Conciliation and Arbitration Act (No. 2) 1951 (Cth)

CONCILIATION AND ARBITRATION (No. 2).

No. 18 of 1951.

An Act to amend the Conciliation and Arbitration Act 1904–1950.

[Assented to 19th. July, 1951.]

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

Short title and citation.

1.—(1.) This Act may be cited as the Conciliation and Arbitration Act (No. 2) 1951.

(2.) The Conciliation and Arbitration Act 1904–1950 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 1904–1951.

Commencement.

2. This Act shall come into operation on the day on which it receives the Royal Assent.

 

Definitions.

3.Section four of the Principal Act is amended by inserting after paragraph (a) of the definition of “Office” the following paragraph :—

“(aa)the office of president, vice-president, secretary, assistant-secretary or other executive officer, by whatever name called, of the organization or branch; “.

Limitation of Jurisdiction of Conciliation Commissioners.

4.Section thirteen of the Principal Act is amended by omitting paragraph (c) and inserting in its stead the following paragraph :—

“(c) providing for, or altering a provision for, annual or other periodical leave with pay, sick leave with pay or long service leave with pay; “.

Jurisdiction of Court with respect to certain matters.

5.Section twenty-five of the Principal Act is amended by omitting paragraph (c) and inserting in its stead the following paragraph :—

“(c) providing for, or altering a provision for, annual or other periodical leave with pay, sick leave with pay or long service leave with pay; “.

Powers of the Court.

6.Section twenty-nine of the Principal Act is amended—

(a) by omitting paragraph (c) and inserting in its stead the following paragraph:—

“(c) by order, to enjoin an organization or person from committing or continuing a contravention of this Act or a breach or non-observance of an order or award;”; and

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

“(2.) The Attorney-General may, on behalf of the Commonwealth and in the public interest, apply to the Court for an order under paragraph (b) or (c) of the last preceding sub-section but this sub-section does not prejudice any right which any other person has to apply for such an order.

“(3.) Without prejudice to the operation of any provision of any other law providing for the enforcement of orders or awards referred to in this sub-section, the powers of the Court under paragraphs (b) and (c) of sub-section (1.) of this section apply also in relation to orders or awards made by the Court under the Stevedoring Industry Act 1949 (including orders made under section thirty-four of that Act) and orders or awards made in pursuance of a law of the Commonwealth other than this Act by a prescribed tribunal empowered by that law to exercise functions or powers of conciliation or arbitration (including provisions in force by virtue of any such order or award).”.

7.After section twenty-nine of the Principal Act the following section is inserted :—

Contempt of the Court.

“29a.—(1.) The Court has the same power to punish contempts of its power and authority, whether in relation to its judicial powers and functions or otherwise, as is possessed by the High Court in respect of contempts of the High Court.

“(2.) The jurisdiction of the Court to punish a contempt of the Court committed in the face or hearing of the Court, when constituted

 

by a single Judge, may be exercised by that Judge; in any other case, the jurisdiction of the Court to punish a contempt of the Court shall (without prejudice to the operation of sub-section (3.) of section twenty-four of this Act) be exercised by not less than three Judges.

“(3.) The Court has power to punish, as a contempt of the Court, an act or omission although a penalty is provided in respect of that act or omission under some other provision of this Act.

“(4.) The maximum penalty which the Court is empowered to impose in respect of a contempt of the Court consisting of a failure to comply with an order of the Court made under paragraph (b) or (c) of the last preceding section is—

(a) where the contempt was committed by—

(i) an organization (not consisting of a single employer) —Five hundred pounds; or

(ii) an employer, or the holder of an office in an organization, being an office specified in paragraph (a), (aa), or (b) of the definition of ‘Office’ in section four of this Act—Two hundred pounds or imprisonment for twelve months; or

(b) in any other case—Fifty pounds.”.

Continuance of awards.

8. Section forty-eight of the Principal Act is amended—

(a) by inserting after sub-section (2.) the following sub-section :—

“(2a.) 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.”; and

(b) by omitting from sub-section (3.) the words “the last preceding sub-section” and inserting in their stead the words “subsection (2.) of this section”.

9.After section seventy of the Principal Act the following section is inserted :—

Rules to provide for secret ballots.

“70a.—(1.) In addition to the conditions referred to in sub-section (2.) of the last preceding section, the conditions to be complied with by associations applying for registration as organizations, and, subject to this section, by organizations, include a condition that the rules of the association or organization relating to an election for an office in the association or organization or in a branch of the association or organization (being an office specified in paragraph (a), (aa) or (b) of the definition of ‘Office’ in section four of this Act)—

(a) shall provide that the election shall be by secret ballot; and

(b) shall make provision for—

(i) absent voting;

(ii) the manner in which persons may become candidates for election;

(iii) the appointment, conduct and duties of returning officers;

 

(iv) the conduct of the ballot;

(v) the appointment, conduct and duties of scrutineers to represent the candidates at the ballot; and

(vi) the declaration of the result of the ballot,

and a condition that those rules shall be such as will ensure, as far as practicable, that no irregularity can occur in connexion with the election.

“(2.) Without prejudice to the operation of section eighty of this Act, the rules of an association applying for registration, or of an organization, relating to any such election may provide for compulsory voting.

“(3.) An association which is registered as an organization at the date of commencement of this section is allowed a period of three months after that date, or such longer period as the Industrial Registrar determines, within which to bring its rules into conformity with the requirements of sub-section (1.) of this section.

“(4.) If the rules of an organization to which the last preceding sub-section applies do not, at the expiration of the period allowed by that sub-section, in the opinion of the Industrial Registrar, conform with the requirements of sub-section (1.) of this section, the Industrial Registrar may, after inviting the organization to consult with him on the matter, determine such alterations of the rules as will, in his opinion, bring them into conformity with those requirements.

“(5.) The Industrial Registrar shall register the alterations so determined by him, and thereupon the rules shall be deemed to be altered accordingly.

“(6.) A reference in this section to the rules of an organization shall be read as including a reference to the rules of a branch of the organization.”.

10.Section seventy-two of the Principal Act is repealed and the following section inserted in its stead:—

Court may order secret ballots.

“72. Where—

(a) an organization is a party to or concerned in an industrial dispute with respect to which the Court or a Conciliation Commissioner or some other tribunal acting in pursuance of a law of the Commonwealth is empowered to exercise functions or powers of conciliation or arbitration (whether or not proceedings in relation to the dispute are before the Court, a Conciliation Commissioner or any such tribunal); and

(b) the Court 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 Court 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 Court.”.

 

11.Section seventy-eight of the Principal Act is repealed and the following section inserted in its stead :—

Incitement to boycott award forbidden.

“78.—(1.) An officer, servant or agent, or a member of a committee, of an organization or branch of an organization shall not, during the currency of an award—

(a) advise, encourage or incite a member of an organization which is bound by the award to refrain from, or prevent or hinder such a member from—

(i) entering into a written agreement;

(ii) accepting employment; or

(iii) offering for work, or working,

in accordance with the award or with an employer who is bound by the award;

(b) advise, encourage or incite such a member to make default in compliance with the award;

(c) prevent or hinder such a member from complying with the award;

(d) advise, encourage or incite such a member to retard, obstruct or limit the progress of work to which the award applies by ‘go slow’ methods; or

(e) advise, encourage or incite such a member—

(i) to perform work to which the award applies in a manner different from that customarily applicable to that work; or

(ii) to adopt a practice in relation to that work,

where the result would be a limitation or restriction of output or production or a tendency to limit or restrict output or production.

“(2.) The last preceding sub-section extends to advice, encouragement, incitement, prevention or hindrance in relation to employment or work with or for a particular employer or of a particular kind.

“(3.) In a prosecution for a contravention of this section it is a defence to prove that there were’ reasonable grounds for the conduct charged, being grounds—

(a) unrelated to the terms and conditions of employment prescribed by the award; or

(b) arising out of a failure or proposed failure by an employer to observe the award.

“(4.) Notwithstanding the provisions of section one hundred and nineteen of this Act, a person who has committed an offence against this section shall not be charged before the Court.

“(5.) In this section ‘award’ includes an order or award prescribing, directly or indirectly, terms and conditions of employment and made by the Court under any provision of the Stevedoring Industry Act 1949 (including section thirty-four of that Act) or made in

 

pursuance of a law of the Commonwealth other than this Act by a prescribed tribunal empowered by that law to exercise functions or powers of conciliation or arbitration, and also includes provisions in force by virtue of any such order or award.

Penalty : One hundred pounds.”.

12.Section ninety-one of the Principal Act is repealed and the following section inserted in its stead:—

Records to be kept and filed by organizations.

“91.—(1.) An organization shall keep the following records :—

(a) a register of its members, arranged according to branches, containing the name and address of each member (the address being, in the case of an individual, his place of residence and, in the case of a body corporate, the address of its registered office) and the date upon which each member became a member;

(b) a list of the names, postal addresses and occupations of the persons holding offices in the organization and in each branch of the organization, being offices specified in paragraph (a), (aa) or (b) of the definition of ‘Office’ in section four of this Act;

(c) an account, in proper form, of the receipts, payments, funds and effects of the organization and of each branch of the organization; and

(d) such other records as are prescribed.

Penalty : Ten pounds for each week of default.

“(2.) An organization shall, within three months after the date upon which it became registered or after the commencement of this section (whichever is the later), or within such longer time as the Registrar allows, file with the Registrar a copy of the register of its members as at the quarter day next preceding the date on which the copy is filed.

Penalty : Ten pounds for each week of default.

“(3.) An organization which has filed with the Registrar a copy of the register of its members shall, during the month next following each quarter day (commencing with the quarter day next following the date on which the copy register was filed) file with the Registrar a statement giving, in respect of the period of three months ending on that quarter day, particulars of the alterations made in the register of its members.

Penalty : Ten pounds for each week of default.

“(4.) An organization shall file with the Registrar once in each year, at such time as is prescribed, a copy of the records required to be kept under paragraphs (b), (c) and (d) of sub-section (1.) of this section, certified by statutory declaration by the Secretary or other prescribed officer of the organization to be a correct statement of the information contained therein.

Penalty : Ten pounds for each week of default.

 

“(5.) An organization shall, at all times during which a person is a member of the organization, keep a duplicate or butt of the latest union ticket issued to him, showing his name and usual place of residence and, if he is temporarily living away from his usual place of residence on the date when the ticket is issued to him, the place where he is so living at that date.

Penalty : Twenty pounds.

“(6.) The Court, constituted by a single judge, may at any time order such rectifications of the register of members of an organization, and of the copy of the register kept by the Registrar, as it considers necessary.

“(7.) All documents filed with the Registrar under this section shall be made available for inspection at the office of the Registrar as prescribed.

“(8.) The register of members of an organization shall be made available by the organisation for inspection, during the usual office hours, by any person authorized by the Registrar, at the office of the organization or, in the case of a part of the register which is kept at the office of a branch of the organization, at that office.

Penalty : Twenty pounds.

“(9.) A register, list, account or other record required by this section to be kept by an organization may, so far as it relates to a branch of the organization, be kept in a separate part or section at the office of the branch.

“(10.) The regulations may make provision with respect to the manner in which records are to be kept for the purposes of this section, and the records shall be deemed not to be duly kept unless they are kept in accordance with any such regulations.

“(11.) In this section—

‘quarter day’ means the last day of the month of March, June, September or December;

‘union ticket’ includes a receipt or other document acknowledging or certifying that a person is a member or has renewed his membership of the organization or has paid any dues or other moneys payable in respect of his membership of the organization or the renewal of his membership.”.

Functions and power of Court.

13. Section ninety-six g of the Principal Act is amended by adding at the end of paragraph (c) of sub-section (3.) the words “or with those rules as varied or added to in such manner as the Court thinks necessary to rectify procedural defects in those rules which appear to the Court to exist”.

14. Section ninety-six m of the Principal Act is repealed and the following section inserted in its stead:—

Registrar to conduct elections upon request.

“96m.—(1.) An organization or a branch of an organization may, in writing, request the Industrial Registrar that an election for an

 

office in the organization or in the branch (as the case may be) be conducted under this section with a view to ensuring that no irregularity occurs in or in connexion with the election.

“(2.) For the purposes of the last preceding sub-section, a request by an organization or branch may be made—

(a) by or on behalf of the committee of management of the organization or of the branch, as the case may be; or

(b) by a number, ascertained as prescribed, of the members of the organization or of the branch, as the case may be.

“(3.) The regulations may make provision with respect to the times at which requests may be made under this section.

“(4.) Where a request is made or purports to be made under this section, the Industrial Registrar shall, after making such inquiries (if any) as he considers necessary, decide whether or not the request has been duly made.

“(5.) Where the Industrial Registrar decides that a request has been duly made under this section, he shall inform the organization or branch accordingly, and may conduct the election, direct a Deputy Industrial Registrar or other officer employed in a Registry to conduct the election, or may make arrangements with the Chief Electoral Officer for the Commonwealth for the conduct of the election by a Commonwealth Electoral Officer or a Returning Officer holding office under the Commonwealth Electoral Act 1918–1949.

“(6.) Notwithstanding anything contained in the rules of the organization or branch, the person conducting the election may 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.

“(7.) 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) the person conducting an election under this section in the conduct of the election or 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.

“(8.) The provisions of this Division relating to inquiries do not apply in relation to an election conducted under this section.

 

“(9.) An election conducted under this section is not invalid by reason only of an irregularity in the request in pursuance of which the election was conducted or by reason of a breach of the rules of the organization or branch involved in an act done, or in compliance with a direction given, under this section.

“(10.) The expenses of an election conducted under this section (but not including the salary of any officer of the Commonwealth performing any duty in relation to the election) shall be borne by the organization or branch of the organization concerned.

“(11.) In any proceedings in connexion with anything done or proposed to be done by reason of a request made or purporting to be made under this section in relation to an organization or a branch of an organization, the copy of the register of members of that organization filed with the Registrar, as varied in accordance with any statements filed under sub-section (3.) of section ninety-one of this Act before the date upon which the request was made, is prima facie evidence that the persons shown in that copy register, as so varied, as the members of the organization or branch were, at the date on which the request was made, the members of the organization or branch, as the case may be.”.

Court may impose penalties for offences.

15.Section one hundred and nineteen of the Principal Act is amended by adding at the end thereof the following sub-section :—

“(2.) Proceedings before the Court under this section may be instituted by summons issued upon information, without indictment.”.