Electricity Authorities Industrial Causes Act 1985 (Qld)

146 ANNO TRICESIMO QUARTO ELIZABETHAE SECUNDAE REGINAE No. 10 of 1985 An Act to provide in respect of industrial causes affecting the electricity supply industry and for related purposes [ASSENTED TO 25TH MARCH, 1985]

Electricity Authorities Industrial Causes Act 1985, No. 10 147 BE IT ENACTED by the Queen ' s Most Excellent Majesty, by and with the advice and consent of the Legislative Assembly of Queensland in Parliament assembled , and by the authority of the same , as follows:- PART I-PRELIMINARY 1. Short Title . This Act may be cited as the Electricity Authorities Industrial Causes Act 1985. 2. Commencement . (1) Section 1 and this section shall commence on the day this Act is assented to for and on behalf of Her Majesty. (2) Except as provided by subsection (1) this Act or the provisions thereof specified in the Proclamation shall commence on the date or dates to be appointed by Proclamation. 3. Arrangement . This Act is arranged in Parts as follows:- PART I-PRELIMINARY ( ss. 1-4); PART II-THE TRIBUNAL (ss. 5-9); PART III-JURISDICTION POWERS AND PRACTICE OF TRIBUNAL (ss. 10-21); PART IV-CONDITIONS OF EMPLOYMENT IN ELECTRICITY CALLINGS (ss. 22-31); PART V-MISCELLANEOUS PROVISIONS (ss. 32-33). 4. Interpretation . (1) In this Act, except where a contrary intention appears- "award" means- (a) an award within the meaning of the Industrial Conciliation and Arbitration Act 1961-1985,- and (b) an award, or variation of an award, made by the tribunal; "calling" means any trade, craft, vocation or other occupation and includes any section of a calling; "decision" means any award, order, determination, direction or declaration; "Electricity Authority" means- (a) Queensland Electricity Commission; and

148 Electricity Authorities Industrial Causes Act 1985, No. 10 (b) each Electricity Board constituted under the ElectricityAct 1976 or that Act as amended; "electricity calling" means a calling within the employment of any Electricity Authority; "Industrial Commission" means The Industrial Conciliation and Arbitration Commission under the Industrial Conciliation and Arbitration Act 1961-1985; "Industrial Court" means the Industrial Court constituted under the Industrial Conciliation and Arbitration Act 1961-1985; "Industrial Gazette" means the Queensland Government Industrial Gazette; "Minister" means the Minister for Mines and Energy or other Minister of the Crown charged with the administration of this Act and includes a Minister of the Crown for the time being performing the duties of the Minister; "prescribed authority" means- (a) in relation to an application made or to be made under section 28 by an employee of the Queensland Electricity Commission, the Minister; and (b) in relation to an application made or to be made under section 28 by an employee of any other Electricity Authority, the Electricity Commissioner under the Electricity Act 1976-1984; "strike" means a strike within the meaning of the Industrial Conciliation and Arbitration Act 1961-1985 and includes conduct of an employee that, if indulged in by two or more employees, would constitute a strike within the meaning of that Act; "tribunal" means the Electricity Authorities Industrial Causes Tribunal established by this Act. (2) In or for the purposes of this Act each of the expressions- industrial agreement; industrial cause; industrial dispute; industrial matter; and industrial union, has the meaning assigned to it by the Industrial Conciliation and Arbitration Act 1961-1985. (3) Where there is any inconsistency between a provision of this Act and a provision of any other Act or of an award, the provision of this Act shall prevail and to the extent of the inconsistency the provision of the other Act or the award shall be inoperative. (4) A reference in any Act or award to the Industrial Commission or to a member of the Industrial Commission (however expressed) or

Electricity Authorities Industrial Causes Act 1985, No. 10 149 to an award shall, in the application of the Act or award to industrial causes committed by this Act to the jurisdiction of the tribunal, be read and construed as a reference to the tribunal or to a member of the tribunal or, as the case may be, an award of the tribunal. PART II-THE TRIBUNAL 5. Constitution of tribunal . (1) There is hereby established a tribunal called the "Electricity Authorities Industrial Causes Tribunal". (2) The Governor in Council may appoint by commission in Her Majesty's name such number of persons as he from time to time considers necessary to be members of the tribunal. (3) For the purpose of exercising its jurisdiction the tribunal shall consist of one of its members. (4) The tribunal shall be a court of record and shall have an official seal, which shall be judicially noticed. 6. Term of appointment . (1) A person appointed as a member of the tribunal shall be appointed for a term not exceeding seven years and, unless he has become ineligible under this Act, is eligible for re- appointment from time to time for a further term not exceeding seven years. (2) A person shall be taken to have vacated his office as a member of the tribunal upon his attaining the age of 70 years notwithstanding that he has not then completed the current term of his appointment. (3) If the term of appointment of a member of the tribunal expires or he attains the age of 70 years during the continuance of a proceeding concerning an industrial cause on which he has entered the Governor in Council may, from time to time if necessary, without re-appointment continue him in office for such time as is necessary to enable him to complete the proceeding. (4) A person who has attained the age of 70 years is not eligible for appointment as a member of the tribunal. 7. Conditions of appointment . (1) A member of the tribunal, if he is not a Judge of the Supreme Court or of District Courts shall be entitled to a salary at the rate per annum applicable from time to time to a Judge of District Courts. (2) A member of the tribunal shall hold office during good behaviour and shall not be removed from office unless an address praying for his removal is presented to the Governor by the Legislative Assembly. (3) A member of the tribunal shall not be capable of being a member of the Executive Council or the Legislative Assembly and shall not act as director or auditor or take part in any other capacity in management of any trade, business or body corporate. 8

150 Electricity Authorities Industrial Causes Act 1985, No. 10 (4) Entitlements to leave and pension benefits of a member of the tribunal and entitlements to pension benefits of his widow and any child of his shall be those provided for by the Industrial Conciliation and Arbitration Act 1961-1985 in respect of those matters as if that member were a Commissioner within the meaning of that Act. . In the application of section IOA of that Act to a member of the tribunal the definition "Fund" shall be deemed to be extended to include the fund maintained for the purposes of the Queensland Electricity Supply Industry Employees' Superannuation Scheme referred to in the Electricity Act 1976-1984. 8. Constitution of tribunal in special cases . (1) In the case of illness or absence of a member of the tribunal or of his being unavailable in a particular case or where the Governor in Council is satisfied that assistance is needed to dispose of the number of pending industrial causes within the jurisdiction of the tribunal, the Governor in Council may, by notification published in the Industrial Gazette, appoint one or more persons, who are eligible for appointment as a member of the tribunal, to constitute the tribunal during the illness, absence or unavailability of the member or, as the case may be, for the purpose of disposing of such pending industrial causes. (2) While any person appointed under subsection (1) constitutes the tribunal he may exercise the same jurisdiction and has and may exercise the same powers and authorities and shall discharge the same duties and responsibilities and is subject to the same disabilities and this Act in all respects applies to him as if he had been appointed under section 5 as a member of the tribunal. 9. Registrar . (1) There shall be a registrar of the tribunal and his office shall be the tribunal's registry. The registrar, if he is at any time appointed under this Act, shall be appointed by the Governor in Council, on the recommendation of the Minister, by notification published in the Industrial Gazette. (2) Until a registrar is appointed under subsection (1), the industrial registrar for the purposes of the Industrial Conciliation and Arbitration Act 1961-1985 shall be the registrar of the tribunal and his office shall be its registry. PART III-JURISDICTION POWERS AND PRACTICE OF TRIBUNAL 10. Curtailment of Industrial Commission's jurisdiction . It is not legally competent to the Industrial Commission to exercise the jurisdiction had by it under the Industrial Conciliation and Arbitration Act 1961- 1985 in respect of industrial causes to the extent that those industrial causes consist of industrial disputes or industrial matters in which Electricity Authorities (or any of them) or their employees (or any of them) or both such authorities and employees are concerned as employers or, as the case may be, employees except such jurisdiction in respect

Electricity Authorities Industrial Causes Act 1985, No. 10 151 of industrial causes that relate exclusively to both apprentices who are engaged in electricity callings and apprentices who are engaged in other callings, and any decision or recommendation made or other indication given by the Industrial Commission purporting to exercise the first- mentioned jurisdiction shall, to the extent referred to in this subsection, be of no force or effect. 11. Tribunal's jurisdiction . (1) The Electricity Authorities Industrial Causes Tribunal is hereby invested with the jurisdiction which is denied to the Industrial Commission by section 10. (2) The jurisdiction of the tribunal does not include jurisdiction to make any decision or recommendation or give any other indication in respect of any matter or thing that is not an industrial matter. 12. Powers of tribunal and its members. (1) Subject to this Act, in respect of industrial causes within the tribunal's jurisdiction- (a) the tribunal shall have and may exercise the same powers and authorities and shall discharge the same functions and duties as if it were the Industrial Commission exercising its jurisdiction in respect of the industrial causes and this Act had not been passed; and (b) a member of the tribunal shall have and may exercise the same powers and authorities and shall discharge the same functions and duties as if he were a Commissioner appointed as a member of the Industrial Commission exercising his jurisdiction in respect of the industrial causes and this Act had not been passed. (2) The provisions of subsection (1)- (a) extend to both conciliation procedures and arbitration procedures; (b) do not authorize the remittal or referral of the matter of any proceeding to a Full Bench of the Industrial Commission. (3) Where the tribunal is seised of an industrial cause in respect of which it is carrying out conciliation procedures and one of the parties to that cause requests that the cause be disposed of by arbitration, the tribunal shall proceed to arbitration as soon as is practicable. 13. Notice to tribunal or registrar of dispute etc. (1) Where an industrial dispute or an industrial situation that is likely to give rise to an industrial dispute exists between- (a) an employer in whose employment are persons engaged in an electricity calling of the one part and one or more of those persons of the other part; or (b) persons engaged as employees in an electricity calling or an industrial union of employees who are such persons of the

152 Electricity Authorities Industrial Causes Act 1985, No. 10 one part and any other persons or any other industrial union of employees of the other part, the employer of the persons so engaged shall forthwith upon his becoming aware of the dispute or situation, and any person concerned in the dispute or situation may at any time, notify a member of the tribunal or the registrar of the tribunal of the dispute or situation. (2) A notification under subsection (1) shall specify the parties (so far as they are known to the informant) to the dispute or situation to which it relates, the place or places where the dispute or situation exists and the subject-matter of the dispute or situation. (3) If the Minister is aware of the existence of an industrial dispute or of an industrial situation that is likely to give rise to an industrial dispute he may notify a member of the tribunal or the registrar of the tribunal of the dispute or situation. (4) Upon being notified of the existence of a dispute or situation a member of the tribunal may exercise the authorities and discretions conferred on a member of the Industrial Commission by section 36 of the Industrial Conciliation and Arbitration Act 1961-1985 and may take steps to prevent or settle the dispute or situation by arbitration notwithstanding that the matter has not been submitted to the processes of conciliation. 14. Practice and procedure of tribunal . (1) Unless the regulations otherwise prescribe, the provisions of the Industrial Conciliation and Arbitration Act 1961-1985 and of the rules made thereunder, being provisions that- (a) govern the practice and procedure of the Industrial Commission; or (b) provide for the enforcement of any decision of the Industrial Commission, shall govern the practice and procedure of the tribunal or, as the case may be, shall regulate the enforcement of any decision of the tribunal. 15. Intervention by Crown. The Crown in right of the State- (a) may intervene at any stage in a proceeding before the tribunal; or (b) may intervene at any stage in a proceeding before any court touching or involving the jurisdiction of the tribunal or any matter within the jurisdiction of the tribunal or the interpretation of this Act. Upon such intervention the Crown shall be deemed to be a party to the proceeding.

Electricity Authorities Industrial Causes Act 1985, No. 10 153 16. Representation of parties . (1) A party to a proceeding before the tribunal- (a) being a party other than an industrial union, may be represented by an agent appointed in writing in that behalf; and (b) being an industrial union, may be represented by an agent appointed in writing in that behalf or by any officer or member thereof. (2) Unless all parties consent thereto no party shall be represented by counsel or solicitor in a proceeding before the tribunal. 17. Use of advisory panel. (1) If a member of the tribunal considers that it would conduce to the proper disposal of a proceeding before the tribunal, he may request the parties to the proceeding to nominate a panel of four persons to assist in the disposal of the proceeding. (2) A panel nominated under subsection (1) shall consist of- (a) two persons nominated by the party or parties who represents or represent the employers' interest in the proceeding; and (b) two persons nominated by the party or parties who represents or represent the employees' interest in the proceeding. (3) Where the employees' interest in a proceeding before the tribunal for which a panel is to be nominated consists partly of the interest of any employee or employees who is not a member or are not members of an industrial union of employees that last-mentioned interest shall be represented on the panel by one person nominated by that employee or those employees. (4) A member of the tribunal is not obliged- (a) to persevere with a request made by him under subsection (1); or (b) to sit with the same panel or with any panel throughout the whole of the proceeding. (5) Notwithstanding that a panel may have been used to assist in disposing of a proceeding before the tribunal the decision of the tribunal shall in every case be that of the member of the tribunal. 18. Curtailment of Industrial Court' s jurisdiction . (1) It is not legally competent to the Industrial Court to exercise the jurisdiction had by it under the Industrial Conciliation and Arbitration Act 1961-1985 in respect of- (a) industrial causes to the extent that those causes affect Electricity Authorities (or any of them) or their employees (or any of them) or both such authorities and employees; or

154 Electricity Authorities Industrial Causes Act 1985, No. 10 (b) proceedings that are before or have been disposed of by the tribunal, and any order made or act or thing done by the Industrial Court purporting to act in exercise of that jurisdiction shall, to the extent referred to in this subsection, be of no force or effect. (2) The provisions of the Industrial Conciliation and Arbitration Act 1961-1985 that purport to deprive the Supreme Court of jurisdiction in respect of matters thereby committed to the jurisdiction of the Industrial Court have no application in respect of industrial causes committed by this Act to the jurisdiction of the tribunal or in respect of proceedings that are before or have been disposed of by the tribunal and it is declared that the Supreme Court has, in respect of those industrial causes and proceedings such first-mentioned jurisdiction as if a reference therein to the Industrial Commission were a reference to the tribunal established under this Act and a reference therein to a Commissioner were a reference to a person who is a member of or who constitutes the tribunal established under this Act. 19. Principles for guidance of tribunal . In the exercise of jurisdiction by the tribunal and in the exercise and discharge of powers, authorities, functions and duties by a member of the tribunal regard shall be had to the following matters:- (a) the prosperity of the economy of Queensland; (b) the economics of the operation of Electricity Authorities in Queensland in general and, in particular, the Electricity Authority concerned in the proceeding in question, and the consumers' interests therein; (c) the likely results on other sectors of industry within Queensland of the decision to be made or of compliance with the recommendation or indication to be given; and (d) the role and responsibilities of management of Electricity Authorities. 20. Access to Industrial Commission ' s records . For the purpose of the exercise of jurisdiction by the tribunal or the exercise or discharge of the powers, authorities or duties of the registrar of the tribunal, full and free access shall be had by the tribunal and any member thereof or, as the case may be, the registrar to the records of the Industrial Commission or the industrial registrar acquired for the purposes of the Industrial Conciliation and Arbitration Act 1961 or that Act as amended from time to time. 21. Ef fect of decision of tribunal . Every decision of the tribunal shall be final and conclusive and shall not be impeachable for informality or want of form.

Electricity Authorities Industrial Causes Act 1985, No. 10 155 PART IV-CONDITIONS OF EMPLOYMENT IN ELECTRICITY CALLINGS 22. Negation of preference in electricity calling . A provision of any Award or Act, whether made, or agreed to, inserted or enacted before or after the passing of this Act, to the extent that it provides in its terms for preference to members of an industrial union of employees in an electricity calling, does not have any force or effect. 23. Illegality of strike in electricity calling . Participating in or inciting, counselling or abetting a strike by persons engaged in an electricity calling is an illegal act. 24. Strike in electricity calling a fundamental breach of contract. Participating in a strike by an employee engaged in an electricity calling constitutes a breach of his contract of employment that goes to the foundation of that contract and entitles the employer to treat that contract as thereby discharged. 25. Effect of strike on industrial agreements . (1) Where there exists in relation to an electricity calling an industrial agreement or an agreement made under s. 40 (2) of the Industrial Conciliation and Arbitration Act 1961-1985 and an employee engaged in that calling who is taking the benefit of the agreement participates in a strike, the agreement shall be taken to have been thereby discharged in respect of that employee. (2) Subsection (1) shall operate and shall be given effect whether or not the employee in question or any industrial union of employees of which he is a member is a party to the agreement in question. 26. Automatic penalty for strikes in electricity callings . (I) It is the duty of every employee engaged in an electricity calling to refrain from participating in a strike that affects the performance of work or production within that calling. (2) An employee who, being subject to the duty defined in subsection (1), fails to perform that duty incurs, by reason of that failure and without other proceeding- (a) the loss of the whole of the remuneration that but for the provisions of this subsection he would have received in respect of the day or days on which or, in the case of a shift-worker, in respect of the shift or shifts in which he has failed to perform that duty; and (b) any other detriment incurred by him apart from this Act by reason of his participating in the strike in question. (3) Incurring a penalty under this section is in addition to and does not prejudice the imposition of a penalty under section 27. 27. Disciplinary action against striker in electricity calling . (1) Where a strike by any employee or employees engaged in an electricity calling

156 Electricity Authorities Industrial Causes Act 1985, No. 10 has occurred the employer may at his discretion impose on the employee or each employee who participates in the strike one of the following penalties:- (a) dismissal without notice from his employment; (b) suspension without pay from his employment for such period as the employer thinks fit. (2) An exercise of authority under subsection (1) shall be effectual in law notwithstanding the provisions of any Act or award. (3) Where an employer has imposed a penalty on an employee under subsection (1) he may- (a) rescind the imposition; (b) vary the penalty imposed; or (c) substitute the other penalty prescribed by that subsection for the penalty imposed, whereupon- in the case of a rescission, it shall be deemed that the penalty was never imposed on the employee in relation to whom the imposition has been rescinded; in the case of a variation, it shall be deemed that the penalty imposed was the penalty as so varied; in the case of a substitution, it shall be deemed that the penalty imposed was the substituted penalty. 28. Procedure upon detriment or penalty suffered ; Review . (1) Within 7 days after- (a) an employer has exercised his entitlement under section 24 in relation to an employee; (b) an employer has decided that section 25 is operative in relation to an employee; (c) an employer has established the penalty incurred by an employee under section 26; or (d) a penalty has been imposed, varied or substituted in respect of an employee under section 27, the employer shall give to the employee notification, in the form prescribed, of the detriment suffered by the employee or the penalty incurred by or imposed on the employee. (2) An employee to whom notification referred to in subsection (1) is given may within 21 days after his receipt of the notification, and at

Electricity Authorities Industrial Causes Act 1985, No. 10 157 no time thereafter, apply in the form prescribed to the prescribed authority that the authority shall review- the invoking of section 24 in the case referred to in paragraph (a) of subsection (1); the occasion for the operation of section 25 in the case referred to in paragraph (b) of subsection (1); the exaction of the penalty or a part thereof in the case referred to in paragraph (c) of subsection (1); or the penalty in the case referred to in paragraph (d) of subsection M. (3) An employee to whom notification referred to in subsection (1) should have been but has not been given may within 21 days after he becomes aware of the detriment suffered by him or the penalty imposed on or to be exacted against him, and at no time thereafter, apply in the form prescribed to the prescribed authority that the authority shall review- the invoking of section 24; the occasion for the operation of section 25; the exaction of the penalty or a part thereof; or the penalty, whichever is appropriate, as prescribed by subsection (2). (4) Except as is provided by section 29- the invoking of section 24; the operation of section 25; the incurring of a penalty under section 26; or the imposition variation or substitution of a penalty under section 27, shall not be questioned in any proceeding whatever , before any court or elsewhere. 29. Institution and disposal of s. 28 applications . (1) An application under section 28 to the prescribed authority may be instituted only upon the ground that the employee has not participated in a strike or, in the case of an application to review the exaction of part of a penalty incurred under section 26, that the employee has not incurred that part under that section. (2) The making of an application to the prescribed authority does not stay the detriment, the penalty or the exaction of the penalty in respect of which a review is sought. (3) The prescribed authority to which application is made under section 28 shall cause to be made such investigation into the matter of

158 Electricity Authorities Industrial Causes Act 1985, No. 10 the application as it thinks fit and shall determine whether the ground of the application has been established. If the prescribed authority is satisfied that the ground of the application has been established it may order all necessary re-instatements, rectifications and payments to be made to give effect to its determination. (4) The determination of the prescribed authority upon a review shall not be questioned in any proceeding whatever, before a court or elsewhere, and its orders shall be given effect by the employer. 30. Avoidance of penalties prohibited . (1) It is not legally competent to a member of the tribunal to make any decision or recommendation or give any other indication that would relieve or is directed to relieving an employee of a penalty incurred by him under section 25 or 26 or imposed on him pursuant to section 27 and, to the extent that any such decision, recommendation or indication does so it shall be of no force or effect. (2) To the extent that an agreement or arrangement made between an employer and an employee or an industrial union of employees is directed to- (a) negating or avoiding the operation of section 25, 26 or 27; or (b) indemnifying or protecting an employee against the effect of the operation of section 25 or 26 or of anything done under section 27, the agreement or arrangement is of no force and effect. 31. Provisions to be brought to employees' notice. Each employer in an electricity calling shall take such steps as appear to him to be necessary and reasonable to bring to the knowledge of his employees the provisions of this Part or the substance thereof. PART V-MISCELLANEOUS PROVISIONS 32. Preservation of certain powers and duties . (1) No provision of this Act shall be construed to deprive or relieve- (a) the industrial registrar for the purposes of the Industrial Conciliation and Arbitration Act 1961-1985, while he continues to be registrar of the tribunal; or (b) any other person, other than a member of the Industrial Court or Industrial Commission, of any power, authority or duty had by him under the Industrial Conciliation and Arbitration Act 1961-1985 by reason that the matters in respect of which that Act empowers or requires him to act are matters that arise in or are connected with industrial causes committed by this Act to the jurisdiction of the tribunal or proceedings that are before or have been disposed of by the tribunal.

Electricity Authorities Industrial Causes Act 1985, No. 10 159 (2) In the application in respect of industrial causes committed by this Act to the jurisdiction of the tribunal of any provision of the Industrial Conciliation and Arbitration Act 1961-1985 that provides for the jurisdiction, powers and duties of the Industrial Commission or any person a reference therein to the Minister within the meaning of that Act shall be construed as a reference to the Minister within the meaning of this Act. (3) In the application in respect of- industrial causes committed by this Act to the jurisdiction of the tribunal; acts done by the tribunal in exercise of its jurisdiction; or any award, agreement, act or thing made or done in connexion with such industrial causes, of any provision of the Industrial Conciliation and Arbitration Act 1961- 1985 that confers a power or authority or imposes a duty on any person, other than a member of the Industrial Court or Industrial Commission, (a) a reference to the Industrial Commission or to a member thereof shall be construed as a reference to the tribunal or to a member thereof respectively; and (b) a reference to any award, agreement, act or thing made or done under the Industrial Conciliation and Arbitration Act 1961-1985 shall be construed as a reference to any award, agreement, act or thing made or done under this Act. 33. Regulations . The Governor in Council may make regulations providing for- (a) the jurisdiction, powers and duties of the registrar of the tribunal, if appointed under this Act; and ( b) all matters required or permitted by this Act to be prescribed.