Industrial Arbitration Amendment Act (No. 2) 1982 (WA)

WESTERN AUSTRALIA.

INDUSTRIAL ARBITRATION

(No. 2).

No. 121 of 1982.

AN ACT to amend the Industrial Arbitration Act

1979-1982.

[Assented to 9 December 1982.]

BE it enacted by the Queen's Most ExcellentMajesty, by and with the advice and consent of the Legislative Council and the Legislative Assembly of Western Australia, in this present Parliament assembled, and by the authority of the same, as follows:—

Short title

1. (1) This Act may be cited as the Industrial

and citation.

Arbitration Amendment Act (No. 2) 1982.

Act No. 114 of

(2) In this Act the Industrial Arbitration Act 1979-1982 is referred to as the principal Act.

1979 as

amended by

Acts Nos. 82 of 1980, 11 of 1981 and 10

of 1982.

The principal Act as amended by this Act may be cited as the Industrial Arbitration Act 1979-1982.

(3)

No. 121.] Industrial Arbitration (No. 2).

(1982.

Section 7

amended.

2. Section 7 of the principal Act is amended in

subsection (1)-

(a) by inserting after "reward;" in paragraph (c) of the definition of "employee" the following-

" and "

(b)	in the definition of "industrial matter" by

(1) inserting after "section 6;" in sub- paragraph (i) of paragraph (g) the following-

" and "

(ii) deleting "Act, 1912 for a benefit greater than" in paragraph (j) and substituting the following-

" and Assistance Act 1981 for a

benefit different from " ;

(iii) deleting "a union," in subparagraph (iii) of paragraph (k) and substitut- ing the following-

" a union; " ; and

(iv) inserting after subparagraph (iii) of paragraph (k) the following sub- paragraph

" (iv) housing rentals, collection of union dues and matters of managerial prerogative, " ;

and

by inserting after the definition of "sub-

(c)	section" the following definition

C C

"the District Court" means The District Court of Western Aust- ralia established under the District Court of Western Australia Act

1969; " .

1982.]

Industrial Arbitration (No. 2). [No. 121.

Section 9

Section 9 of the principal Act is amended in

paragraph (a) of subsection (3) by inserting after

"Territory" the following-

amended.

" of the Commonwealth " .

4. Section 16 of the principal Act is amended— =der.

(a)	by repealing subsection (1) and substitut- ing the following subsection

(1) The President may

(a)	allocate the work of the Com- missioners;
(b)	allocate matters directly to the Commission in Court Session;

and

(c)	notwithstanding that he has allocated a matter to a Com- missioner, revoke that alloca- tion and allocate the matter directly to the Commission in Court Session,

but shall delegate those powers to the Chief Industrial Commissioner unless in any particular case, after consulta- tion with the Chief Industrial Commis- sioner, the President is of the opinion that he should assign

(d)

to a Commissioner or Commis-

sioners; or

(e)

to the Commission in Court Session,

as the case requires, a matter falling within the jurisdiction of the Commis- sion. " ; and

No. 121.] Industrial Arbitration (No. 2).

[1982.

(b) in subsection (2) by deleting-

(i) paragraph (a) and substituting the following paragraph-

" (a) shall, subject to subsection (1), exercise the powers delegated to him under that subsection; " ; and

(ii) "members of the Commission" in paragraph (d) and substituting the following-

" Commissioners " .

Section 17

Section 17 of the principal Act is amended by

inserting after subsection (3) the following sub-

section

amended.

(4) If, under this section, a person receives an appointment to act in an office, the rights and obligations of the person in relation to the office are, subject to the term of that appointment, as prescribed for the office. " .

Section 20

amended.

Section 20 of the principal Act is amended

(a)	in subsection (6) by inserting before "ceases to be a contributor" the following-

" , for the purposes of that Act, " ;

(b)	in subsection (7) by deleting "Tribunal"; and
(c)	in subsection (10) by inserting after "leave of absence" the following-

" and to lump sum payments on ceasing to hold office for the money equivalent of leave of absence " .

Section 23

amended.

7. Section 23 of the principal Act is amended

by deleting "Tribunal" in

(a)	subparagraph (ii) of paragraph (b) of sub- section (1); and
(b)	subparagraph (ii) of paragraph (b) of sub- section (3).

1982.]

Industrial Arbitration (No. 2). [No. 121.

8. Section 25 of the principal Act is amended 2ggfctier.

in subsection (5) by inserting after "thinks fit;" in

paragraph (a) the following-

" and " .

9. Section 26 of the principal Act is amended in =cta6

subsection (1) by

(a)	deleting "and" at the end of paragraph (b);
(b)	deleting "the community as a whole." in paragraph (c) and substituting the following-

" the interests of the community as a whole; and " ; and

(c)	inserting after paragraph (c) the following paragraph-

" (d) shall in having regard for the interests of the community as a whole under paragraph (c) take into consideration-

(i) the state of the national

economy;

(ii) the state of the economy of Western Australia;

(iii) the capacity of employers as a whole or of an individual employer to pay wages, salaries, allowances or other remuneration and to bear the cost of improved or additional conditions of em- ployment;

(iv) the likely effects of its decision on the economies referred to in subparagraphs (i) and (ii) and, in partic- ular, on the level of employment and on in- flation. " .

No. 121.] Industrial Arbitration (No. 2).

[1982.

Section 27

amended.

10. Section 27 of the principal Act is amended

(a)	in subsection (1) by deleting paragraph (g); and
(b)	by inserting after subsection (1) the following subsection

l4 (la) Except as otherwise provided in

this Act, the Commission shall, in relation to any matter before it, conduct its proceedings in public unless the Commission, at any stage of the proceedings, is of the opinion that the objects of the Act will be better served by conducting the proceedings in private. " .

Section 29

amended.

11. Section 29 of the principal Act is amended by inserting after subsection (2) the following sub- section

(3) An employee referring a claim to the Commission under subsection (2) and the other party to the claim may appear before the Commission in person or by legal practitioner or agent in connection with the claim. " .

Section 31.

amended.

12. Section 31 of the principal Act is amended in subsection (4) by deleting "Where" and substituting the following-

" Subject to section 29 (3), where "

Section 33

amended.

13. Section 33 of the principal Act is amended in paragraph (c) of subsection (1) by deleting "reason- able excuse" and substituting the following-

" good cause " .

Section 35

amended.

14. Section 35 of the principal Act is amended in subsection (1) by inserting, after "Subject to this section", the following-

" and to section 45 " .

1982.]

Industrial Arbitration (No. 2). [No. 121.

15. Section 41 of the principal Act is amended in =n al.

paragraph (e) of subsection (2) by inserting before

"otherwise" the following-

" not " .

16. The principal Act is amended by inserting =pa 4.41A

after section 41 the following section

41A. As soon as a union or association or logiglacuagil

an employer—

action.

(a)	becomes aware of the occurrence or continuance of industrial action affecting the union, association or employer, as the case requires; or
(b)	is of the opinion that industrial action affecting the union, associa- tion or employer, as the case requires, is likely to occur,

it or he shall forthwith notify the Registrar

accordingly. " .

17. Section 43 of the principal Act is repealed and ggicaldi3and

the following section is substituted—

substituted.

c C

43. (1) The Commission shall endeavour R,Z°,/ssion

by all means reasonable in the circumstances gErtettetgby

of the case to settle by conciliation all matters conciliation.

which come before it.

(2) Notwithstanding subsection (1), the Commission may proceed to deal with a matter by arbitration

(a)

if it is satisfied that further resort to conciliation would be unavailing; or

(b)

without first resorting to conciliation

if-

(i) the matter involves the ascer- tainment or declaration of an existing right;

No. 121.] Industrial Arbitration (No. 2).

[1982.

(ii) the parties to the matter request the Commission so to do; or

(iii) the matter has been trans- mitted to the Commission under section 961.

(3) Notwithstanding subsection (1), the Commission may proceed to deal with a matter referred to in subsection (1) (a) of section 45 by making an order under that subsection without first resorting to concilia- tion. " .

Section 44

amended.

18. Section 44 of the principal Act is amended by repealing subsection (7) and substituting the following subsection-

.	(7) The Commission may exercise the power conferred on it by subsection (1)-

(a) on the application of-

(i)

any union, association or

employer;

(ii)

the Attorney General on behalf

of the State; or

(iii) an employee in respect of a dispute relating to his entitle- ment to long service leave;

(b)	on the motion of the Commission itself whenever industrial action has occurred or, in the opinion of the Commission, is likely to occur. " .

Section 45

amended..

19. Section 45 of the principal Act is amended—

(a) in subsection (1) by deleting-

(i) "the merits of" in subparagraph (i) of paragraph (a);

(ii) ", subject to paragraph (a) of sub- section (1) of section 43," in sub- paragraph (ii) of paragraph (a); and

1982.]	Industrial Arbitration (No. 2). [No. 121.
(iii) paragraph (b) and substituting the following paragraph

'C (b) where the matter is not, or

does not relate to, an industrial matter, enquire into the matter and-

declare that the

(i) matter is one which should not be dealt with further under this Act; or

(ii) for the purpose of paragraph (g) of the definition of "indus- trial matter" in sec- tion 7 (1), advise the Attorney General in writing of the matter in relation to which the industrial action has occurred or is, in the opinion of the Commission, likely to occur. " ;

(b)	by inserting after subsection (1) the following subsection

CC (la) The institution of an appeal

under section 49 from an order made under subsection (1) (a) (ii) does not stay the operation of that order. " ;

and

(c)	by repealing subsection (3) and substitut- ing the following subsections

t l

(3) The Commission shall

(a) if it gives or makes a direction, order or declaration orally under subsection (1), reduce the direction, order or declara- tion to writing as soon as is practicable thereafter;

No. 121.] Industrial Arbitration (No. 2).

[1982.

(b)	preface each direction, order or declaration given or made by it under subsection (1)-

(i) if so given or made in writing, at the time of that giving or making; or

(ii) if so given or made orally, at the time of the reduction of that direc- tion, order or declara- tion to writing,

with a preamble in writing setting out the circumstances which led to the giving or making of that direction, order or declaration; and

(c)	make the text of each direc- tion, order or declaration given or made by it under subsection (1) and of the preamble thereto available to the parties as soon as is practicable after that giving or making.

(4) Subject to subsections (5), (6) and (7), only the Registrar or Deputy Registrar may institute proceedings against a person for contravention of or failure to comply with an order made under or for the purposes of this section.

(5) The Registrar or Deputy Reg- istrar shall not institute proceedings under subsection (4) unless the Com- mission, subject to subsection (6), so directs.

(6) If the Commission wishes to make a direction under subsection (5) and is not at that time constituted by or does not at that time include the

1982.]

Industrial Arbitration (No. 2). [No. 121. Chief Industrial Commissioner, it shall consult the Chief Industrial Commis- sioner before making the direction.

(7) The Commission is not obliged to give or refrain from giving a direc- tion under subsection (5) in any case merely because it has given or refrained from giving such a direction in any other case. " .

20.

in subsection (4) by deleting paragraph (a) and

substituting the following paragraph

Section 49 of the principal Act is amended amended'

(a)

shall be heard and determined on the evidence and matters raised in the proceedings before the Commission or, in the case of an appeal from a direction, order or declaration given or made under section 45 (1), on the circumstances set out in the preamble prefacing that direc- tion, order or declaration; and " .

21.

amended by inserting after section 49 the following

section—

Division 2 of Part II of the principal Act is ig=d4.9A

Decisions of

"	49A. (1) If the Attorney General considers Commission

may be

that any decision of the Commission—

refer red to Full Bench at instance of Attorney-

(a)	is inconsistent with this Act;	General.
(b)	is erroneous in law; or
(c)	is in excess of jurisdiction,

he may at any time after the making of that decision apply to the Full Bench for that decision to be corrected.

No. 121.] Industrial Arbitration (No. 2).

[1982.

(2) The Full Bench may on an application made under subsection (1)-

(a) correct the decision concerned; or (b) dismiss that application.

(3) When under subsection (2) the Com- mission corrects a decision, the decision as so corrected shall be in terms which could have been awarded by the Commission that gave the decision.

(4) In this section

"the Commission" means the Commission constituted by a Commissioner or by the Commission in Court Session, but does not include the Full Bench or the Commission exercising juris- diction under section 48 (13). " .

Section 65

repealed and

22. Section 65 of the principal Act is repealed

substituted.

and the following section is substituted-

Audit and

filing of	65. The secretary of each union shall
accounts of union.

(a)	cause the accounts of that union to be properly audited by a person registered as an auditor under section 18 of the Companies (Western Australia) Code (in this section called "the auditor") within 6 calendar months after the end of each financial year of that union; and
(b)	within one calendar month after the completion of the audit referred to in paragraph (a), deliver to the Registrar-

(i) a balance sheet of the assets

and liabilities of that union

audited by the auditor and

1982.]

Industrial Arbitration (No. 2). [No. 121.

made up to the date of the closing of the accounts of that union in respect of the financial year concerned; and

(ii) a statement of the receipts and expenditure of that union during the financial year concerned audited by the auditor.

Penalty: $1000. "

23. Section 73 of the principal Act is amended— 2=1,

(a)	in subsection (13) by deleting "Penalty: $2 000."; and
(b)	by inserting after subsection (13) the following subsections-

ff (14) An employer who contravenes

subsection (13) commits an offence and

is liable

(a)	in the case of an individual, to a penalty of-

(i) not less than $400; and

(ii) not more than $5 000;

(b)	in the case of a corporation within the meaning of section 5 of the Companies (Western Australia) Code, to a penalty of-

(i) not less than $1 000; and

(ii) not more than $10 000,

No. 121.] Industrial Arbitration (No. 2).

[1982.

and, if that offence is a continuing one, to a further penalty of not more than $500 for every day or part thereof during which that offence has continued.

(15) The penalties referred to in subsection (14) (a) (i) and in subsec- tion (14) (b) (i) are irreducible in mitigation notwithstanding anything in the Justices Act 1902, The Criminal Code and the Offenders Probation and Parole Act 1963. "

Section 74

amended.

24. Section 74 of the principal Act is amended

(a)	in subsection (2) by inserting after "the President" the following

or, in the absence of the President, from the Chief Industrial Commis- sioner "

(b)	in subsection (6) by deleting "penalty not exceeding $2 000." and substituting the following

penalty of

(e)	not less than $1 000; and
(f)	not more than $10 000,

and, if that offence is a continuing one, to a further penalty of not more than $500 for every day or part thereof during which that breach has continued. "

(c)	by inserting after subsection (6) the

following subsection

4C (6a) The penalty referred to in sub-

section (6) (e) is irreducible in mitiga- tion notwithstanding anything in the

1982.]

Industrial Arbitration (No. 2). [No. 121. Justices Act 1902, The Criminal Code and the Offenders Probation and Parole Act 1963. " ;

(d)	by repealing subsection (8) and substitut- ing the following subsections

(8) Subject to subsection (8a), when a penalty is imposed on a union under subsection (6) and the union does not forthwith pay the penalty, the rights of the union and its members referred to in subsection (9) are suspended until the penalty is paid.

(8a) The Full Bench may permit a union on which a penalty is imposed under subsection (6) to pay the penalty within such period not exceeding 7 days from that imposition as the Full Bench, thinks fit, in which case the rights of the union and its members referred to in subsection (9) are, if the penalty is not paid within that period, suspended from the end of that period until the penalty is paid. " ;

and

(e)	in subsection (9) by deleting "pursuant to subsection (8)" and substituting the following

under subsection (8) or (8a) " .

25. Section 82 of the principal Act is amended =IT

by inserting after subsection (2) the following

subsection

(3) Subject to subsection (4), proceedings under this Act in respect of a matter referred to in subsection (1) shall •be commenced within 12 months from the time when the matter arose.

No. 121.] Industrial Arbitration (No. 2).

[1982.

(4) If it is alleged that an employer has contravened or failed to comply with a provision of an award or order by not paying an employee of the employer the amount which that employee was entitled to be paid under that provision and if the employer is convicted of an offence against paragraph (a) or (b) of section 102 (1) by reason of having failed, within a period of 12 months from that alleged non-payment, to produce or exhibit a record relevant to that alleged non-payment or to allow such a record to be examined or to answer a question relevant to that alleged non-payment truthfully to the best of his knowledge, information and belief, as the case requires, an application may be made under section 83 in respect of that alleged non-payment within the period of 12 months from that conviction. " .

Section 83

amended.

26. Section 83 of the principal Act is amended by repealing subsection (5) and substituting the following subsection

(5) An order may only be made under sub- section (4)—

(a)	in respect of any amount relating to a period not being more than 12 months prior to the commencement of the proceedings; or
(b)	if the employer concerned has been convicted of an offence against para- graph (a) or (b) of section 102 (1) by reason of having failed to produce or exhibit a record relevant to the proceedings or to allow such a record to be examined or to answer a question relevant to the proceedings

1982.]

Industrial Arbitration (No. 2). [No. 121. truthfully to the best of his know- ledge, information and belief, as the case requires, in respect of any amount relating to a period not being more than 12 months prior to that failure,

and, when the order is so made, that amount shall be deemed to be a penalty imposed under this Act and may be recovered accord- ingly, but on recovery shall be paid as stated in the order under subsection (6). " .

Section 89

27.

in subsection (1) by inserting after "Western

Australia," the following-

Section 89 of the principal Act is amended

amended.

" the Bailiff of the District Court, "

Section 92

28.

in subsection (4) by inserting after "on the Full

Bench" the following-

Section 92 of the principal Act is amended amended.

" or sitting or acting alone

Section 98

29.

Section 96 of the principal Act is amended

amended.

(a)	in subsection (1) by deleting "Co-ordina- tion" in subparagraph (iii) of paragraph (b) of the definition of "Government officer"; and
(b)	in subsection (6) by deleting ", 1945" in paragraph (e) and substituting the following

" 1979 " .

No. 121.] Industrial Arbitration (No. 2).

[1982.

Part VIA

Inserted.

30. The principal Act is amended by inserting

after Part VI the following Part

PART VIA.-PROTECTION OF MEMBERS AND NON-

MEMBERS OF EMPLOYEE ORGANIZATIONS.

Interpreta-

tion in

96A. (1) In this Part, unless the contrary "corporation" has the meaning given by section 5 of the Companies (Western Australia) Code;

Part VIA.

intention appears

"employee organization" means

(a) industrial union of employees, whether constituted, incor- porated or registered under this Act or any other Act or under any Act of the Parlia- ment of the Commonwealth and by whatever name called;

industrial association of em- ployees registered under sec- tion 67; or

association, society or other body that has applied to be constituted, incorporated or registered as an industrial union of employees referred to in paragraph (a) of this defi- nition;

"officer", in relation to a corporation, has the meaning given by section 5 of the Companies (Western Australia) Code;

"person" includes a body corporate and an employee organization which is not a body corporate.

1982.]

Industrial Arbitration (No. 2). [No. 121.

(2) A reference in this Part to

(a)	dismissal from employment includes a reference to termination of employment;
(b)	threatening includes a reference to making a statement that can reason- ably be interpreted as a threat.

Conduct by

96B. (1) A person who-

employers and others prejudicing

(a) dismisses an employee from, or injures him in, his employment, or	employees and others
by reason of membership

alters his position in his employment

or non-

membership

to his prejudice, or refuses to promote

of employeeorganiza-

him in his employment;

tions.

(b)	refuses to employ another person; or
(c)	directly or indirectly hinders or prevents the employment of another person or the promotion in his employment of an employee,

when a reason for doing so is that the

employee or other person

(d)	is or is not a member of an employee organization;
(e)	is an officer of an employee organiza- tion; or
(f)	is entitled to the benefit of an award or order,

commits an offence.

(2) A person who-

(a)	threatens to dismiss an employee who is-

not a member of an employee

(i) organization from, or to injure him in, his employment, or to alter his position in his employment to his prejudice, or to refuse to promote him in

No. 121.] Industrial Arbitration (No. 2).

[1982.

his employment, for the purpose of causing him to become; or

(ii) a member of an employee organization from, or to injure him in, his employment, or to alter his position in his employment to his prejudice, or to refuse to promote him in his employment, for the purpose of causing him to cease to be,

a member of an employee organiza-

tion; or

(b)	employs or offers to employ a person, or promotes or offers to promote an employee, who is-

(i) not a member of an employee organization on condition that that person or employee becomes, or undertakes to become; or

(ii) a member of an employee organization on condition that that person or employee ceases to be, or undertakes to cease to be,

a member of an employee

organization,

commits an offence.

(3) A person who-

(a)	advises, encourages or incites another person to engage in conduct in relation to a person or employee that would constitute an offence under subsection (1) or (2);
(b)	takes, or threatens to take, steps against another person for the purpose of causing the other person

1982.]	Industrial Arbitration (No. 2). [No. 121. to engage in conduct in relation to a person or employee that would con- stitute an offence under subsection (1) or (2);
(c) engages, or threatens to engage, in conduct having the effect, directly or indirectly, of prejudicing in his employment an employee who is-

(i) not a member of an employee organization for the purpose of causing that employee to become; or

(ii) a member of an employee organization for the purpose of causing that employee to cease to be,

a member of an employee organiza-

tion; or

(d)	demands from a person who is not a member of an employee organization (in this paragraph called the non- member)—

(i) directly or indirectly for the benefit of an employee organ- ization or of a person acting on behalf of an employee organization; and

(ii) with threats of injury or detriment of any kind whatso- ever to be caused to the non- member by any other person if that demand is not complied with,

any thing, or that any thing be procured to be done or omitted to be done by the non-member,

commits an offence.

(4) A person who conspires with another person to commit an offence under subsection (1), (2) or (3) commits an offence.

No. 121.] Industrial Arbitration (No. 2).

[1982.

(5) A person who hinders or prevents the supply of goods or services by a second person to a third person or the acquisition of goods or services by a second person from a third person with intent to cause the commission of an offence under subsection (1), (2) or (3) commits an offence.

Responsi-

(1) If a corporation is guilty of an corporation who was in any way, by act or omission and directly or indirectly, knowingly concerned in or party to the commission of that offence is also guilty of that offence.

bility

96C.

of corpora-

tions and	offence under section 96B, any officer of the
officers
thereof.
(2) If an officer of a corporation is guilty of an offence under section 96B, the corpora- tion is also guilty of that offence unless it is proved that all reasonable steps were taken by the corporation to prevent the commission by the corporation or its officers of offences under section 96B.
Responsi-

bility of	96D.	(1) If an employee organization is
employee

organiza-	guilty of an offence under section 96B, any
tions and
officers	officer or member of the employee organiza-
and members
thereof.	tion who was in any way, by act or omission and directly or indirectly, knowingly concerned in or party to the commission of that offence is also guilty of that offence.
(2) If an officer or member of an employee organization is guilty of an offence under section 96B, the employee organization is also guilty of that offence unless it is proved that all reasonable steps were taken by the employee organization to prevent the com- mission by the employee organization or its officers or members of offences under section 96B.

1982.]

Industrial Arbitration (No. 2). [No. 121.

Onus of

96E. When in any proceedings for an

proof in certain

offence under section 96B (1) it is proved	cases.
that an employee was dismissed from, or injured in, his employment, or his promotion was hindered, prevented or refused, or his position in his employment was altered to his prejudice, or a person was refused employ- ment or his employment was hindered or prevented, while he

(a)	was or was not a member of an employee organization;
(b)	was an officer of an employee organization; or
(c)	was entitled to the benefit of an award or order,

it shall be taken to be proved that a reason for that dismissal, injury, hindrance, preven- tion, refusal or alteration, as the case requires, was the reason that the employee or person was or was not such a member, was such an officer or was so entitled, unless the contrary is proved.

Discrimin-

96F. (1) A person who-

atory and

other action

against

(a) threatens that-

persons by

reason of

non-

(i) discriminatory action will or may be taken against a second	membership of employee
organiza-

person; or

tions.

(ii) the free and lawful exercise of his trade, profession or occupation by a second person will or may be interfered with,

by reason of the circumstance that the second person or a third person is not a member of;

(b)	advises, encourages or incites a second person to take discriminatory action against a third person by reason of the circumstance that the third person or a fourth person is not a member of;

No. 121.] Industrial Arbitration (No. 2).

[1982.

(c)	takes, or threatens to take, industrial action against an employer with the intent to coerce the employer to take discriminatory action against a second person by reason of the circumstance that the second person or a third person is not a member of; or
(d)	takes, or threatens to take, industrial action against an employer with the intent to coerce him to join,

an employee organization, commits an

offence.

(2) If in any proceedings for an offence under subsection (1) all the relevant facts and circumstances, other than the reason or intent of the action alleged in the complaint, are proved, it lies on the defendant to prove that that action was not actuated by that reason or taken with that intent.

(3) If an employee organization is guilty of an offence under subsection (1), any officer or member of the employee organization who was in any way, by act or omission and directly or indirectly, knowingly concerned in or party to the commission of that offence is also guilty of that offence.

If an officer or member of an employee organization is guilty of an offence under subsection (1), the employee organization is also guilty of that offence unless it is proved that all reasonable steps were taken by the employee organization to prevent the com- mission by the employee organization or its officers or members of offences under sub- section (1).

(4)

1982.]

Industrial Arbitration (No. 2). [No. 121.

(5) In this section

"discriminatory action", in relation to a person, means

(a)	refusing to make use of, or refusing to agree to make use of, any service offered by the person;
(b)	refusing to receive, or refusing to agree to receive, any goods offered by the person; or
(c)	refusing to supply, or refusing to agree to supply, goods or services to the person.

96G. (1) A person who-

Penalties.

(a)	being an individual, commits an offence under section 96B or 96F is liable to a penalty of-

(i) not less than $400; and

(ii) not more than $5 000;

(b)	being a corporation or an employee organization, commits an offence under section 96B or 96F is liable to a penalty of-

(i) not less than $1 000; and

(ii) not more than $10 000,

and, if that offence is a continuing one, to a further penalty of not more that $500 for every day or part thereof during which that offence has continued.

No. 121.] Industrial Arbitration (No. 2).

[1982.

(2) The penalties referred to in subsection (1) (a) (i) and in subsection (1) (b) (i) are irreducible in mitigation notwithstanding anything in the Justices Act 1902, The Criminal Code and the Offenders Probation and Parole Act 1963.

(3) Subject to subsection (4), when a penalty is imposed on an employee organiza- tion in respect of an offence under section 96B or 96F and the employee organization does not forthwith pay the penalty, the rights of the employee organization and its members referred to in subsection (5) are suspended until the penalty is paid.

(4) An Industrial Magistrate may permit an employee organization on which a penalty referred to in subsection (3) is imposed to pay that penalty within such period not exceeding 7 days from that imposition as the Industrial Magistrate thinks fit, in which case the rights referred to in subsection (3) are, if that penalty is not paid within that period, suspended from the end of that period until the penalty is paid.

(5) In and with respect to any period during which rights are suspended under subsection (3) or (4)-

(a)	a proceeding of any kind may not be instituted under this Act by or on behalf of the employee organization concerned or any of its members;
(b)	the employee organization concerned shall not be joined as an applicant in any proceeding referred to in paragraph (a);
(c)	an award or order shall not be made or be deemed to have been made for the benefit of the employee organiza- tion concerned or any of its members; and

1982.]

Industrial Arbitration (No. 2). [No. 121.

(d)	rights or entitlements shall be deemed not to become due to the employee organization or its members under this Act or any award or order in force thereunder.

9611. A prosecution for an offence under by is=

section 96B or 96F shall not be instituted =Ziff

except by the Attorney General or an 13nrctor

Industrial Inspector, who is hereby em-

powered to institute such a prosecution.

961. When a person has been convicted of Err

9i„

an offence under section 96B or 96F, the tor

Industrial Magistrate before whom the pro- =Mar

ceedings were brought shall, after imposing such penalty for that offence as he considers just, transmit the case to the Commission, and the Commission may, after affording the person so convicted and the employee or person against whom that offence was committed (in this section called the com- plainant) an opportunity to be heard

(a)	if the person so convicted is an employer, order the employer

(i)	to reinstate the complainant in his employment;

(ii) to pay to the complainant such sum of money as the Commission considers adequate as compensation for loss of employment or loss of earnings; or

(iii) both to reinstate the com- plainant in his employment and to pay him the sum of money referred to in subpara- graph (ii) of this paragraph,

as is appropriate in the circum- stances and as the Commission considers just; or

No. 121.] Industrial Arbitration (No. 2).

[1982.

(b) if the person so convicted is a person other than an employer, order that person to pay the complainant such sum of money as the Commission considers adequate as compensation for loss of employment or loss of earnings,

but the complainant is not entitled to compensation both under this section and otherwise for the same loss of employment or loss of earnings. " .

Section 97A

Inserted.

31. The principal Act is amended by inserting after section 97 the following section

Employers	cc 97A. (1) An employer is not obliged to
may deduct
wages in

certain	pay any wages, salary, allowances or other
circum-
stances.	remuneration to an employee for any day or portion of a day on which the employee cannot usefully be employed by the employer because of

(a)	any strike by an employee organization;
(b)	the breakdown of any machinery of the employer; or
(c)	any stoppage of work from any cause which the employer cannot reason- ably prevent.

(2) In the event of any inconsistency between this section and any award, this section shall prevail to the extent of that inconsistency.

(3) In subsection (1) (a)

"employee organization" means union of employees or association of unions of employees. " .

1982.]

Industrial Arbitration (No. 2). [No. 121.

32. Section 98 of the principal Act is amended 2,1=2

by repealing subsection (3) and substituting the

following subsections

(3) An Industrial Inspector may, for the purposes of carrying out his functions under this Act

(a)	enter any building, structure, conveyance or place of any kind whatsoever wherein or in respect of which there are reasonable grounds to suspect that any industry is being or has been carried on or any work is being done or has been done or commenced or any matter or thing is taking or has taken place (in this subsection called an industrial loca- tion) for the purpose of ascertaining whether or not the provisions of this Act or of any awards or orders in force thereunder are being or have been observed;
(b)	inspect and view any work, material, machinery, appliance, article, record, matter or thing whatsoever which is in an industrial location;
(c)	take with him into an industrial location any person he may require to provide assistance which he considers to be necessary;
(d)	question, either alone or in the presence of some other person, with respect to anything to which this Act relates any person he finds in an industrial location;
(e)	by notice in writing or orally require a person having the control of, or access to, a record, whether kept in an industrial location entered by him under this subsection or elsewhere, to produce or exhibit that record for his examination in accordance with that requirement;

No. 121.] Industrial Arbitration (No. 2).

[1982.

(f)	examine, and seize or take extracts from or copies of, any record produced or exhibited for his inspec- tion in compliance with a require- ment made under this subsection;
(g)	if he has reasonable cause to apprehend any obstruction in the carrying out of those functions, call to his assistance any member of the Police Force; and
(h)	exercise any power, other than a power referred to in paragraph (a), (b), (c), (d), (e), (f) or (g), conferred on him by this Act or by any direc- tion given thereunder.

(4) When an Industrial Inspector uses the assistance of an interpreter, any question, inquiry or requirement put or made to a person by the interpreter on behalf of the the Industrial Inspector shall for all purposes be deemed to be put or made to the person by the Industrial Inspector, and any answer or other statement given or made by the person to the interpreter shall for all purposes be deemed to be given or made to the Indus- trial Inspector.

A person who acts as an interpreter for an Industrial Inspector shall not, otherwise than for the purposes of this Act and to assist an Industrial Inspector in the performance of his duties under this Act, disclose to any person any information that he acquires in the performance of his duty as such an interpreter.

(5)

Penalty: $1 000.

1982.]

Industrial Arbitration (No. 2). [No. 121.

(6) In subsection (3) (a).—

"conveyance" means vehicle, vessel, hovercraft, aircraft or other means of transportation made, adapted or used or intended to be used for the carriage of persons or goods.

(7) In subsection (3)—

"record" means any thing or process on or by which information is recorded or preserved or by means of which a meaning can be conveyed by any means in a visible or recoverable form, whether or not the assistance of some electronic, electrical, mechanical, chemical or other machine or process is required to convey that information or mean- ing. " .

33. Section 100 of the principal Act is repealed. ?:gireld1."

34. Section 102 of the principal Act is amended 2frfaTeA? 2

in subsection (1) by deleting "a document or allow a document to be examined" and substituting the following-

" , or allow to be examined, a record as defined by section 98 (7) " .

Section 102A

35. The principal Act is amended by inserting

inserted.

after section 102 the following section-

ff 102A. (1) Subject to this Act, the

Institution of proceed- ings under

Registrar or Deputy Registrar or an Indus-	this Act.
trial Inspector may, of his own motion, and shall, if he is directed in accordance with this Act to do so, institute proceedings for an offence against or under this Act.

No. 121.] Industrial Arbitration (No. 2).

[1982.

(2) The Registrar shall, subject to this Act, institute proceedings for an offence against or under this Act on the request of a person who claims to be adversely affected by that offence unless in the opinion of the Registrar, there is good cause not to do so. " •

Section 106

amended.

36. Section 106 of the principal Act is amended in paragraph (a) by

(a)	inserting after "the official signature of" the following-

" any person holding " ; and

(b)	deleting "Senior Industrial Commissioner" in subparagraph (ii) and substituting the following-

" Senior Commissioner, Commis- sioner " .

Section 113

amended.

37. Section 113 of the principal Act is amended in paragraph (c) of subsection (1) by

(a)	deleting "and" after the semicolon at the end of subparagraph (iii);
(b)	deleting "the Commission;" in subpara- graph (iv) and substituting the following-

" the Commission; and " ; and

(c)	inserting after subparagraph (iv) the following subparagraph-

" (v) appeals, and the procedure on applications under section 49A; "