Government Railways and Transport (Amendment) Act 1974 (NSW)

GOVERNMENT RAILWAYS AND TRANSPORT

(AMENDMENT) ACT.

ANNO VICESIMO TERTIO

ELIZABETHS II REGINS

Act No. 11,1974.

A n Act relating to the remuneration of officers employed under the Government Railways Act , 1912, or the Transport Act , 1930, w h o are required to work on certain bank or public hol idays; to make further provision with respect to the constitution of boards hearing certain appeals by any such officers; to confer o n the Workers' Compensat ion Commiss ion of N e w South Wales jurisdiction in relation to any such officers who are incapacitated by certain injuries; for these and other purposes to amend those Ac t s ; to validate certain matters; and for purposes connected therewith. [Assented to , 3rd April, 1974.]

P 57337—6

BE

BE it enacted by the Queen 's Most Excellent Majesty, by
and with the advice and consent of the Legislative
Council and Legislative Assembly of New South Wales in

Parliament assembled, and by the authority of the same, as

follows: —

1. This Act may be cited as the "Government Railway;

and Transport (Amendment) Act, 1974".

2. (1) Subject to subsection (2) , this Act shall

commence on the date of assent to this Act.

(2) Sections 3 (f) and 4 (d) shall commence on such day as may be appointed by the Governor in respect thereol and as may be notified by proclamation published in the Gazette.

3.     The Government Railways Act, 1912, is amended—

(a) (i) by omitting from section 17A (a) the word

"and" where lastly occurring;

(ii)   by inserting at the end of section 17A the

following new paragraphs:—

(c)	to acquire, construct and operate saw­ mills and to carry out all works and do all things necessary or proper in con­ nection therewith, including the acquisition of timber; and
(d)	to use, sell or otherwise dispose of the timber or any product of the timber produced from any such sawmill.

(b)

(b) by inserting in section 72 (2) after the word "cars" the words "or in connection with a sawmill (other than a sawmill associated with a workshop) operated by the Public Transport Commission of New South Wales";

(c) (i) by omitting section 87 (1) (c) and by

inserting instead the following paragraph:—

(c) the nominated member within the meaning of subsection (2) or (9) of section 87A, as the case may require.

(ii) by omitting section 87 (2 ) ;

(d) by inserting next after section 87 the following new section :—

87A. (1) In this section, except in so far as the context or subject-matter otherwise indicates or requires—

"industrial union" means an industrial union of employees registered under the Industrial Arbitration Act, 1940, or an association of employees registered as an organization under the Commonwealth Conciliation and Arbitration Act 1904 of the Parliament of the Commonwealth, as subsequently amended; "prescribed

"prescribed time'', in relation to an appeal,

means—

(a)	if no time is prescribed for the purposes of paragraph (b)—the expiration of the period of five days after the day on which notice of the decision appealed against was given to the appellant, as referred to in section 9 1 ; or
(b)	such time as may be prescribed for the purposes of this paragraph by regulations made under section 102,

or such earlier time as the chairman, at the request or with the consent of the appellant, determines;

"secretary", in relation to an industrial union, means the secretary or chief executive officer of the industrial union.

(2) For the purposes of paragraph (c) of subsection (1) of section 87, "the nominated member", in relation to an appeal, means an officer, being—

(a) if only one representative's nomination made under subsection (3) by the secretary of an industrial union of which the appellant is a member, or, if he is not a member of any industrial union, of an industrial union of which he is entitled or eligible to be a member, remains unrevoked at the prescribed time—that representative:

(b)

(b) if two or more representatives' nominations made under subsection (3) by the secretary of such a union, or of each of two or more such unions, remain unrevoked at the prescribed time—such one of those representatives—

(i)   as the appellant nominates by instrument in writing furnished to the secretary to the board within such period after the prescribed time as the chairman allows before the hearing of the appeal commences; or

(ii)   if the appellant does not make such a nomination within that period or any such further period or periods— as the chairman nominates before the hearing commences; or

(c) if there is no nomination made under subsection (3) by the secretary of such a union or no such nomination remains unrevoked at the prescribed time—such officer as the chairman nominates before the hearing commences.

(3) The secretary of an industrial union

of which officers are, or are entitled or eligible to

be, members—

(a)	may, by instrument in writing furnished to the secretary to the board, nominate an officer to be a representative for the purposes of this section; and
(b)	may, by instrument in writing so furnished, revoke that nomination.

(4)

(4) Without affecting paragraph (b) of subsection (3), a person's nomination as a repre­ sentative under subsection (3) shall, for the purposes of this section, be deemed to be revoked—

(a) if he notifies the secretary to the board, by instrument in writing, that he does not desire to continue as a representative so nominated;

(b) if he ceases to be an officer; or

(c) upon the expiration of the period (if any) specified in the instrument of his nomina­ tion as the period for which the nomination is to remain in force.

(5) A nomination may be made under subsection (3) generally or for a particular appeal and, unless expressed to have been made for a particular appeal, shall be deemed to have been made generally.

(6) While a nomination made by the secretary of an industrial union under subsection (3) for a particular appeal remains unrevoked, a nomination made generally by that secretary shall, for the purposes of that appeal only, be deemed to have been revoked.

(7) A nomination made under subsection

(3) for a particular appeal has no force or effect

for the purposes of any other appeal.

(8) For the purposes only of a particular

appeal, where—

(a)	a nomination made under subsection (3) remains unrevoked at the prescribed time; and
(b)	the nomination is revoked before the appeal is determined by the board,

the

the nomination shall, unless the chairman otherwise determines, be deemed to remain unrevoked until the appeal is so determined.

(9) Where, in relation to an appeal, a vacancy arises in the office of the nominated member after the prescribed time and before the appeal is determined, then, for the purposes of paragraph (c) of subsection (1) of section 87, "the nominated member", in relation to that appeal, means an officer nominated by the chairman.

(10) The secretary to the board may accept a nomination referred to in subparagraph (i) of paragraph (b) of subsection (2) notwithstanding that it is not communicated to him by an instrument in writing.

0	(i)	by inserting in the proviso to section 100A (1) after the words "Provided that" the words
", subject to subsection ( l c ) , " ;
(ii)	by inserting in section 100A (1) after the words "In this subsection" the words "and
subsections ( IB ) and ( l c ) " ;
(iii)	by inserting next before section 100A (2) the following new subsections : —
(1B) Any officer who is required to work on a bank or public holiday shall be entitled to pay at the rate of time and one-half for work performed on that day, except in so far as an award or industrial agreement applicable
to him provides for payment at a rate in excess
of that rate for any work so performed.
( l c ) Where an award or industrial agree­ ment referred to in subsection (1B) provides for payment at a rate in excess of double time for any work performed on a bank or public holiday, the officer shall not, in respect of that day, be entitled to leave on full pay at some future time, as provided for in the proviso to subsection (1), as well as to pay at such a rate.

(f)

(f) by inserting next after section 100c the following new section :—

IOOCA. (1) Subject to section 37 of the Work­ ers' Compensation Act, 1926, the Workers' Com­ pensation Commission of New South Wales (in this section referred to as "the Workers' Compensation Commission") shall have exclusive jurisdiction to examine into, hear and determine all matters and questions arising under subsections (1) , (2) and (3) of section 100B and subsection (2) of section 100c, and the action or decision of that Commission shall be final.

(2) Without affecting the generality of subsection (1), the jurisdiction of the Workers' Compensation Commission shall extend to determining—

(a)	the question whether an injury received by an officer entitles him to the benefits of section 100B or subsection (2) of section 100c;
(b)	the rate at which salary is payable to an officer who is entitled to the benefits of section 100B or subsection (2) of section 100c.

(3) For the purposes only of Part IV (subsection (4) of section 36 and sections 40, 41, 42 and 42A excepted) and section 50 of the Workers' Compensation Act, 1926, the jurisdiction

conferred on the Workers' Compensation Commis­sion by section 36 of that Act shall be deemed to

include the jurisdiction conferred by this section.

(4) The provisions of sections 51, 53B, 53c, 53D, 56, 62A and 70 of the Workers' Compen­ sation Act, 1926, and, except in so far as the rules made under that Act otherwise provide, those rules, shall apply to and in respect of proceedings with respect to any matter or question that is within the jurisdiction of the Workers' Compensation Commis­ sion by virtue of this section in the same way as

they

they apply to and in respect of proceedings with respect to any matter or question that is within the jurisdiction of that Commission by virtue of section 36 of that Act.

(5) Without affecting the generality of the foregoing provisions of this section, the power to make rules conferred on the Workers' Compensa­ tion Commission by the Workers' Compensation Act, 1926, extends to the making of rules for or with respect to—

(a)	regulating the procedure and practice of that Commission in dealing with proceedings with respect to any matter or question that is within the jurisdiction of that Commis­ sion by virtue of this section, including the commencement of those proceedings; and
(b)	prescribing all matters that are necessary or convenient to be prescribed by rules in relation to the exercise of the jurisdiction conferred upon that Commission by this section.

(6) Where, but for the enactment of this section, any provisions of this Act would have applied to or in respect of any proceedings in any court with respect to any person's entitlement under subsection (1), (2) or (3) of section 100B or sub­ section (2) of section 100c, those provisions shall apply to or in respect of any such proceedings in

the Workers' Compensation Commission.
(g)	by omitting from section 100D (3) (b) the word "six" and inserting instead the word "twelve".

(h) by omitting the Third Schedule.

4. The Transport Act, 1930, is amended—

(a) by omitting section 114 (1) (c) and by inserting instead the following paragraph :—

(c) an officer, being—

(i)   if there is an officer who was elected for the purposes of the paragraph which this paragraph replaces before its repeal by the Government Rail­ ways and Transport (Amendment) Act, 1974, and who would, but for the enactment of that Act, have been the member of the board for the purpose of hearing and determining the appeal, and who is willing and able to act as such a member—that officer; or

(ii)   in any other case—the nominated member within the meaning of sub­ section (2) or (9) of section 114A, as the case may require.

(b)	by inserting next after section 114 the following new section :—
114A. (1) In this section, except in so far as the context or subject-matter otherwise indicates or

requires—

"industrial union" means an industrial union of employees registered under the Industrial Arbitration Act, 1940, or an association of employees registered as an organization under the Commonwealth Conciliation and Arbitration Act 1904 of the Parliament of the Commonwealth, as subsequently

amended; ;

"prescribed

"prescribed time", in relation to an appeal,

means—

(a)	if no time is prescribed for the purposes of paragraph (b)—the expiration of the period of five days after the day on which notice of the decision appealed against was given to the appellant, as referred to in section 115c; or
(b)	such time as may be prescribed for the purposes of this paragraph by regulations referred to in section 263,

or such earlier time as the chairman, at the request or with the consent of the appellant, determines;

"secretary", in relation to an industrial union, means the secretary or chief executive officer of the industrial union.

(2) For the purposes of paragraph (c) of subsection (1) of section 114, "the nominated member", in relation to an appeal, means an officer, being—

(a)	if only one representative's nomination made under subsection (3) by the secretary of an
industrial union of which the appellant is a member, or, if he is not a member of any industrial union, of an industrial union of

which he is entitled or eligible to be a mem­ ber, remains unrevoked at the prescribed time—that representative;

(b) if two or more representatives' nominations made under subsection (3) by the secretary of such a union, or of each of two or more

such

such unions, remain unrevoked at the prescribed time—such one of those representatives—

(i)   as the appellant nominates by instru­ ment in writing furnished to the secretary to the board within such period after the prescribed time as the chairman allows before the hear­ ing of the appeal commences; or

(ii)   if the appellant does not make such a nomination within that period or any such further period or periods— as the chairman nominates before the hearing commences; or

(c) if there is no nomination made under subsection (3) by the secretary of such a union or no such nomination remains unrevoked at the prescribed time—such officer as the chairman nominates before the hearing commences.

(3) The secretary of an industrial union of which officers are, or are entitled or eligible to be, members—

(a)	may, by instrument in writing furnished to the secretary to the board, nominate an officer to be a representative for the purposes of this section; and
(b)	may, by instrument in writing so furnished,

revoke that nomination.

(4) Without affecting paragraph (b) of

subsection (3), a person's nomination as a repre­ sentative under subsection (3) shall, for the purposes of this section, be deemed to be revoked—

(a) if he notifies the secretary to the board, by instrument in writing, that he does not desire to continue as a representative so nominated;

(b)

(b) if he ceases to be an officer; or

(c) upon the expiration of the period (if any) specified in the instrument of his nomination as the period for which the nomination is to remain in force.

(5) A nomination may be made under subsection (3) generally or for a particular appeal and, unless expressed to have been made for a particular appeal, shall be deemed to have been made generally.

(6) While a nomination made by the secretary of an industrial union under subsection (3) for a particular appeal remains unrevoked, a nomination made generally by that secretary shall, for the purposes of that appeal only, be deemed to have been revoked.

(7) A nomination made under subsection (3) for a particular appeal has no force or effect for the purposes of any other appeal.

(8) For the purposes only of a particular

appeal, where—

(a)	a nomination made under subsection (3) remains unrevoked at the prescribed time; and
(b) the nomination is revoked before the appeal is determined by the board,

the nomination shall, unless the chairman otherwise determines, be deemed to remain unrevoked until the appeal is so determined.

(9) Where, in relation to an appeal, a vacancy arises in the office of the nominated member after the prescribed time and before the appeal is determined, then, for the purposes of

paragraph

paragraph (c) of subsection (1) of section 114, "the nominated member", in relation to that appeal, means an officer nominated by the chairman.

(10) The secretary to the board may accept a nomination referred to in subparagraph (i) of paragraph (b) of subsection (2) notwith­ standing that it is not communicated to him by an instrument in writing.

(c)	(i)	by inserting in the proviso to section 123 (1) after the words "Provided that" the words
", subject to subsection ( l c ) , " ;
(ii)	by inserting in section 123 (1) after the words "In this subsection" the words "and
subsections (1B) and ( l c ) " ;
(iii)	by inserting next before section 123 (2) the following new subsections :—
(1B) Any officer who is required to work on a bank or public holiday shall be entitled to pay at the rate of time and one-half for work performed on that day, except in so far as an award or industrial agreement applic­ able to him provides for payment at a rate in excess of that rate for any work so performed.

( l c ) Where an award or industrial agree­ ment referred to in subsection (1B) provides for payment at a rate in excess of double time for any work performed on a bank or public holiday, the officer shall not, in respect of that day, be entitled to leave on full pay at some future time, as provided for in the proviso to subsection (1), as well as to pay at such a rate.

(d)

(d) by inserting next after section 124A the following new section :—

124AA. (1) Subject to section 37 of the Work­ ers' Compensation Act, 1926, the Workers' Com­ pensation Commission of New South Wales (in this section referred to as "the Workers' Compensation Commission") shall have exclusive jurisdiction to examine into, hear and determine all matters and questions arising under subsections (1) , (2) and (3) of section 124 and subsection (2) of section 124A, and the action or decision of that Commission shall be final.

(2) Without affecting the generality of subsection (1) , the jurisdiction of the Workers' Compensation Commission shall extend to determining—

(a)	the question whether an injury received by an officer entitles him to the benefits of section 124 or subsection (2) of section 124A;
(b)	the rate at which salary is payable to an officer who is entitled to the benefits of section 124 or subsection (2) of section 124A.

(3) For the purposes only of Part IV (subsection (4) of section 36 and sections 40, 41, 42 and 42A excepted) and section 50 of the Workers' Compensation Act, 1926, the jurisdiction

conferred on the Workers' Compensation Commis­	sion by section 36 of that Act shall be deemed to
include the jurisdiction conferred by this section. (4) The provisions of sections 51, 53B, 53c, 53D, 5,6, 62A and 70 of the Workers' Compen­ sation Act, 1926, and, except in so far as the rules made under that Act otherwise provide, those rules, shall apply to and in respect of proceedings with respect to any matter or question that is within the

jurisdiction

jurisdiction of the Workers' Compensation Commis­ sion by virtue of this section in the same way as they apply to and in respect of proceedings with respect to any matter or question that is within the jurisdiction of that Commission by virtue of section 36 of that Act.

(5) Without affecting the generality of the foregoing provisions of this section, the power to make rules conferred on the Workers' Compen­ sation Commission by the Workers' Compensation Act, 1926, extends to the making of rules for or with respect to—

(a)	regulating the procedure and practice of that Commission in dealing with proceed­ ings with respect to any matter or question that is within the jurisdiction of that Com­ mission by virtue of this section, including the commencement of those proceedings; and
(b)	prescribing all matters that are necessary or convenient to be prescribed by rules in relation to the exercise of the jurisdiction conferred upon that Commission by this section.

(6) Where, but for the enactment of this section, any provisions of this Act would have applied to or in respect of any proceedings in any court with respect to any person's entitlement under subsection (1) , (2) or (3) of section 124 or sub­

section (2) of section 124A, those provisions shall
apply to or in respect of any such proceedings in the Workers' Compensation Commission.
(e)	by omitting from section 124B (3) (b) the word "six" and inserting instead the word "twelve".

(f)

(f) by omitting section 263 (a).

Any act, matter or thing that was done or omitted at any time before the date of assent to this Act and that would have been valid had the amendments made by this Act (sec­ tions 3 (f) and 4 (d) excepted) been in force at that time is hereby validated.

5 .

6. (1) In this section, "proceedings" means proceedings with respect to any person's entitlement under section 100B ( I ) , (2) or (3) or section 100c (2) of the Government Rail­ ways Act, 1912, or under section 124 (1), (2) or (3) or section 124A (2) of the Transport Act, 1930.

(2) Any proceedings commenced before the date of commencement of sections 3 (f) and 4 (d), and any proceed­ ings not so commenced but in relation to which a notice has been given in accordance with section 144 of the Government Railways Act, 1912, or section 233 of the Transport Act, 1930, as the case may be, may be continued or commenced, as the case may be, and heard and determined, in all respects as if this Act had not been enacted.

HUNTER