

Initiation of proceedings.

“88w. Subject to this Part, the Tribunal may exercise any of its powers—

(a) of its own motion;

 

(b)on the application of a person who, or an organization which, is a party to, or directly concerned in, an industrial question; or

(c) on the application of the Minister.

Parties.

“88x. The Tribunal may, by order, specify the parties to proceedings before the Tribunal and may give leave to other persons to intervene in the proceedings.

Representation of persons having a common interest.

“88y.—(1.) Where—

(a)in relation to proceedings before the Tribunal in respect of an industrial question it appears to the Tribunal that there are numerous flight crew officers who—

(i) are affected by the industrial question;

(ii) are not members of an organization that is a party to the proceedings and can conveniently represent their interests in the proceedings; and

(iii) have a like or common interest in the proceedings; and

(b)the Tribunal, after taking into account arrangements that have existed, whether in relation to the industrial question or not, for the representation of, or the forwarding of the interests of, those flight crew officers and after consulting or hearing such persons as it thinks necessary, is of opinion that—

(i) it is necessary or desirable, in order to enable the proceedings to be dealt with expeditiously, to make an order under this section; and

(ii) the order will allow a proper representation of, and protection of the interests of, those flight crew officers,

the Tribunal may make an order appointing a specified person or specified persons (who may be or include one or more of those flight crew officers) to be a party or parties to the proceedings representing those flight crew officers in the proceedings and, unless otherwise ordered by the Tribunal, a flight crew officer so represented is not a party to the proceedings.

“(2.) The Tribunal shall cause the publication or notification of the order in a manner that is, in its opinion, reasonably sufficient to bring it to the notice of the flight crew officers concerned.

“(3.) A flight crew officer who is or would be represented in accordance with an order made, or proposed to be made, under this section may, subject to any direction of the Tribunal, apply to the Tribunal to be a party to the proceedings and to be excluded from the operation of the order and, if the Tribunal is satisfied that the interests of that flight crew officer will not otherwise be adequately represented, the Tribunal shall order accordingly, subject to such conditions, if any, as the Tribunal determines, being conditions that, in the opinion of the Tribunal—

(a)are necessary in the interests of the expeditious hearing of the proceedings; and

 

(b)will not prejudice the proper and adequate presentation of matters relevant to the proceedings.

Declared bodies.

“88z.—(1.) Where, in the opinion of the Minister, an association or other body, whether corporate or not, not being an organization, exists or is carried on for the purpose, or for purposes that include the purpose, of furthering the interests, in relation to industrial matters, of flight crew officers who are members of the body, the Minister may, by notice published in the Gazette, declare the body to be a body to which this section applies.

“(2.) The following sections of this Act, namely sections eighty-eight w, eighty-eight za, eighty-eight zb, eighty-eight ze, one hundred and nine, one hundred and nine a, one hundred and ten, one hundred and eleven, one hundred and seventeen a, one hundred and nineteen, one hundred and thirty-eight and one hundred and eighty-eight, have effect as if a declared body were an organization.

“(3.) A declared body, whether incorporated or not, is capable of being a party to proceedings before the Tribunal.

“(4.) For the purpose of enforcing an order of the Court under this Act against a declared body, process may be issued and executed against any property of the declared body, or in which the declared body has, or any members of the declared body have in their capacity as such members, a beneficial interest, whether vested in trustees or howsoever otherwise held, as if the declared body were an incorporated company and the absolute owner of the property or interest.

“(5.) The last preceding sub-section applies in relation to an order of the Court against a person in respect of anything done or omitted in his capacity as an officer of, or person acting on behalf of, a declared body as if the order were an order against the declared body.

“(6.) A reference in either of the last two preceding sub-sections to property, interests in property, members or officers of, or persons acting on behalf of, a declared body shall be read as including a reference to property, interests in property, members or officers of, or persons acting on behalf of, a branch or part of the declared body.

Conciliation Committees.

“88za.—(1.) Where an organization or a person directly concerned in an industrial question requests the Tribunal to appoint a Conciliation Committee in relation to the industrial question and it appears to the Tribunal that the appointment of such a Committee is practicable and is reasonably likely to lead to a settlement of the industrial question, in whole or in part, the Tribunal may, in respect of the industrial question, appoint a Conciliation Committee consisting of—

(a) the person constituting the Tribunal, as Chairman;

(b) such number of persons as the Tribunal determines, being persons nominated by all or any employers concerned in the industrial question to be their representatives; and

 

(c)persons, equal in number to the persons appointed upon nomination in accordance with the last preceding paragraph, nominated by all or any of the flight crew officers concerned in the industrial question to be their representatives.

“(2.) For the purposes of this section, persons nominated by an organization of which any flight crew officers concerned in the industrial question are members, to be the representatives of those flight crew officers shall be deemed to have been so nominated by those flight crew officers, and shall be deemed also to represent the organization.

“(3.) The purpose of a Conciliation Committee is to endeavour, by discussion and negotiation, to formulate terms for a settlement of the industrial question.

“(4.) If the members of a Conciliation Committee, other than the Chairman, agree unanimously on terms for a settlement of the industrial question or a part of the industrial question, a memorandum of the agreement shall be made in writing and certified under the hand of the Chairman to be a true memorandum of terms agreed on in accordance with this sub-section.

“(5.) The Chairman may refuse to certify such a memorandum if he is of opinion that—

(a)the terms of settlement contain provisions which the Tribunal has no power to include in an award; or

(b) it is not in the public interest that the memorandum should be certified.

“(6.) A memorandum certified under this section has the same effect as, and shall be deemed to be, an award of the Tribunal binding on the persons and organizations who or which were represented by members of the Committee, the members from time to time of those organizations and any successor to, or any assignee or transmittee of, the business of such a person.

“(7.) The certificate of the Chairman in respect of a memorandum under this section shall specify, either individually or by reference to classes, the persons who, and the organizations which, were represented by members of the Committee, and such a certificate is evidence that those persons and organizations were so represented and that the agreement was arrived at, and the memorandum made, in accordance with this section.

“(8.) Where the Chairman is satisfied that further proceedings of the Committee are not likely to produce an agreement in accordance with this section within a reasonable time, he may terminate the proceedings of the Committee, and in that event the Tribunal may, having regard to the matters appearing from the proceedings of the Committee and after any further proceedings before the Tribunal that the Tribunal thinks necessary, make an award in relation to the industrial question.

 

“(9.) Nothing in this section excludes the operation of section thirty-one of this Act, as applied by this Part.

On whom awards binding.

“88zb.—(1.) An award of the Tribunal is binding on—

(a)the organizations, persons, and persons included in classes of persons, specified by the Tribunal in the award, or to which or to whom the Tribunal declares the award to extend by a declaration made after the making of the award;

(b) all members of organizations bound by the award; and

(c) where an employer is bound by the award—any successor to, or any assignee or transmittee of, the business of the employer, including a corporation that has acquired or taken over the business of the employer.

“(2.) An award shall not be expressed to bind, or be declared to extend to, an organization or person, or persons included in a class of persons, other than—

(a) an organization which, or a person who, appeared or was represented as a party to the proceedings in which the award or the declaration was made, or was represented by such a party in accordance with an order under section eighty-eight y of this Act;

(b)an organization which, or a person who, was required, by notice given either personally or as directed by the Tribunal, to appear or be represented in proceedings referred to in the last preceding paragraph, whether the organization or person appeared or not; or

(c) an organization, person, or persons included in a class of persons as to which or to whom the Tribunal is satisfied that the interests of that organization and of its members, the interests of that person, or the interests of persons included in that class of persons, as the case may be, in relation to the award, are substantially the same as those of an organization or person referred to in paragraph (a) or (b) of this sub-section.

“(3.) Subject to the last preceding sub-section, a class of persons specified in an award or declaration in accordance with sub-section (1.) of this section may be so specified as to include the persons who, from time to time, come within a specified description.

Relationship to other laws of the Commonwealth.

“88zc.—(1.) Subject to this section, the Tribunal or the person constituting the Tribunal shall not make an award, or certify a memorandum of an agreement, that is inconsistent with a law of the Commonwealth, or any instrument made or issued under such a law, and nothing contained in, or done under, this Part restricts the power conferred by a law of the Commonwealth to make or issue any instrument or the operation of an instrument made or issued under such a power.

 

“(2.) This section applies in relation to the Air Navigation Regulations in their operation by virtue of the law of a State in like manner as it applies in relation to those regulations in their operation as a law of the Commonwealth.

“(3.) An award of the Tribunal, or a memorandum of agreement certified by virtue of this Part, has effect notwithstanding section seventeen of the Australian National Airlines Act 1945–1966 or the prescribed provisions of any other Act, being provisions relating to the terms and conditions of employment of persons employed by an authority of the Commonwealth.

Application of Division in relation to certain disputes extending beyond one State.

“88zd. Notwithstanding anything contained in this Part, the Tribunal or the person constituting the Tribunal—

(a)shall not, in relation to an interstate industrial dispute, do any act or thing otherwise than by way of, or for the purposes of, conciliation or arbitration for the prevention or settlement of the dispute; and

(b) may—

(i) adopt, or direct the adoption of, such procedures; and

(ii) make such orders with respect to the operation of any award, or of any memorandum having the force of an award,

as are necessary to ensure the observance of the last preceding paragraph.

Representation.

“88ze.—(1.) In proceedings before the Tribunal, a party or intervener—

(a)being an organization, may be represented by a member or officer of the organization; or

(b) not being an organization, may be represented—

(i) by an employee of that party or intervener;

(ii) by a member or officer of an organization of which that party or intervener is a member; or

(iii) in such other manner as the Tribunal allows,

but, subject to the next succeeding sub-section, a party or intervener shall not be represented by counsel, solicitor or paid agent except by leave of the Tribunal and with the consent of all parties.

“(2.) Where the Minister has been granted leave to intervene in proceedings before the Tribunal, he may be represented by counsel,

 

solicitor or paid agent and, if the Minister is so represented, a party or another intervener may, with the leave of the Tribunal, also be represented by counsel, solicitor or paid agent.”.

Hearing of certain applications not to be commenced unless certain conditions fulfilled.

6. Section 109a of the Principal Act is amended—

(a) by omitting from paragraph (a) of sub-section (4.) the word “and”; and

(b) by inserting after that paragraph the following paragraph:—

“(aa)