Industrial Arbitration (Amendment) Act 1953 (NSW)

INDUSTRIAL ARBITRATION (AMENDMENT) ACT,

Act No. 42, 1953.

An Act to make certain provisions relating to membership of industrial unions of employees and long service leave of employees; for these and other purposes to amend the Industrial Arbitration Act, 1940-1952 ; and for purposes connected therewith. [Assented to, 17th December, 1953.]

lative Council and Legislative Assembly of New South	BE it enacted b y the Queen's Most Excellent Majesty, by and with the advice and consent of the Legis­
Wales in Par l iament assembled, and by the au thor i ty of t he same, as follows :—

1. (1) This Act m a y be cited as the " I n d u s t r i a l

Arb i t r a t i on (Amendment ) Act, 1953 . "

(2) The Indus t r i a l Arb i t r a t ion Act, 1940, as

amended by subsequent Acts , is in this Act re fer red to

a s the P r inc ipa l Act.

(3) The Pr inc ipa l Act, as amended by th is Act,

may	be cited as the Indus t r i a l Arb i t r a t i on Act, 1940-
1953.

2 .     The P r inc ipa l Act is amended—

(c)	by omit t ing from the same p a r a g r a p h the words " P r o v i d e d fu r ther tha t no a w a r d shall be made for the payment of wages or remunera t ion of	persons
(a) by omit t ing from p a r a g r a p h	(a)	of	subsection

one of section twenty the words " thi r ty-f ive p o u n d s " and by inser t ing in lieu thereof the

words	" f o r t y	p o u n d s " ;
(b)	by omit t ing from the same p a r a g r a p h the	words

" o n e thousand seven hundred and fifty p o u n d s " and by inser t ing in lieu thereof the words " t w o

thousand p o u n d s " ;

persons occnpying manager i a l posi t ions unless such persons a re exclusively employed by the Commissioner for Rai lways , the Commissioner for Road T r a n s p o r t and T ramways , the

Metropol i tan Meat I n d u s t r y Commissioner,

The Mar i t ime Services B o a r d of New South

Wales , the Metropol i tan W a t e r , Sewerage a n d

Dra inage Board , the W a t e r Conservat ion a n d

I r r i ga t i on Commission, the B o a r d of F i r e Commissioners of New South Wales , or The H u n t e r Dis t r ic t W a t e r Board , or a r e employees of any city, shire, or municipal council, or a r e employees employed unde r the Police Regula­ t ion Act, 1899, or any s ta tu te passed in sub­

st i tut ion for or amendment of the s a m e " ;

(d)	by inserting in the same subsection after the
words " P r o v i d e d tha t an a w a r d af fec t ing" the
words "officers of e i ther House of P a r l i a m e n t
or pe rsons employed in e i ther of the
D e p a r t m e n t s of the Legis la tu re unde r the
sepa ra t e control of the P re s iden t or Speaker
or unde r the i r jo int control or a f fec t ing" ;
(e)	by omitting from the same subsection the words " s u c h e m p l o y e e s " and by inser t ing in lieu thereof the words " s u c h officers and employees" .

3 . The P r inc ipa l Act is fu r ther amended—

(a) by omit t ing p a r a g r a p h (a) of subsection one

of section 88c and by inser t ing in lieu thereof

the following p a r a g r a p h : —

" ( a ) (i) in the case of employees who have

whether before or af ter the com­ mencement of the Indus t r i a l Arb i t r a t ion (Amendment ) Act, 1953, completed a t least twen ty y e a r s ' service with an employer be—

(a)	in respect of twenty years' service so completed, th ree
months , and

(b)

(b)	in respect of each t en y e a r s ' service completed af ter such twenty years , six and one- half weeks, a n d
(c)	on the termination of the employee 's services, in respect of the number of y e a r s ' service completed since he las t became enti t led to an amount of long service leave, a p ropor t iona te amount on the basis of six and one-half weeks for ten
y e a r s ' service; and

(ii)  in the case of employees who have whether before or a f te r the com­ mencement of the Indus t r i a l

Arb i t r a t ion (Amendment ) Act,

1953, completed a t least ten y e a r s ' service but less than twenty y e a r s ' service with an employer and whose services with such employer a re t e rmina ted by the employer for any cause other t h a n ser ious misconduct or by the employee for any reason or by reason of the death of the employee af te r such commencement, be a p ropor t iona t e

amount on the basis of t h ree

months for twenty y e a r s ' service,

o r " ;

(b) by inserting at the end of the same subsection the following proviso and new subsect ion:—

Prov ided tha t an employee enti t led to long service leave in pursuance of the provis ions of s u b p a r a g r a p h (i) of p a r a g r a p h (a) of th i s subsection shall not be enti t led to long service leave in pursuance of the provisions of the said s u b p a r a g r a p h as enacted immediately before the commencement of the Indus t r i a l Arb i t r a t ion (Amendment ) Act, 1953, and any long service

leave

leave taken by an employee before such commencement in pursuance of the provis ions of s u b p a r a g r a p h (i) of p a r a g r a p h (a) of th i s subsection as enacted immediately before such commencement shall be deducted from the long service leave to which such employee is ent i t led under subpa rag raph (i) of p a r a g r a p h (a) of

th is subsection.

(1A) W h e r e an employee dies and any long service leave—

(a)	to which such employee was entitled has not been taken, or
(b)	accrues upon te rminat ion of the services of such employee by reason of
his dea th ;

the employer shall thereupon p a y to such employee 's personal represen ta t ive the wages t ha t would have been payable to such employee in respect of such long service leave less any amount a l ready pa id to the employee in respect of any such long service leave.

Any amount payable by the employer under th is subsection and not pa id may, wi thout prejudice to any other mode of recovery thereof, be recovered by the personal represen ta t ive a s unpa id wages due and payable to him under an a w a r d or indus t r ia l agreement by the employer concerned,

(c) by inserting next after subsection four of the same section the following new subsection:—

(4A) Any exemption g ran t ed p u r s u a n t to

subsection four of th is section shall not apply

to an employer in respect of any employee who, within a per iod of th ree months af ter the da te of commencement of the Indus t r i a l Arb i t r a t i on (Amendment ) Act , 1953, or the da te from which such exemption takes effect, or the da te of commencement of his employment , as the case m a y require , has by notice in wr i t ing to the employer elected to be subject to the provis ions of the a w a r d or indus t r ia l agreement re la t ing to long service leave or sick leave, as the case m a y be, in lieu of those provided for in such scheme.

Notwi ths tand ing

Notwi ths tanding any provision of any such scheme where an employee has given notice in wr i t ing as aforesaid, such employee shall be enti t led to such benefits unde r such scheme, other than long service leave or sick leave, as he would have been entit led to receive had he voluntar i ly left the service of the employer upon the date upon which such notice was g iven : Ex ­ cept as aforesaid upon such notice being given the r igh ts of the employee to any benefits unde r such scheme and the obligations unde r such scheme of the employer and any persons charged with the adminis t ra t ion of such scheme in respect of tha t employee and any person claiming under the employee or in respect of his employment shall cease and determine.

(d) by inserting next after subsection eight of the same section the following new subsect ion:—

(8A) (a) The t e rms of every a w a r d made p u r s u a n t to this section and in force a t the commencement of the Indus t r i a l Arb i t r a t ion (Amendment) Act, 1953, shall be deemed to be var ied, as f rom such commencement, to the extent necessary to give effect to the provis ions of subsection one of this section as amended by the said Act.

(b) As soon as pract icable af ter such

commencement the r e g i s t r a r shall v a r y the

t e rms of every a w a r d to which p a r a g r a p h (a) of th is subsection applies to give effect to the

t e rms of t ha t p a r a g r a p h .

The r e g i s t r a r may refer any m a t t e r a r i s ing

out of th is subsection to the commission for
direction.

The P r inc ipa l Act is fu r ther amended by inser t ing in subsection two of section ninety-six af ter the word " b u s i n e s s " the words " o r the premises in or upon which

4.

pe r sons a re employed by h im in such i n d u s t r y . "

5.     (1) The P r inc ipa l Act is fur ther amended—

(a) by omitting from subsection three of section one hundred and twenty-seven the words " t e n p o u n d s " and by inser t ing in lieu thereof the

words "f if ty p o u n d s " ;

(b) by omitting section 129A and by inserting in lieu thereof the following sect ion:—

129A. (1) The r e g i s t r a r may, on applicat ion

being made by any pe r son and on proof to his sat isfact ion tha t such person is the secre tary or a duly accredi ted represen ta t ive of an indus t r i a l union of employees whose members a r e engaged in an i ndus t ry in respect of which an a w a r d or indus t r i a l ag reement is in force,

issue to t ha t pe r son in wr i t ing an en t ry	and
inspection	permi t .

(2) The pe r son to whom any such en t ry and inspection pe rmi t has been issued may, if such pe rmi t is for the t ime being in force—

(a) enter the premises of any employer engaged in any such indus t ry—

(i)   during any lunch hour or non- working t ime for t he pu rpose of in terviewing employees on

legi t imate union bus iness ;

(ii) during working hours for the

suspected breach of th is Act or
purpose of inves t iga t ing a n y
of any a w a r d or indus t r i a l agreement in force in re la t ion
to such i n d u s t r y ;
(b)	for the purpose of investigating any suspected breach of th is Ac t or of any a w a r d or indus t r i a l ag reement in force in re la t ion to such indus t ry , r equ i re any employer engaged in such i ndus t ry to produce for his inspect ion du r ing the usua l office hour s a t the employer ' s

office

office or other convenient place any t ime and pay sheets kept by him in r ega rd to employees in such indus t ry , and may make copies of the entr ies in such t ime and pay sheets re la t ing to any such suspected breach.

In this subsection " p r e m i s e s " includes any

building, mine, mine working, ship, vessel, or place of any kind wherein or in respect of which any indus t ry is car r ied on or any work is being or has been done or commenced.

(3) An en t ry and inspection permi t—

(a)	shall remain in force until it expires in accordance with p a r a g r a p h (b) of this subsection or is revoked in pur­ suance of the provisions of this section;
(b)	shall expire when the person to whom it was issued ceases to be the secre tary or a duly accredited representa t ive of the indust r ia l union and notification of such cessation has been given to the r e g i s t r a r ;
(c)	may be revoked by the registrar if ho is satisfied tha t the person to whom it was issued has wilfully hampered or h indered employees dur ing the i r working t ime or has otherwise acted in an improper manner in the exercise or pu rpo r t ed exercise of any power
conferred on him by this section.

Any decision of the r eg i s t r a r revok­

ing any en t ry and inspection permi t shall be subject to appeal to the commission as prescribed.

(4) Nothing in this section shall

author ise a secre tary or duly accredited

represen ta t ive of an indus t r ia l union of employees to enter a p r iva te dwelling house, or the land used in connection therewith, unless some manufac ture or t r ade in which labour is employed is car r ied on therein.

47055—9 (5)

(5) Any person who hinders o r

obst ructs the holder of an en t ry and inspection pe rmi t for the t ime being in force in the exer­ cise of any power conferred on him by t h i s section shall be liable to a pena l ty not exceeding

fifty pounds .

(6) A person to whom an en t ry a n d inspect ion pe rmi t has been issued p u r s u a n t to th i s section shall upon the expi ry or revocation of such pe rmi t r e t u r n such pe rmi t to t h e r e g i s t r a r for cancellation. Any person fa i l ing to comply wi th the provis ions of th is subsection shall be liable to a pena l ty not exceeding fifty pounds .

(2) The t e rms of every a w a r d or indus t r ia l

agreement which is in force a t the commencement of th is Act and in which provis ions have been inser ted p u r s u a n t to subsection one of section 129A of t he P r inc ipa l Act shall as from such commencement be deemed to be va r ied by omit t ing such provis ions there­ from. As soon as pract icable af ter such commencement the r e g i s t r a r shall v a r y the t e rms of every such a w a r d or indus t r ia l agreement to give effect to the provis ions of this subsection.

The Pr inc ipa l Act is fur ther amended by inser t ing next af ter section 129A the following new sect ion:—

6.

129B. (1) An employer engaged in a n y

indus t ry or calling to which an a w a r d or indus­

t r ia l agreement re la tes or appl ies shall give absolute preference of employment to members of the indus t r i a l union or unions engaged in such indus t ry or calling.

(2) W h e r e an adul t pe r son is , a t the

da te of commencement of the Indus t r i a l Arb i ­

t r a t i on (Amendment ) Act, 1953, employed by an employer in any indus t ry or calling to which an a w a r d or indus t r i a l ag reement re la tes or appl ies , or af ter such commencement enters

into

into employment wi th an employer in any such indus t ry or calling, or is employed by an employer in an indus t ry or calling to which no a w a r d or indus t r ia l agreement relates or applies and an award or indust r ia l agree­ ment is made in respect of such indus t ry or calling, such adul t person shall not con­ t inue in such employment a f te r the expira­ t ion of a per iod of twenty-eight days from the date of commencement of the Indus t r i a l Arb i t r a t ion (Amendment) Act, 1953, or such en t ry into employment or the da te on which the a w a r d or indus t r ia l agreement so made becomes operat ive , as the case m a y require , unless—

(a)	he is a financial member of an indus­ t r ia l union of employees whoso mem­ bers are engaged in such indus t ry or
cal l ing; or
(b)

he has applied to be admitted as a (3) An employer bound by an award or

indust r ia l agreement shall no t knowingly continue in employment in any posit ion or employment subject to the award or indust r ia l agreement any adul t person who contravenes or fails to observe the provisions of subsection two of this section.

(4) E v e r y person who is obliged to

become a member of an indus t r ia l union of

provis ions of this section shall be enti t led to	employees in accordance wi th the foregoing
become a member of such union on applicat ion made in accordance with i ts rules and in so f a r as the rules of any such union are inconsistent wi th the provis ions of this subsection they shall be null and void.
(5) (a) No member of an indust r ia l union shall be expelled from such union except in accordance wi th the provisions of this subsection.

(b)

(b) Twenty-eight d a y s ' notice of the proposed expulsion shall be given to such member .

(c) Within the said per iod of

twenty-eight days such member may apply to the commission for an order r e s t r a in ing the union from continuing with the expulsion and pending the decision of the commission no fur ther s teps shall be taken by the union in connection with the expulsion.

(d) Upon any such applicat ion the commission shall, as soon as pract icable, proceed to enquire into the reasons for the expulsion.
(e) (i) If the commission is sat is­ fied tha t the circumstances a re such as to justify the expulsion it may g r a n t leave to the union to proceed accordingly.

(ii) If the commission is not so satisfied it may make an o rder res t ra in ing the union from tak ing any fur ther s teps in connec­ t ion wi th the expulsion.

(G) F o r the purpose of this section—

(a) " a d u l t p e r s o n " means a person of

eighteen yea r s of age or upwards and every other person who is for the t ime being in receipt of not less than the minimum ra te of wages provided for adul t employees by the a w a r d or indus t r ia l agreement which re la tes or

applies to the indus t ry or calling in

which he is engaged;

(b) " i n d u s t r i a l a g r e e m e n t " includes any

ag reement affecting r a t e s of p a y or conditions of employment made under any Act other t han this A c t ;

(c) a person shall not be deemed to have appl ied for membersh ip of an indus­ t r i a l union unless he has appl ied for such membership in the manne r p r e ­ scribed by the rules of the union and

tendered

tendered any fee or subscript ion required by such r ides to be pa id or tendered by persons apply ing for such membership .

(7) Notwi ths tanding anyth ing con­

tained in this Act or the rules of an indus t r ia l union an employee shall not be compelled to pay in advance more than one-fourth of the amount prescr ibed by such rules as the annual fee or subscript ion payable for membership of such union.

(8) Any person who commits a breach of any of the provisions of subsection one, two or three of this section shall be liable to a penal ty not exceeding one hundred pounds . Proceedings for the recovery of such pena l ty m a y be taken by the secre tary of an indus t r ia l union concerned in the indus t ry or calling in which the person alleged to have committed the breach is engaged.

(9) (a) I n the event of a t r ade union

which is regis tered as an indus t r ia l union—

(i)   refusing or failing to admit to mem­ bership of such union any person entit led to be admit ted there to in pu r ­ suance of the provisions of subsection four of this section within a per iod of one month af ter applicat ion by such person for membership , or

(ii)   expelling any person from member­ ship of such union otherwise than in accordance with the provis ions of subsection five of this section,

the commission may order such t r ade union to p a y a penal ty not exceeding one hundred pounds .

(b) The provis ions of sections one hundred and twelve, one hundred and th i r teen and one hundred and fourteen of this Act shall apply, muta t i s mutand is , to and in respect of

the

the jur isdic t ion and powers conferred upon the commission by this section and any penal t ies imposed by the commission under this section.

(10) The foregoing provis ions of th is

section shall not app ly to or in respect of—

(a)	the employment in any industry or calling of a person who has been issued by the r e g i s t r a r p u r s u a n t to subsection eleven of this section with a certificate of exemption from membership of an indus t r ia l union of employees covering t h a t indus t ry or calling, if such certifi­ cate or any renewal thereof is for the t ime being in force ; or
(b)	the employment of any person to whom a certificate of exemption from union membership has been issued p u r s u a n t to p a r a g r a p h (b) of subsection two of section twenty of this Act if the per iod specified in such certificate or any renewal thereof has not exp i red ; or
(c)	the employment during a period of vacation of a bona fide s tudent of a
school, college or un ive r s i ty ; or
(d)	the employment of persons occupying
manager i a l pos i t ions ; or
(e)	the employment of any person who has appl ied for a certificate of exemption p u r s u a n t to subsection eleven of this section and whose applicat ion has not

been finally determined.

(11) (a) F o r the purposes of this sub­ section "conscient ious be l ief" includes any conscientious belief whether the grounds thereof a r e or a re not of a rel igious charac te r and whe ther the belief is or is not p a r t of the doctr ine of any religion.

(b) A n y person who—

(i)   objects on the grounds of conscientious belief to being a member of an indus­ t r ia l union of employees; and

(ii)

(ii) applies in the manner prescribed to

the r eg i s t r a r for a certificate of exemption from membership of any such un ion ; and

(i i i)   satisfies the r eg i s t r a r t h a t his objec­ t ions on the grounds of conscientious belief a r e genuine ; and

(iv)    pays to the r e g i s t r a r an amount equiva­ lent to the subscript ion prescr ibed by the rules of the indus t r ia l union for membership of such un ion ;

shal l be issued by the r eg i s t r a r with a certificate of exemption from membership of the indus t r ia l union.

(c) Any such certificate shall

remain in force for the per iod specified there in a n d m a y be renewed from time to t ime by the r eg i s t r a r upon payment of such amount , no t exceeding the amount re fer red to in sub­ p a r a g r a p h (iv) of p a r a g r a p h (b) of this

subsection, as the r eg i s t r a r m a y require .

(d) A n y amount received by the
r eg i s t r a r p u r s u a n t to this subsection shall be

pa id by him to the credit of the Consolidated

Revenue Fund .

(e) A n y pe r son whose applica­

t ion for a certificate of exemption from mem­ bership of an indus t r ia l union, or for any renewal thereof, unde r this subsection is refused, may within twenty-one days of the

decision of the r e g i s t r a r refusing the applica­

tion appea l in the m a n n e r prescr ibed to the commission from such decision. The commis­ sion m a y on such appeal make such order as it

th inks fit.

(12) Nothing in this section shall l imit

or in a n y way affect—

(a) the powers , author i t ies , duties or functions conferred or imposed upon the commission or a committee by any

other

other provisions of this Act except to the extent to which the exercise or perform- ance of any such power, authority, duty or function would be contrary to or inconsistent with the provisions of sub- sections one, two or three of this sec- tion.

(b)	the rights or obligations conferred or imposed on an employer or employee by any other provisions of this Act or by an award or industrial agreement;
(c)	any law relating to preference in employment to persons who have served as members of the naval, military or jiir forces of the Commonwealth.