Conciliation and Arbitration Regulations (Amendment) (Cth)

STATUTORY RULES

1967 No. 35

 

REGULATIONS UNDER THE CONCILIATION AND ARBITRATION ACT 1904-1966.*

I, THE GOVERNOR-GENERAL in and over the Commonwealth of Australia, acting with the advice of the Federal Executive Council, hereby make the following Regulations under the Conciliation and Arbitration Act 1904-1966.

Dated this twenty-eighth day of March, 1967.

CASEY

Governor-General.

By His Excellency’s Command,

Attorney-General

and for and on behalf of the Minister of State for Labour and National Service.

 

Amendments of the Conciliation and Arbitration Regulations 

Parts.

1. Regulation 3 of the Conciliation and Arbitration Regulations is amended by omitting the words—

“Division 5.—Costs (Regulations 96-98).”

and inserting in their stead the words—

“Division 5.—Costs (Regulations 96-98a).”

2. After regulation 41 of the Conciliation and Arbitration Regulations the following regulation is inserted:—

Notifications under section 109a of the Act.

“41a.—(1.) Where a notification referred to in paragraph (a) of sub-section (1.) of section 109a of the Act is given orally to a Commissioner or to a presidential member of the Commission, the Commissioner or the presidential member of the Commission shall—

(a) record in writing the particulars contained in the notification and the time at which and the date on which the notification was given; and

(b) sign the record.

“(2.) Where a notification referred to in paragraph (a) of sub-section (1.) of section 109a of the Act is given to the Commissioner or a presidential member of the Commission otherwise than orally, the Commissioner or the presidential member of the Commission shall endorse on the notification a record of the time at which and the date on which the notification was received by him and shall sign the endorsement.

 

* Notified in the Commonwealth Gazette on  , 1967.

  Statutory Rules 1956, No. 60, as amended by Statutory Rules 1957, No. 78; 1958, Nos. 7 and 53; 1959, No. 19; 1960, No. 86; 1961, No. 123; and 1963, No. 14.

8450/66.—Price —5c  12/17.3.1967

 

“(3.) An application for a certificate by a Commissioner or a presidential member of the Commission under sub-paragraph (ii) of paragraph (b) of sub-section (1.) of section 109a of the Act shall be in writing and shall, if the Commissioner or the presidential member of the Commission so requests, set out the grounds upon which it is claimed that there was reasonable cause for delay in giving the notification referred to in paragraph (a) of sub-section (1.) of that section.

“(4.) Where a Commissioner or a presidential member of the Commission is satisfied that there was reasonable cause for delay in giving the notification referred to in paragraph (a) of sub-section (1.) of section 109a of the Act, the Commissioner or the presidential member of the Commission shall endorse on, or attach to, the record of the oral notification or the notification, as the case requires, a certificate that he is so satisfied and shall date and sign the certificate.

“(5.) A Commissioner or a presidential member of the Commission to whom a notification referred to in paragraph (a) of sub-section (1.) of section 109a of the Act is given shall forward the record of the notification or the notification, as the case requires, to the Registrar who shall file it.

“(6.) A Commissioner or a presidential member of the Commission to whom a notification referred to in paragraph (a) of sub-section (1.) of section 109a of the Act has been given, may, by instrument under his hand, certify that a document annexed to the certificate—

(a) contains a true copy of the record of the notification, or a true copy of the notification, as the case requires, received by him; and

(b) contains a true copy of the endorsement or attachment made, in accordance with this regulation, by him on, or to, the record or the notification.

“(7.) A certificate under the last preceding sub-regulation is evidence of the facts stated in the certificate.”.

Procedure under section 109 (1.) (a) or (b), 140, 141, 143 (1.) or150.

3. Regulation 70 of the Conciliation and Arbitration Regulations is amended by inserting after sub-regulation (2.) the following sub-regulation:—

“(2a.) Where an application is made for an order under paragraph (b) of sub-section (1.) of section 109 of the Act to enjoin an organization or person from committing a breach or non-observance of an award, the application shall also be supported by an affidavit verifying such facts as are necessary to establish that the Court is not prevented by section 109a of the Act from commencing the hearing of the application for the order.”.

4. After regulation 96 of the Conciliation and Arbitration Regulations, the following regulations are inserted:—

Restriction on costs in relation to applications under section 109 of the Act.

“96a.—(1.) This regulation does not apply to and in relation to an order directing the payment of costs on the hearing of an application by the Attorney-General for an order under paragraph (a) or paragraph (b) of sub-section (1.) of section 109 of the Act.

 

“(2.) The Court shall not make an order directing payment to the applicant of his costs in respect of any application made for an order under paragraph (b) of sub-section (1.) of section 109 of the Act to enjoin an organization or person from committing a breach or non-observance of an award.

“(3.) Where—

(a) an application is made for an order under paragraph (a) of sub-section (1.) of section 109 of the Act directing compliance with an award proved to the satisfaction of the Court to have been broken or not observed; or

(b) an application is made for an order under paragraph (b) of sub-section (1.) of section 109 of the Act to enjoin an organization or person from continuing a breach or non-observance of an award,

the Court shall not, except as provided by the succeeding provisions of this regulation, make an order directing payment of the applicant’s costs.

“(4.) The Court may make an order directing payment of the applicant’s costs if, on the hearing of an application referred to in the last preceding sub-regulation, it is established that the breach or non-observance of the award took place without any prior notice being given to the applicant, or to an organization bound by the award of which the applicant is a member, of the fact that the breach or non-observance was likely to occur.

“(5.) The Court may make an order directing payment of the applicant’s costs, if, on the hearing of an application referred to in sub-regulation (3.) of this regulation, it is established—

(a) that notice of the fact that the breach or non-observance of the award was likely to occur had, before it occurred, been given to the applicant, and the applicant notified the Commissioner or a presidential member of the Commission that the breach or non-observance was likely to occur and—

(i) the notification was given without delay; or

(ii) a Commissioner or a presidential member of the Commission has certified that there was reasonable cause for delay in giving the notification; or

(b) that notice of the fact that the breach or non-observance of the award was likely to occur had, before it occurred, been given to the applicant and the time that elapsed between the giving of the notice to the applicant and the occurrence of the breach or non-observance was not sufficient to enable the applicant to notify a Commissioner or a presidential member of the Commission before the breach or non-observance occurred.

“(6.) Where an application referred to in sub-regulation (3.) of this regulation is made by an organization of employers, notice of the fact that the breach or non-observance of the award was likely to occur shall be deemed to have been given to the applicant organization if it is established that—

(a) notice was, before the breach or non-observance of the award occurred, given to an employer bound by the award referred to in the application of the likelihood of the breach or non-observance of the award in relation to the employer occurring; and

(b) the employer was a member of the applicant organization.

 

Fees for Counsel.

“96b.—(1.) Where the Court, in making an order under regulation 96 of these Regulations, has directed that the costs of proceedings to which this regulation applies be taxed, the Registrar, or the Court on a review, shall not—

(a) if two or more counsel appeared on behalf of the party in whose favour an order for costs was made; or

(b) if Her Majesty’s Counsel appeared on behalf of such a party,

allow fees in respect of more than one counsel or allow a fee in respect of Her Majesty’s Counsel, or both, unless the Court has, in giving the directions under that regulation, certified that the nature of the case justified the employment of two or more counsel or of Her Majesty’s Counsel or both, as the case requires.

“(2.) A reference in the last preceding sub-regulation to proceedings to which this regulation applies shall be read as a reference to—

(a) an application for an order under paragraph (a) of sub-section (1.) of section 109 of the Act;

(b) an application for an order under paragraph (b) of that sub-section to enjoin an organization or person from continuing a breach or non-observance of an award; or

(c) proceedings under section 111 of the Act in respect of a contempt of the Court consisting of a failure to comply with an order of the Court of the kind referred to in either of the last two preceding paragraphs.”.

5. After regulation 98 of the Conciliation and Arbitration Regulations the following regulation is inserted in Division 5 of Part III.:—

Review of taxation of costs.

“98a.—(1.) At the completion of the taxation of a bill of costs, the Registrar shall endorse on the bill his certificate specifying the amount at which the bill has been taxed.

“(2.) If so required by a party, the Registrar shall state in writing his reasons for allowing or disallowing an amount or for reducing an amount claimed by the party.

“(3.) Taxation of costs and decisions of the Registrar when acting as Taxing Officer are subject to review by the Court or a Judge.

“(4.) An application for a review by the Court or a Judge of a taxation of costs or a decision of the Registrar when acting as Taxing Officer shall be made within fourteen days after the date on which the Registrar endorses on the bill of costs the certificate referred to in sub-regulation (1.) of this regulation.

 

“(5.) Upon a review under this regulation the Court or a Judge may, subject to this Division, make such order as the Court or the Judge thinks just.”.

6. Regulations 99 and 100 of the Conciliation and Arbitration Regulations are repealed and the following regulations inserted in their stead:—

Definitions.

“99. In this Division—

‘judgment debtor’ includes, in a case where a penalty for contempt of the Court has been imposed, the person on whom the penalty has been imposed;

‘order of the Court imposing a penalty in respect of a contempt of the Court’ means a judgment or order of the Court imposing a penalty in respect of a contempt of the Court consisting of a failure to comply with an order of the Court made under paragraph (a) or (b) of sub-section (1.) of section 109 of the Act.

Methods of enforcement.

“99a. A judgment or order of the Court for the payment of money (including an order of the Court imposing a penalty in respect of a contempt of the Court) may be enforced—

(a) by writ of execution;

(b) by writ of sequestration;

(c) by writ of attachment; or

(d) by attachment of debts owing to the judgment debtor.

Writs of execution—general form.

“100.—(1.) A party in whose favour a judgment has been given, or an order has been made, by the Court for the payment of money, not being an order of the Court imposing a penalty in respect of a contempt of the Court, may cause to be issued a writ of execution in accordance with Form 24.

“(2.) Before the issue of a writ of execution under the last preceding sub-regulation, the person seeking the issue of the writ shall file with the Registrar an account or statement, verified by affidavit, of what is justly due under the judgment or order.

Writs of execution—contempt cases.

“100a. A writ of execution for the enforcement of an order of the Court imposing a penalty in respect of a contempt of the Court shall be in accordance with Form 24a.”.

Renewal of writs of execution.

7. Regulation 102 of the Conciliation and Arbitration Regulations is amended—

(a) by inserting in sub-regulation (2.), after the words “party issuing it”, the words “or the Registrar, as the case may be,”;

(b) by inserting in that sub-regulation, after the words “that party”, the words “or the Registrar, as the case may be,”; and

(c) by inserting in that sub-regulation, after the word “solicitor,” the words “or the Registrar, as the case may be,”.

 

Endorsement of writ of execution.

8. Regulation 103 of the Conciliation and Arbitration Regulations is amended by adding at the end thereof the following sub-regulation:—

“(2) The last preceding sub-regulation does not apply to or in relation to a writ of execution for the enforcement of an order of the Court imposing a penalty in respect of a contempt of the Court.”.

9. After regulation 105 of the Conciliation and Arbitration Regulations, the following regulations are inserted:—

Discovery in aid of execution.

“105a—(1.) The party entitled to enforce a judgment or order for the recovery or payment of money, or, in the case of an order imposing a penalty for a contempt of the Court, the Registrar, may apply ex parte to the Court or a Judge for an order that—

(a) the judgment debtor;

(b) in a case where the judgment debtor is a corporation (not being an organization) or other body of persons—an officer of that corporation or other body; or

(c) in a case where the judgment debtor is an organization—the holder of an office in the organization, being an office specified in paragraph (a),(aa) or (b) in the definition of ‘Office’ in section 4 of the Act,

attend and be orally examined before a Judge of the Court for the purpose of ascertaining—

(d) whether any and what debts are owing to the judgment debtor; and

(e) whether the judgment debtor has any other property or means of satisfying the judgment or order.

“(2.) The Court or a Judge may make an order for the attendance and the examination of the judgment debtor or of the other person whose attendance and examination has been requested and may, if an application has been made for such an order, also order that the judgment debtor or other person shall produce and hand over to the Court such books and documents as are specified in the order.

“(3.) The order referred to in the last preceding sub-regulation shall fix the time and place for the attendance and examination of the person named in the order and the examination shall take place before the Court or a Judge at the time and place specified in the order or at such other time and place as the Court or a Judge directs.

Order for attachment of debts.

“105b.—(1.) A person who has obtained a judgment or order for the recovery or payment of money, or, in the case of an order imposing a penalty for a contempt of the Court, the Registrar, may, whether or not an examination referred to in the last preceding regulation has taken place, apply ex parte to the Court or a Judge for the issue of a summons under this regulation calling upon a person to show cause why all debts owing or accruing from that other person (in this regulation called ‘the garnishee’) to the judgment debtor, whether alone or jointly with another person, should not be attached to answer the judgment or order, together with the costs of the garnishee proceedings.

 

“(2.) If the Court or a Judge to whom an application is made under the last preceding sub-regulation is satisfied by affidavit by the applicant or by another person who can swear to the facts—

(a) that the judgment or order referred to in the application has been filed;

(b) that the amount payable under the judgment or order remains unpaid in whole or in part; and

(c) that, either in fact or according to statements made upon an examination made under the last preceding regulation or otherwise, another person is indebted to the judgment debtor either alone or jointly with another person, and is within the Commonwealth,

the Court or a Judge may order that the summons issue accordingly.

“(3.) The summons shall be served on the garnishee and, unless otherwise ordered, on the judgment debtor at least seven days before the date specified in the summons as the date on which the garnishee is required to show cause.

“(4.) Subject to the next succeeding sub-regulation service on, or notice to, the garnishee of a summons issued under this regulation binds, until further order of the Court or a Judge, in his hands all debts owing or accruing from him to the judgment debtor, whether alone or jointly with another person.

“(5.) Where—

(a) the garnishee is a corporation which carries on in the Commonwealth the business of banking; and

(b) the debt due to the judgment debtor is money held by the corporation for the deposit or current account of the judgment debtor (whether alone or jointly with another person),

the debt is bound only to the extent of the sum specified in the summons.

“(6.) The garnishee may pay into the Court the amount due from him to the debtor (whether alone or jointly with another person) or an amount equal to the amount payable under the judgment or order.

“(7.) If the garnishee does not pay the amount referred to in the last preceding sub-regulation and—

(a) appears on the hearing of the summons and does not dispute the debt due or claimed to be due from him to the debtor; or

(b) does not appear upon the hearing of the summons,

the Court or a Judge may order that execution be issued against the garnishee.

“(8.) If the garnishee appears upon the hearing of the summons and disputes his liability to the judgment debtor, the Court or a Judge—

(a) may determine the question of his liability; or

(b) may order that any issue or question necessary for determining the liability of the garnishee be tried and determined in accordance with such directions as the Court or a Judge gives.

 

“(9.) If, in proceedings for the attachment of a debt under this regulation, it is claimed by the garnishee, or otherwise appears, that the debt sought to be attached belongs or may belong to a third person, or that a third person has or may have an interest in, or lien or charge upon, the debt, the Court or a Judge may direct that notice in writing be given to the third party stating the nature of the proceedings and containing a statement that the proceedings are to be continued at a specified time and place and that the third party is at liberty to appear and state the nature of his claim upon the debt.

“(10.) If the Court or a Judge determines that the garnishee is liable to the judgment debtor, the Court or Judge may order execution to issue against the garnishee.

“(11.) A writ of execution against the garnishee under this regulation shall be in accordance with Form 24 with such modifications as are necessary to meet the circumstances of the case.

“(12.) Payment made by, or execution levied against, the garnishee in pursuance of this regulation is a valid discharge to the garnishee, as against the judgment debtor, to the extent of the amount paid or levied, notwithstanding that the proceedings may afterwards be set aside or the judgment or order reversed.

“(13.) The Court or a Judge may refuse to order the attachment of a debt under this regulation where, from the smallness of the amount to be recovered or of the debts sought to be attached or otherwise, the remedy sought would be worthless or vexatious.”.

Writ of attachment.

10. Regulation 106 of the Conciliation and Arbitration Regulations is amended by inserting in paragraph (b), after the word “money”, the words “, or in the case of an order imposing a penalty in respect of a contempt of the court, the Registrar,”.

Signing of documents, &c., on behalf of persons, organizations, &c.

11. Regulation 156 of the Conciliation and Arbitration Regulations is amended—

(a) by inserting, after the word “signed” (first occurring), the words “or may be taken out, made or signed”; and

(b) by inserting, after the word “taken” (second occurring), the words “or may be taken”.

12. After regulation 160 of the Conciliation and Arbitration Regulations the following regulations are inserted:—

When service effected if document posted.

“160a. Where service of a document is effected, in accordance with one of the last three preceding regulations, by posting the document to the person to whom it is directed, service of the document shall, unless the contrary is proved, be deemed to have been effected at the time when the letter containing the document would, in the ordinary course of post, be delivered at the address to which it is posted.

 

Evidence of when letter delivered in ordinary course of post.

“160b.—(1.) In any proceedings, a certificate under the hand of a person occupying or performing the duties of an office of Director, Posts and Telegraphs, or a person authorized in writing by such a person to give certificates under this sub-regulation, stating that a letter posted (postage being prepaid) at a specified time, on a specified day, at a specified place and addressed to a specified address would, in the ordinary course of post, have been delivered at that address on a specified day is evidence of the facts stated.

“(2.) For the purposes of the last preceding sub-regulation, a document purporting to be a certificate referred to in that sub-regulation shall, unless the contrary is proved, be deemed to be such a certificate and to have been duly given.”.

13. Regulations 166 to 168, inclusive, of the Conciliation and Arbitration Regulations are repealed and the following regulations inserted in their stead:—

Remuneration and allowances of members of Boards of Reference and Local Industrial Boards.

“166.—(1.) Subject to this regulation, a person who is—

(a) a Board of Reference, or the Chairman, Deputy Chairman or a member of a Board of Reference, appointed under an award or order; or

(b) the Chairman or a member of a Local Industrial Board to which a matter has been referred for investigation and report,

shall be paid by the Commonwealth such remuneration, if any, and such allowances, if any, as the Minister determines and the amount of any fares actually and properly paid by him in the performance of his duties.

“(2.) Nothing in the last preceding sub-regulation authorizes the payment of an amount to a Commissioner or a Conciliator.

“(3.) Unless the Minister otherwise directs, an amount shall not be paid under sub-regulation (1.) of this regulation to—

(a) a person employed in accordance with the Public Service Act 1922-1967 or employed by an authority of the Commonwealth; or

(b) a person to whom, or a person included in a class of persons to which, the Governor-General, in pursuance of section 8a of the Public Service Act 1922-1967, has declared that the provisions of that Act shall not apply.

Allowances to persons summoned to compulsory conferences.

“167. Representatives of parties summoned to compulsory conferences under section 29 of the Act shall be paid by the Commonwealth such allowances as are determined by the Minister, the amount of any salary, wages or other earnings actually lost during the time occupied in travelling and attending any such conference and the amount of any fares actually and properly paid by them in the course of travelling.”.

Industrial Registrar to certify payments.

14. Regulation 169 of the Conciliation and Arbitration Regulations is amended by omitting the word “three” and inserting in its stead the word “two”.

 

First Schedule—Form 24a.

15. The First Schedule to the Conciliation and Arbitration Regulations is amended by inserting after Form 24 the following form:—

“Regulation 100a.

Form 24a.

WRIT OF EXECUTION—NON-PAYMENT OF PENALTY IMPOSED FOR CONTEMPT OF COURT

No. .

Before the Commonwealth Industrial Court.

ELIZABETH THE SECOND, ETC.

To the Marshall of the High Court of Australia [or to ]:

Whereas on the day of , 19

the Commonwealth Industrial Court did impose on A.B. a penalty of in respect of the contempt of court specified in the order filed herein on the day of , 19 :

This is to command you to levy on the lands and goods of A.B. the sum of in satisfaction of the said penalty ordered to be paid by him, and, after levy duly made thereof, to have that money before us in our said Court at   immediately after the execution hereof.

Witness  , Chief Judge of Our said Court, at this  day of , 19 .

By the Court

Registrar”.

Third Schedule.

16. The Third Schedule to the Conciliation and Arbitration Regulations is amended by inserting in item 29, after the words “under section 28”, the words “or section 109a”.

Application of amendments.

17. Regulations 99 to 107 (inclusive) of the Conciliation and Arbitration Regulations as amended by these Regulations apply, on and after the commencement of these Regulations, to and in relation to judgments and orders of the Commonwealth Industrial Court given or made before or after the commencement of these Regulations.

  

By Authority: A. J Arthur, Commonwealth Government Printer, Canberra