Defence Reserves Re-Employment Act 1995 (Vic)
Version No. 003
Defence Reserves Re-Employment Act 1995
Act No. 1/1995
Version incorporating amendments as at 5 April 2005
TABLE OF PROVISIONS
Section Page
PART 1—PRELIMINARY
1.Purpose
2.Commencement
3.Definitions
4.Crown to be bound
PART 2—PROTECTION OF CIVILIAN EMPLOYMENT OF ELIGIBLE RESERVISTS
5.Declared areas
6.Declaration of qualifying service
7.Re-employment of eligible reservists
PART 3—DEFENCE RESERVES RE-EMPLOYMENT BOARD
8.Establishment of Board
9.Functions of Board
10.Secretary may act as member
11.Meetings of Board
12.Staff of Board
13.Annual report
PART 4—MISCELLANEOUS
14.Offence to falsely claim to be eligible reservist
15.Certificates
16.Prosecutions
17.Amendment of 1943 Act
18.Transitional provisions
19.Regulations
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ENDNOTES
1. General Information
2. Table of Amendments
3. Explanatory Details
Version No. 003
Defence Reserves Re-Employment Act 1995
Act No. 1/1995
Version incorporating amendments as at 5 April 2005
The Parliament of Victoria enacts as follows:
PART 1—PRELIMINARY
1.Purpose
The main purpose of this Act is to protect the civilian employment of part-time members of the Reserve Forces who have completed certain periods of full-time service. The Act also provides for the continuation of the rights given by the Discharged Servicemen's Preference Act 1943.
2.Commencement
(1)Section 1 and this section come into operation on the day on which this Act receives the Royal Assent.
(2)Subject to sub-section (3), the remaining provisions of this Act come into operation on a day or days to be proclaimed.
(3)If a provision referred to in sub-section (2) does not come into operation within the period of 6 months beginning on, and including, the day on which this Act receives the Royal Assent, it comes into operation on the first day after the end of that period.
3.Definitions
(1)In this Act—
"Board" means the Defence Reserves Re‑employment Board established by this Act;
"contract of employment" includes an employment agreement within the meaning of the Employee Relations Act 1992 and a contract of training or training agreement to which Part 5 of the Vocational Education and Training Act 1990 applies;
"declared area" means an area declared by the Minister under section 5 to be a declared area for the purposes of this Act;
"eligible reservist" means a member of the Reserve Forces who has rendered a period of qualifying service;
"employee" does not include any person engaged under a contract for services;
"employer" includes any person employing an employee, including the Crown and a public body;
"qualifying service" means service declared by the Minister under section 6 to be qualifying service for the purposes of this Act;
"Reserve Forces" means Australian Naval Reserve, Australian Army Reserve or Australian Air Force Reserve.
(2)A reference in this Act to service in a declared area is a reference to service in a declared area at a time when that area was a declared area, whether or not it has since ceased to be a declared area.
4.Crown to be bound
This Act binds the Crown, not only in right of Victoria but also, so far as the legislative power of the Parliament permits, the Crown in all its other capacities.
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PART 2—PROTECTION OF CIVILIAN EMPLOYMENT OF ELIGIBLE RESERVISTS
5.Declared areas
(1)On the recommendation of the Board, the Minister, by notice published in the Government Gazette—
(a)may declare a specified area to be a declared area for the purposes of this Act—
(i)for a specified period; or
(ii)for a period commencing on a specified date;
(b)may declare that a specified declared area ceases to be a declared area for the purposes of this Act from a specified date.
(2)A declaration made by notice under sub-section (1) may be made so as to apply, adopt or incorporate any matter contained in any document whatsoever whether—
(a)wholly or partially or as amended by the notice;
(b)as in force at a particular time or as in force from time to time.
(3)A specified area may be declared to be a declared area for the purposes of this Act for a period that is wholly or partly before the commencement of this section.
6.Declaration of qualifying service
(1)On the recommendation of the Board, the Minister, by notice published in the Government Gazette, may declare a period of continuous full-time service of a specified type in a part of the Reserve Forces rendered by a member of the Reserve Forces to be a period of qualifying service for the purposes of this Act.
(2)A period of service may only be the subject of a declaration under sub-section (1) if in the opinion of the Minister—
(a)it is a period of active service in a warlike operation of the Defence Force in a declared area; or
(b)it is a period of service (wherever rendered) in direct support of a warlike, peacekeeping or humanitarian operation of the Defence Force in a declared area of a type that should be treated as qualifying service and—
(i)in the case of service outside Australia, it is for a period of not less than 3 months; or
(ii)in the case of service within Australia, it is for a period of not less than 6 months.
(3)A declaration made by notice under sub-section (1) may be made—
(a)generally in relation to service in declared areas or in direct support of warlike, peacekeeping or humanitarian operations in declared areas; or
(b)in relation to service in a specified declared area or class of declared area or in direct support of warlike, peacekeeping or humanitarian operations in a specified declared area or class of declared area; or
(c)in relation to service by a specified person or a specified class of person in a specified declared area or class of declared area or in direct support of warlike, peacekeeping or humanitarian operations in a specified declared area or class of declared area.
(4)A period of service may be declared to be a period of qualifying service for the purposes of this Act even if the service was rendered wholly or partly before the commencement of this section.
7.Re-employment of eligible reservists
(1)An eligible reservist who was employed in Victoria under a contract of employment immediately before commencing the period of qualifying service may, within 3 months after completing the period of qualifying service, apply in the prescribed form to his or her employer or former employer to resume work or to be reinstated in employment, according as to whether or not his or her employment has terminated.
(2)The Minister, on the recommendation of the Board because of the existence of exceptional circumstances, may extend in a particular case the period of 3 months referred to in sub-section (1) to a period not exceeding a 5 year period after the completion of the period of qualifying service.
(3)The employer or former employer must, as soon as is reasonably practicable after the receipt of the application of an eligible reservist made in accordance with this section, permit the eligible reservist—
(a)to resume work; or
(b)reinstate the eligible reservist in employment—
in the position in which he or she was employed immediately before the commencement of the period of qualifying service or in any more favourable position in which he or she would have been employed if he or she had not been absent on qualifying service and under conditions no less favourable to him or her than those that would have been applicable to him or her if he or she had not been so absent.
Penalty:500 penalty units.
(4)In a proceeding for an offence against sub-section (3) in a case where the employment of the eligible reservist has terminated it is a defence to the charge for the accused to prove—
(a)that the eligible reservist is not a fit and proper person; or
(b)that, having agreed to the eligible reservist being reinstated in employment, the eligible reservist failed without reasonable excuse to present himself or herself for employment at the time and place notified to him or her by the employer; or
(c)that because of a change of circumstances (other than the employment of another person to replace him or her)—
(i)it was not reasonably practicable to reinstate the eligible reservist in employment; or
(ii)the reinstatement of the eligible reservist in a position and under conditions not less favourable to him or her than those that would have been applicable to him or her if he or she had not been absent on qualifying service was impracticable and that the accused had offered to reinstate him or her in the most favourable position and under the most favourable conditions reasonably practicable; or
(d)that the eligible reservist had been employed to take the place of another eligible reservist and that that eligible reservist had been permitted to resume work or had been reinstated in employment in accordance with this section.
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PART 3—DEFENCE RESERVES RE-EMPLOYMENT BOARD
8.Establishment of Board
(1)There is established a Defence Reserves Re‑employment Board.
(2)The Board consists of 3 members appointed by the Governor in Council of whom—
(a)two must be ordinary members, or eligible to be ordinary members, of the body known as the Returned and Services League of Australia (Victorian Branch) Inc. or of any other body or bodies that the Minister considers to be representative of former and current Defence Force personnel; and
(b)one must be a person whose name is included in a panel of not less than 3 names jointly submitted to the Minister by the governing bodies in Victoria of any associations that the Minister considers to be representative of employers.
(3)The Governor in Council must appoint one of the members referred to in sub-section (2)(a) as chairperson of the Board.
(4)If there is, or is about to be, a vacancy in the office of a member referred to in sub-section (2)(b) the Minister must request the bodies chosen by him or her for the purposes of that sub-section to submit to him or her in writing, on or before the date specified by the Minister when making the request, a panel of not less than 3 names of people.
(5)If the bodies fail to submit a joint panel of names on or before the specified date, the Governor in Council may appoint a person nominated by the Minister to fill the vacancy.
(6)Subject to sub-section (11), an appointment as member is for a term of 3 years but a member is eligible for re-appointment.
(7)A member may resign from office by delivering to the Governor a signed letter of resignation.
(8)The Governor in Council may at any time remove a member from office.
(9)A member is appointed subject to any terms and conditions that are specified in the instrument of appointment and that are not inconsistent with this Act.
(10)A member is entitled to the remuneration and allowances (if any) fixed in respect of him or her by the Governor in Council.
(11)A member appointed to fill a vacancy arising otherwise than by effluxion of time holds office only for the remainder of the term of the person in whose place he or she is appointed.
9.Functions of Board
The functions of the Board are—
(a)to assist members of the Reserve Forces regain employment on completing a period of qualifying service;
(b)to give advice or make recommendations to the Minister on matters relevant to the re‑employment of eligible reservists;
(c)to obtain and compile information on matters related to its functions;
(d)to maintain in any form that the Board thinks fit records relating to the qualifying service of members of the Reserve Forces;
(e)to provide information services to relevant people on the operation of this Act and on the practices and functions of the Board;
(f)to investigate alleged contraventions of this Act;
(g)with the authorisation of the Minister, to prosecute for offences against this Act;
(h)the other functions given to the Board by or under this Act, the Discharged Servicemen's Preference Act 1943 or any other Act.
10.Secretary may act as member
(1)The secretary may act as a member of the Board in the place of any member who is absent from a meeting of the Board.
(2)The secretary, when acting in the place of a member, has all the powers and may exercise any of the functions of the member for whom he or she is acting.
11.Meetings of Board
(1)Meetings of the Board shall be held at the times and places determined by the Board or directed by the chairperson.
(2)The chairperson must preside at any meeting of the Board at which he or she is present.
(3)If the chairperson is absent, the other member referred to in section 8(2)(a) must preside.
(4)A majority of the members in office at the time constitutes a quorum for a meeting of the Board.
(5)A question arising at a meeting of the Board must be determined by a majority of votes of the members present and voting on that question and, if the votes are equal, the person presiding has a casting vote as well as a deliberative vote.
(6)An act or decision of the Board is not invalid only because—
(a)of a vacancy in the office of a member; or
(b)of a defect or irregularity in or in connection with the appointment of a member; or
(c)the occasion for the secretary to act for a member had ceased to exist or had not arisen.
(7)Subject to this Act, the Board may regulate its own meeting procedure.
12.Staff of Board
A secretary to the Board is, and any employees that are necessary for the proper functioning of the Board are, to be employed under Part 3 of the Public Administration Act 2004.
13.Annual report
(1)The Board must, as soon as practicable after 31 December in each year, prepare a report on its operations during the period of 12 months ending on that 31 December and submit the report to the Minister.
(2)The report must contain a copy of any declarations made by the Minister under section 5(1) or 6(1) in the period to which the report relates.
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PART 4—MISCELLANEOUS
14.Offence to falsely claim to be eligible reservist
A person must not for any purpose connected with the operation of this Act—
(a)falsely pretend to be an eligible reservist; or
(b)knowingly provide, offer or utter any false evidence of his or her being an eligible reservist.
Penalty:50 penalty units.
15.Certificates
(1)Any person may apply to the Board for a certificate in relation to him or her.
(2)An application must—
(a)be in writing; and
(b)be in a form approved by the Board and be accompanied by such documents and contain such information as may be determined by the Board; and
(c)be accompanied by the application fee (if any) fixed by the Board with the approval of the Minister; and
(d)state the name and address of the applicant.
(3)The Board must issue to the applicant a certificate in the form approved by the Minister that clearly identifies the applicant and gives details as to the following things:
(a)the period of qualifying service rendered by the applicant;
(b)the rights given to the applicant by this Act.
16.Prosecutions
(1)A prosecution for an offence against this Act may only be brought by the Board with the authorisation of the Minister.
(2)Before commencing a prosecution against a person for an offence against this Act, the Board must give the person a reasonable opportunity to make any submissions to the Board that the person thinks fit.
(3)An authorisation—
(a)must be in writing; and
(b)may be given generally, or only in relation to a particular case or cases, or a particular class of case or cases; and
(c)may be revoked by the Minister at any time by notice in writing.
(4)The revocation of an authorisation does not affect any proceedings commenced by the Board before that revocation but not yet determined unless the notice of revocation states otherwise.
(5)In a prosecution for an offence against this Act, a certificate signed by the Minister as to the granting of an authorisation to bring the prosecution is conclusive evidence of that fact.
17.Amendment of 1943 Act
The Discharged Servicemen's Preference Act 1943 is amended as follows:
(a)in section 2(1) for the definition of "Board" substitute—
' "Board" means the Defence Reserves Re-employment Board established by the Defence Reserves Re-employment Act 1995;';
(b)sections 5 and 5A are repealed;
(c)in section 6(1) after "Board" insert "under this Act and the regulations";
(d)in section 6, sub-sections (2) and (4) are repealed.
18.Transitional provisions
(1)In this section "former Board" means the Discharged Servicemen's Employment Board established under the Discharged Servicemen's Preference Act 1943.
(2)The former Board is abolished and its members go out of office.
(3)All rights, property and assets that, immediately before the commencement of sub-section (2), were vested in the former Board are, by force of this sub-section, vested in the Board.
(4)All debts, liabilities and obligations of the former Board existing immediately before the commencement of sub-section (2) become, by force of this sub-section, debts, liabilities and obligations of the Board.
(5)The Board is, by force of this sub-section, substituted as a party to any proceedings pending in any court to which the former Board was a party immediately before the commencement of sub-section (2).
(6)The Board is, by force of this sub-section, substituted as a party to any arrangement or contract entered into by or on behalf of the former Board as a party and in force immediately before the commencement of sub-section (2).
(7)Any act, matter or thing done by or in relation to the former Board before the commencement of sub-section (2) has effect as if it had been done by or in relation to the Board and continues to have the same effect after that commencement as it had before then.
(8)Any reference to the former Board in any Act or in any proclamation, Order in Council, rule, regulation, order, agreement, instrument, deed or other document whatsoever shall, so far as it relates to any period after the commencement of sub-section (2) and if not inconsistent with the context or subject-matter, be construed as a reference to the Board.
(9)Despite anything to the contrary in this Act, the chairman of the former Board must be deemed to have been appointed as chairperson of the Board for the balance, as at immediately before the commencement of sub-section (2), of his term as chairman of the former Board.
(10)Despite anything to the contrary in this Act, the members of the former Board referred to in paragraphs (a) and (b) of section 5(3) of the Discharged Servicemen's Preference Act 1943 must be deemed to have been appointed as members of the Board referred to in paragraphs (a) and (b) respectively of section 8(2) of this Act for the balance, as at immediately before the commencement of sub-section (2), of their term as members of the former Board.
19.Regulations
The Governor in Council may make regulations for or with respect to any matter or thing required or permitted by this Act to be prescribed or necessary to be prescribed to give effect to this Act.
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ENDNOTES
1. General Information
Minister's second reading speech—
Legislative Assembly: 8 December 1994
Legislative Council: 7 March 1995
The long title for the Bill for this Act was "A Bill to protect the civilian employment of certain part-time members of the Reserve Forces, to continue the existing rights of certain discharged members of the Defence Force to preference in employment, to amend the Discharged Servicemen's Preference Act 1943 and for other purposes.".
The Defence Reserves Re-employment Act 1995 was assented to 15 March 1997 and came into operation as follows:
Sections 1 and 2 on 15 March 1995: section 2(1); rest of Act on 27 July 1995: Government Gazette 27 July 1995 page 1880.
2. Table of Amendments
This Version incorporates amendments made to the Defence Reserves Re‑Employment Act 1995 by Acts and subordinate instruments.
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Public Sector Reform (Miscellaneous Amendments) Act 1998, No. 46/1998
Assent Date: 26.5.98 Commencement Date: S. 7(Sch. 1) on 1.7.98: s. 2(2) CurrentState: This information relates only to the provision/s amending the Defence Reserves Re-Employment Act 1995
Public Administration Act 2004, No. 108/2004
Assent Date: 21.12.04 Commencement Date: S. 117(1)(Sch. 3 item 54) on 5.4.05: Government Gazette 31.3.05 p. 602 CurrentState: This information relates only to the provision/s amending the Defence Reserves Re-Employment Act 1995
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3. Explanatory Details
No entries at date of publication.
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