Industrial Conciliation and Arbitration Act Amendment Act 1974 (No. 2) (Qld)

398 ANNO VICESIMO TERTIO ELIZABETHAE SECUNDAE REGINAE No. 42 of 1974 An Act to amend the Industrial Conciliation and Arbitration Act 1961-1974 in certain particulars [ASSENTED TO 2ND MAY, 1974] 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:- 1. Short title and citation . (1) This Act may be cited as the Industrial Conciliation and Arbitration Act Amendment Act 1974 (No. 2). (2) The Industrial Conciliation and Arbitration Act 1961-1974 is in this Act referred to as the Principal Act. (3) The Principal Act as amended by this Act may be cited as the Industrial Conciliation and Arbitration Act 1961-1974.

Industrial Conciliation and Arbitration , Etc., Act (No. 2) 1974, No. 42 399 2. Repeal of and new s. 10. The Principal Act is amended by repealing section 10 and substituting the following section:- " 10. Leave of absence to Commissioners . The provisions of subsection (1) of section 15 of the Judges' Pensions Act 1957-1972 shall apply mutatis mutandis to every Commissioner in the same manner and in the same circumstances as they apply to a Judge of the Supreme Court and for this purpose that subsection shall be read and construed as though the word " Commissioner " were substituted for the words " Judge of the Supreme Court " or, as the case may be, " Judge " wherever they occur therein, and in particular- (a) a reference in that subsection to The Judges' Salaries and Pensions Act of 1967 shall be read and construed as a reference to the Industrial Conciliation and Arbitration Act Amendment Act 1974 (No. 2); and (b) the proviso to that subsection shall be read and construed as if the words " but who was not in office at the time of the passing of this Act " did not appear therein.". 3. New ss. 10A, 10B. The Principal Act is amended by inserting after section 10 as inserted by this Act the following sections:- " 10A. Pension benefits to Commissioners . (1) Save as is prescribed by subsection (2), and subject to subsection (3), the provisions of the Judges' Pensions Act 1957-1972 other than section 15 shall apply mutatis mutandis to every Commissioner and to his widow and to any child of his in the same manner and in the same circumstances as they apply to a Judge of the Supreme Court and to his widow and to any child of his and for this purpose those provisions shall be read and construed as though the word " Commissioner " were substituted for the word " Judge " wherever it occurs therein save in the definition "Judge" in section 2 thereof. (2) Subsection (1) does not apply in respect of a Commissioner whether appointed before or after the passing of the Industrial Conciliation and Arbitration Act Amendment Act 1974 (No. 2) who, being a contributor to the Fund at the date of his appointment or at the passing of that Act, elects in accordance with this section to continue to contribute to the Fund, or in respect of his widow or any child of his. (3) A Commissioner who at the passing of the Industrial Conciliation and Arbitration Act Amendment Act 1974 (No. 2) has attained the age of 65 years and accordingly is entitled to benefits from the Fund may elect in accordance with this section to take the benefits conferred on him, his widow and any child of his by subsection (1). Where a Commissioner to whom this subsection applies duly elects under the preceding paragraph- (a) he shall, upon his election, cease to be entitled to any further benefits from the Fund;

400 Industrial Conciliation and Arbitration , Etc., Act (No. 2) 1974, No. 42 (b) upon his election, his wife and any child of his shall not be entitled upon his death to any benefits from the Fund and any right to such benefits had by them or any of them at the time of the election shall thereupon be forfeited; (c) his entitlement, and that of his widow or any child of his, to the benefits conferred by subsection (1) are subject to his refunding to the Fund within one month after the time of his election the difference between the amount of the benefit that, at the time of his election, he has received from the Fund together with interest thereon at a rate stipulated by the Minister and the amount that he would have been entitled to receive from the Fund had he ceased to be a contributor to the Fund on account of his resignation immediately before his attaining the age of 65 years. Where a Commissioner to whom this subsection applies does not duly elect under the first paragraph of this subsection he, his widow and any child of his shall not be entitled to any benefits conferred by subsection (1). (4) Every election under subsection (2) or (3) shall be made within three months after the material time and shall be in writing and in duplicate and one copy thereof shall be furnished to the State Service Superannuation Board and the other copy thereof shall he furnished to the permanent head of the Department of Industrial Affairs of the State. (5) Where a Commissioner duly elects to continue to contribute to the Fund- (a) his contribution shall be subject to and in accordance with such provisions of the 1958 Act and the 1972 Act as applied in respect of his contributions at the material time; (b) the benefits payable to him, his widow and any child of his by reason of his contributing to the Fund shall be as prescribed by such provisions of the 1958 Act and the 1972 Act as apply in respect of him, his widow or, as the case may be, his child; (c) for the purpose of the application of the provisions of the 1958 Act in respect of him, he shall be deemed to be an officer within the meaning of that Act, and for the purpose of the application of provisions of the 1972 Act in respect of him, he shall be deemed to be an officer within the meaning of that Act. (6) Where a Commissioner does not duly elect to continue contributing to the Fund he shall be deemed to have ceased to contribute thereto and to have ceased to be an officer within the meaning of either the 1958 Act or the 1972 Act at the material time, and he shall be entitled to such payments as are prescribed by the provisions of those Acts to be paid to a contributor upon his resignation before attaining the age of 65 years.

Industrial Conciliation and Arbitration, Etc., Act (No. 2) 1974, No. 42 401 (7) In this section- (a) the expression " material time " means- (i) in relation to a Commissioner appointed before the date of the passing of the Industrial Conciliatton and Arbitration Act Amendment Act 1974 (No. 2), that date; (ii) in relation to any other Commissioner, the date of his first appointment as a Commissioner; (b) the term " Fund " means the State Service Superannuation Fund preserved, continued in existence and established under the State Service SuperannuationAct1972; (c) a reference " 1958 Act " is a reference to the PublicService Superannuation Act1958-1972, as subsequently amended; (d) a reference " 1972 Act" is a reference to the StateServiceSuperannuationAct1972, as subsequently amended. 10B. Computation of length of service . In computing the length of service of a Commissioner for the purposes of sections 10 and 10A, every period during which he has served, whether pursuant to his first appointment or any renewal thereof or any subsequent appointment as a Commissioner, Acting Commissioner or deputy of a Commissioner, shall be taken into account.". 4: Amendment of s. 13. Section 13 of the Principal Act is amended by- (a) omitting subsection (2) and substituting the following subsection:- (22)) A declaration of a general ruling- (a) shall in every case include the specification of a date (in this section referred to as the " specified date ") on and from which the general ruling shall have effect; (b) shall have effect as a decision of the Commission."; (b) omitting subsection (7) and substituting the following subsection:- " (7) Adjustment of awards or industrial agreements. Upon a declaration of a general ruling, including a declaration as to the basic wage, during the currency of an award or an industrial agreement, the terms of such award or industrial agreement shall be deemed to be varied, on and from the specified date, to accord with the declaration and such variation shall have effect on and from the specified date as an award or industrial agreement."; (c) adding the following subsections:- " (8) Notification of declaration of general ruling. As soon as practicable after the making of a declaration of a general ruling, including a declaration as to the basic wage, the registrar shall cause notification of the declaration, including the specified date, to be published in the Queensland Government Industrial Gazette. A notification so published shall, on and from the specified date- (a) supersede and replace any like notification published theretofore-and shall continue in force until immediately before the specified date included in the next following like general ruling; and

402 Industrial Conciliation and Arbitration , Etc., Act (No. 2) 1974, No. 42 (b) in respect of the period during which it remains in force, be conclusive evidence for all purposes of the matters contained therein. (9) Notwithstanding subsection (7) the registrar may (subject to appeal to the Commission), upon application made as prescribed or of his own motion, vary the terms of any award or industrial agreement as he considers necessary or desirable to accord with a declaration of a general ruling.". 5. Amendment of s. 16. Section 16 of the Principal Act is amended by adding at the end thereof the following subsections:- " (6) For the purpose of calculating the amount of sick leave to which an employee is entitled, pursuant to this section or pursuant to any award or industrial agreement- (a) where the calling carried on by a person who is an employer is, after the passing of the Industrial Conciliation and Arbitration Act Amendment Act 1974 (No. 2), transmitted to another person by operation of law or by agreement between them that transmission shall be deemed not to break or otherwise affect the continuity of the employment of that employee whose service shall be, upon the transmission aforesaid, transmitted from the one to the other person aforesaid; and (b) the respective periods of the employment of that employee with each of the aforesaid persons shall be taken into account in calculating the length of the continuous employment had by him with the person to whom his service shall be transmitted as aforesaid. In this subsection the term " transmission " includes, but without limit to the generality of the meaning thereof, transfer, assurance, conveyance , assignment or succession, and derivatives of that term shall have a corresponding meaning. (7) In all proceedings brought in respect of entitlement to sick leave whether pursuant to this section or pursuant to any award or industrial agreement the averment that a calling was, at or about a specific time, transmitted from one person to another person by operation of law or by agreement between them shall be sufficient evidence of the fact until the contrary is proved. (8) For the purpose of calculating the amount of sick leave to which an employee is entitled, pursuant to this section or pursuant to any award or industrial agreement- (a) employment had by that employee with an employer who becomes a member of a partnership together with employment had by that employee with such partnership shall be employment with one and the same employer; (b) employment had by that employee with a partnership together with- (i) employment had by him with one or more of the former partners upon the dissolution of such partnership;

Industrial Conciliation and Arbitration, Etc., Act (No. 2) 1974, No. 42 d03 (ii) employment had by him with the partnership as reconstituted , if such partnership shall be reconstituted, shall be employment with one and the same employer; (c) the continuity of employment of an employee with an employer shall be deemed not to be broken by reason of the employee having been dismissed or stood down by the employer- (i) on the date on which a calling is transmitted to another person within the meaning of subsection (6); or (ii) during the period of one month immediately preceding such date , being a period commencing after the passing of the Industrial Conciliation and Arbitration Act Amendment Act 1974 (No. 2), if the employee is re-employed by the person to whom the calling is transmitted within three months from such dismissal or standing down. (9) For the purpose of calculating the amount of sick leave to which an employee is entitled , pursuant to this section or pursuant to any award or industrial agreement , where one body corporate is a subsidiary of another , or is a subsidiary of any body corporate that is that other's subsidiary , periods of employment had by him with them respectively as employers which periods, if the bodies corporate were one and the same employer, would aggregate unbroken continuous employment shall be taken into account in calculating the length of the continuous employment had by that employee with the one of those bodies corporate by whom he is employed for the time being and shall be deemed to be employment had by him with that body corporate. Where, if the law relating to companies applies, a corporation would be a subsidiary of another , such corporation shall be deemed such subsidiary for the purposes of this subsection notwithstanding that such law does not apply.". 6. Amendment of s. 29. Section 29 of the Principal Act is amended by inserting after subsection (1) the following subsections:- "(IA) All rates of wages or of salary prescribed by awards or industrial agreements (whether made before or after the passing of the Industrial Conciliation and Arbitration Act Amendment Act 1974 (No. 2)) to be payable to adult employees or to employees who are seniors shall be deemed to be composed of and to be expressed by reference to the basic wage being the basic wage declared at the time of the making of the award or industrial agreement, as the case may be, and a margin or, where subsequently to the making of the award or industrial agreement there has been made a declaration of a general ruling that varies such basic wage, the basic wage as varied by the declaration last made and a margin. In this subsection the expression " basic wage " means- (a) in the case of a rate of wages or of salary expressed to be payable to a class of male or expressed to be payable to a class of employee whose members are not

404 Industrial Conciliation and Arbitration , Etc., Act (No. 2) 1974, No. 42 differentiated by reference to sex, or expressed to be payable to a class of female where the rate so payable is the same as the rate expressed to be payable to a male of that class, the basic wage declared or payable to adult males in the Division or, as the case may be, in the District of the Division of the State in which that rate of wages or of salary is to be paid: (b) in the case of a rate of wages or of salary expressed to be payable to a class of female other than a class referred to in provision (a), the basic wage declared for or payable to adult females in the Division or, as the case may be, in the District of the Division of the State in which that rate of wages or of salary is to be paid; (c) in the case of a rate of wages or of salary expressed as a wage or salary for a period other than a week, the basic wage according to the appropriate provisions of this paragraph calculated in relation to the period for which the wage or salary is expressed to be payable. (lB) Every provision of an award or industrial agreement (whether made before or after the passing of the Industrial Conciliation and Arbitration Act Amendment Act 1974 (No. 2)) that prescribes a rate of wages or of salary to be calculated as a percentage or fraction of the rate of wages or of salary prescribed by any award or industrial agreement to be payable to an adult employee or to an employee who is a senior shall be construed as if any quantitative statement of the rate, calculated as so prescribed, and expressed in terms of money did not appear therein.". 7. New ss. 128A, 128B. The Principal Act is amended by inserting after section 128 the following sections:- " 128A. Incorporation of variation in reprint of awards. Where an award or an industrial agreement made or deemed to have been made under this Act has been varied (whether that variation was made before or after the passing of the Industrial Conciliation and Arbitration Act Amendment Act 1974 (No. 2)) the Government Printer shall, if and when required so to do by the registrar, reprint the award or industrial agreement in a form certified as correct by the registrar. 128B. Obsolete awards . (1) The registrar, after such enquiry as he thinks sufficient, may notify in the Queensland Government Industrial Gazette his intention to declare that an award, industrial agreement or order, made under this Act and specified in the notification, is obsolete. (2) Any person or industrial union may, within the time and in the manner prescribed, lodge with the Commission notice of objection to the proposal, and the Commission shall hear and determine the objection.

Industrial Conciliation and Arbitration , Etc., Act (No. 2) 1974, No. 42 405 (3) Where no objection is lodged or any objection lodged is dismissed, the registrar may notify in the Queensland Government Industrial Gazette that the award, industrial agreement or order in respect of which notice of intention is given under subsection (1) is obsolete, whereupon that award, industrial agreement or order shall cease to have any force or effect.".