Conciliation and Arbitration Amendment Act 1976 (Cth)

CONCILIATION AND ARBITRATION AMENDMENT ACT 1976

No. 64 of 1976

 

An Act relating to Conciliation and Arbitration.

 

BE IT ENACTED by the Queen, and the Senate and 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 Amendment Act 1976.

(2) The Conciliation and Arbitration Act 1904-1975, as amended by the Conciliation and Arbitration Act 1976, is in this Act referred to as the Principal Act.

(3) Section 1 of the Conciliation and Arbitration Act 1976 is amended by omitting sub-section (3).

(4) The Principal Act, as amended by this Act, may be cited as the Conciliation and Arbitration Act 1904-1976.

Commencement.

2. (1) Sections 1, 2 and 11, and section 15, so far only as it amends sections 4 and 103b of the Principal Act, shall come into operation on the day on which this Act receives the Royal Assent.

(2) The remaining amendments made by, and other provisions of, this Act shall come into operation on such respective dates as are fixed by Proclamation, and such a Proclamation may apply to a part of an amendment.

Interpretation.

3. Section 4 of the Principal Act is amended—

(a) by inserting in sub-section (1), after the definition of “Deputy President”, the following definition:—

“‘Direct voting system’, in relation to an election for an office in an organization, means a method of election of the kind referred to in paragraph (a) of sub-section (1) of section 133;”;

(b) by inserting in sub-section (1), after the definition of “Organization”, the following definition:—

“‘Postal ballot’ means a ballot for the purposes of which a ballot paper is to be sent by prepaid post to each person entitled to vote and facilities are to be provided for the return of the completed ballot paper by post by the voter without expense to him;”; and

(c) by adding at the end thereof the following sub-section: —

“(4) A reference in this Act to an office in, or an office within, an association or organization shall, unless the contrary intention appears, be read as including a reference to an office in a branch of the association or organization.”.

Reference of disputes to Full Bench.

4. Section 34 of the Principal Act is amended by omitting from subsection (3) all the words down to and including the words “may apply” and substituting the words “Where an industrial dispute is being dealt with by a member of the Commission (in this section referred to as ‘the member concerned ’), a party to the industrial dispute or the Minister may apply”.

5. (1) After section 36 of the Principal Act the following section is inserted: —

Review on application by Minister.

“36a. (1) In this section, unless the contrary intention appears—

‘member’ means a member of the Commission;

‘the Commission’ means a Full Bench of the Commission.

 

“(2) The Minister may apply to the Commission for a review of—

(a) an award made by a member, including an award made under section 28; or

(b) a decision of a member to certify a memorandum under section 28,

where it appears to the Minister that the award or decision is contrary to the public interest.

“(3) An application under sub-section (2) shall be made within 21 days after the date of the award or decision to which it relates and shall state the reasons for which the Minister seeks the review.

“(4) Where an application is made under sub-section (2), the Commission shall make such review of the award or decision as appears to it to be desirable having regard to the matters referred to in the application.

“(5) The provisions of sub-sections (3), (8), (9), (10) and (11) of section 35 apply to and in relation to a review under this section in like manner as they apply to and in relation to an appeal under that section.

“(6) In a review under this section—

(a) the parties to the proceedings in which the award or decision was made are parties to the proceedings on the review and are entitled to notice of the hearing accordingly; and

(b) the Minister is a party to the proceedings.

“(7) Nothing in this section affects any right of appeal or any power of the Commission under section 35, and an appeal under that section and a review under this section may, if the Commission thinks fit, be dealt with together.”.

(2) An application under sub-section (2) of section 36a of the Principal Act, as amended by this Act, may, subject to sub-section (3) of that section, be made in respect of an award or decision made or given before the commencement of this section.

Manner of settlement of disputes.

6. Section 39 of the Principal Act is amended by omitting sub-section (2) and substituting the following sub-section:—

“(2) In proceedings before the Commission under section 31, 34, 35 or 36a, the Commission shall take into consideration the public interest and for that purpose shall have regard to the state of the national economy and the likely effects on that economy of any award that might be made in the proceedings or to which the proceedings relate, with special reference to likely effects on the level of employment and on inflation.”.

Representation of parties.

7. Section 63 of the Principal Act is amended—

(a) by omitting from sub-section (1) the words “the next succeeding sub-section” and substituting the words “sub-sections (1a) and (2)”;

(b) by inserting after sub-section (1) the following sub-section:—

“(1a) In proceedings before the Commission in which the Minister is a party or intervener, he may be represented by counsel or solicitor or by an officer of the Australian Public Service authorized by the Minister to represent him.”; and

(c) by inserting in sub-section (2), after the word “Minister”, the words “is a party to or”.

Representation.

8. Section 88ze of the Principal Act is amended by omitting from sub-section (2) the words “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 substituting the words “Where the Minister is a party to or has intervened in proceedings before the Tribunal, he may be represented by counsel or solicitor or by an officer of the Australian Public Service authorized by the Minister to represent him”.

Reference of industrial questions to Full Bench of Commission.

9. Section 88zf of the Principal Act is amended by omitting from sub-section (2) all the words down to and including the words “may apply” and substituting the words “Where an industrial question is being dealt with under this Part, a party to the proceedings in respect of the industrial question or the Minister may apply”.

10. (1) After section 88zg of the Principal Act the following section is inserted: —

Review on application by Minister.

“88zga. (1) In this section, unless the contrary intention appears, ‘the Commission’ means a Full Bench of the Commission.

“(2) The Minister may apply to the Commission for a review of—

(a) an award made by the Tribunal, including an award made under section 28 as applied by this Part; or

(b) a decision of the Tribunal to certify a memorandum under section 28 as applied by this Part, or a decision of the Chairman of a Conciliation Committee to certify a memorandum under section 88za,

where it appears to the Minister that the award or decision is contrary to the public interest.

“(3) An application under sub-section (2) shall be made within 21 days after the date of the award or decision to which it relates and shall state the reasons for which the Minister seeks the review.

“(4) Where an application is made under sub-section (2), the Commission shall make such review of the award or decision as appears to it to be desirable having regard to the matters referred to in the application.

“(5) The provisions of sub-sections (3), (5), (6), (7), (8) and (9) of section 88zg apply to and in relation to a review under this section in like manner as they apply to and in relation to an appeal under that section.

“(6) The reference in sub-section (2) of section 39 to section 36a shall be read as including a reference to this section.

“(7) In a review under this section—

(a) the parties to the proceedings in which the award or decision was made are parties to the proceedings on the review and are entitled to notice of the hearing accordingly; and

(b) the Minister is a party to the proceedings.

“(8) Nothing in this section affects any right of appeal or any power of the Commission under section 88zg, and an appeal under that section and a review under this section may, if the Commission thinks fit, be dealt with together.”.

(2) An application under sub-section (2) of section 88zga of the Principal Act, as amended by this Act, may, subject to sub-section (3) of that section, be made in respect of an award or decision made or given before the commencement of this section.

Constitution of Court.

11. Section 98 of the Principal Act is amended by omitting from paragraph (a) the number “10” and substituting the number “11”.

Rules to provide for elections, secret postal ballots and certain other matters.

12. Section 133 of the Principal Act is amended—

(a) by inserting after paragraph (d) of sub-section (1) the following paragraphs: —

“(da) shall, in the case of an association applying for registration on or after the commencement of this paragraph, provide that every election for an office within the association of a kind referred to in paragraph (a), (aa), (b) or (c) of the definition of ‘office’ in sub-section (1) of section 4 shall be by postal ballot;

“(db) shall not permit a person to be elected to hold an office within the association or organization for a period exceeding 4 years without being re-elected; ”;

 

(b) by inserting after sub-section (4b) the following sub-sections:—

“(4c) Notwithstanding sub-sections (3) and (4), an association which was registered as an organization on the date of commencement of this sub-section is allowed a period of 12 months after that date within which to bring its rules into conformity with the requirements of paragraph (db) of sub-section (1).

“(4d) If the rules of an organization to which sub-section (4c) 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 paragraph (db) of sub-section (1), 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.”; and

(c) by omitting from sub-section (5) the words “sub-section (4) or (4b)” and substituting the words “sub-section (4), (4b) or (4d)”.

13. After section 133 of the Principal Act the following section is inserted:—

Elections to be by postal vote.

“133aa. (1) Every election by a direct voting system for an office within an organization, being an office that is included in paragraph (a), (aa), (b) or (c) of the definition of ‘office’ in sub-section (1) of section 4, shall be by secret postal ballot.

“(2) The regulations may make provision for and in relation to the conduct of an election in accordance with the requirements of this section in the case of an election in respect of which the rules of the organization do not provide for a secret postal ballot.

“(3) Where the rules of an organization as in force at the commencement of this section provide for an election or elections to which this section applies to be by a secret ballot other than a postal ballot, the Industrial Registrar may, upon application by the organization in accordance with the regulations, by instrument under his hand, exempt the organization, in respect of an election, from the application of this section if he is satisfied that the conduct of the election in accordance with those rules—

(a) is likely to result in a fuller participation by members of the organization in the ballot than would result from a postal ballot; and

(b) will afford to members entitled to vote an adequate opportunity of voting without intimidation.

“(4) Sub-section (1) of section 88f does not apply to a decision of the Registrar under this section.

“(5) This section, and the regulations made for the purposes of this section, have effect notwithstanding anything contained in the rules of an organization.

“(6) This section does not apply to an election any step in which was taken, in accordance with the rules of the organization, before the date of commencement of this section.”.

Regulations.

14. Section 198 of the Principal Act is amended by inserting in sub-section (1), after paragraph (c), the following paragraph:—

“(ca) for and in relation to requiring, or authorizing a prescribed person to require, the furnishing by all or any organizations of information concerning matters relevant to the conduct of elections for officers in organizations and branches of organizations; ’’.

Formal and consequential amendments.

15. The Principal Act is amended as set out in the Schedule.

__________

 

SCHEDULE Section 15
FORMAL AND CONSEQUENTIAL AMENDMENTS
Provision	Amendment
Sub-section 4(1)............................	Omit the definition of “The Trade Practices Tribunal”, substitute the following definition:—
“‘The Trade Practices Tribunal’ means the tribunal of that name at any time established or continued in existence by a law of the Commonwealth.”.
Sub-sections 12(1) and (3)............	Omit “Public Service of the Commonwealth”, substitute “Australian Public Service”.
Sub-section 41a(2)........................	Omit from paragraph (a) “section 34 or section 35”, substitute “section 34, 35 or 36a”.
Sub-sections 73(3), 78(3), 84(2a) and 88ca (3)..................................		Omit “and 35”, substitute “, 35 and 36a”.
Section 88zh...................................		Omit “section 88zg”, substitute “sections 88zg and 88zga”.
Sub-section 103b(2).......................		Omit “the Restrictive Trade Practices Act 1971”, substitute “the Trade Practices Act 1974