Industrial Conciliation and Arbitration Act Amendment Act 1985 (Qld)

26 ( ueenstanb ANNO TRICESIMO QUARTO ELIZABETHAE SECUNDAE REGINAE No. 5 of 1985 An Act to amend the Industrial Conciliation and Arbitration Act 1961 -1983 in certain particulars [ASSENTED TO 20TH MARCH, 1985]

Industrial Conciliation and Arbitration Act Amendment Act 1985, No. 5 27 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 . This Act may be cited as the Industrial Conciliation and Arbitration Act Amendment Act 1985. (2) In this Act the Industrial Conciliation and Arbitration Act 1961-1983 is 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 1961-1985. 2. Amendment of s. 5 . Interpretation . Section 5 of the Principal Act is amended by omitting the definition "Strike" and substituting the following definition:- "Strike"-The act of two or more employees who are or have been in the employment either of the same employer or different employers consisting in- (a) a discontinuance of their employment, wholly or partially; (b) a cessation of work or refusal or wilful failure to continue to work in their employment; (c) a breaking of their contracts of service; (d) a refusal or wilful failure, after any such discontinuance of employment or cessation of work, to return to their, employment or to resume work; (e) a wilful delay or obstruction of the progress of work by what is known as the "go-slow" method of strike; (f) a refusal or wilful failure to perform work required of them in accordance with their contracts of employment; (g) a performance of work in a manner other than that in which it is customarily performed; (h) the adoption of a practice or stratagem the result of which is a restriction , limitation or delay in the performance of work or a restriction or limitation of the product of work; (i) a ban , restriction or limitation on the performance of work or on acceptance or offering for work; (j) a refusal or wilful failure that is not authorized by the employer or employers of the employees to attend for work; or (k) a refusal or wilful failure that is not authorized by the employer or employers of the employees to perform any work at all by employees who attend for work,

28 Industrial Conciliation and Arbitration Act Amendment Act 1985, No. 5 being an act due to or in pursuance of a combination, agreement or understanding, expressed or implied, entered into by the employees or any of them with intent- to compel or induce any such employer to agree to terms of employment or to employ or cease to employ any person or class of person or to comply with any demands made by the employees or any of them or by any other employees: to cause loss or inconvenience to any such employer in the conduct of his business: to incite, instigate, aid, abet or procure any other strike: or to assist employees in the employment of any other employer to compel or induce that employer to agree to terms of employment or to employ or cease to employ an person or class of person or to comply with any demands made by any employees. and includes conduct capable of constituting a strike notwithstanding that the conduct relates to part only of the duties that the employees are required to perform in the course of their employment:". 3. Amendment of s. 8 . Jurisdiction of the Industrial Court. Section 8 of the Principal Act is amended by, in subsection (1) (b)- (a) omitting from paragraph (iv) the expression "$800" and substituting the expression "$2 000": (b) inserting in paragraph (v) after the words "eighty-six," the expression "96F,". 4. Amendment of s. 24 . Industrial magistrates . Section 24 of the Principal Act is amended by omitting from paragraph (a) the expression "$800" and substituting the expression "$2 000". 5. Repeal of and new s. 48. Resignation from membership of an industrial union . C'wlth. s. 145 . The Principal Act is amended by repealing section 48 and substituting the following section:- "48. Termination of membership of industrial union by member . C'wlth. s. 145 . (1) Subject to subsection (2), a person's membership of an industrial union shall be taken to be terminated if he duly gives notification in writing of his resignation from the industrial union. The provisions of this subsection are in addition to the rules of an industrial union relating to termination of membership of the industrial union. (2) Where a person, in a notification in writing of his resignation from an industrial union, specifies a date or indicates a time on or at which his resignation so notified is to be effective,

Industrial Conciliation and Arbitration Act Amendment Act 1985, No. 5 29 being a date or time subsequent to his duly giving the notification, his membership of the industrial union shall be taken to be terminated on that date or, as the case may be, at that time notwithstanding the provisions of subsection (1). (3) Notification of resignation from an industrial union shall be taken to have been duly given if- (a) it is left at the registered office of the industrial union; or (b) it is addressed to the industrial union or any officer thereof and sent by post to the registered office of the industrial union. (4) The liability of a person to pay any contribution, fee or dues under the rules of an industrial union, being a person whose membership of the industrial union has been terminated, shall not be affected by the termination of his membership except that it shall not extend to making any payment on account thereof in respect of any period beyond the expiration of the period for which the contribution, fee or dues.last became payable according to the rules of the industrial union before the date of the termination of his membership. (5) The rules of every industrial union shall be so construed that where any provision thereof is inconsistent with this section or any provision of this section, this section or, as the case may be, that provision shall prevail and shall be given effect.". 6. Repeal of and new s . 60C. Offences by industrial unions in relation to a strike or lock-out. The Principal Act is amended by repealing section 60C and substituting the following section:- "60C. Incitement etc. of punishment for non-participation in strike or lock-out. (1) An industrial union of employees or any other person (whether or not an officer, an employee or a member of an industrial union) shall not- (a) incite, advise or encourage any person to act to the prejudice of an employee who has refused or failed to participate in a strike; (b) impose or threaten to impose a penalty, forfeiture or disability of any kind upon an employee or upon a member of an industrial union of employees by reason that he has refused or failed to participate in a strike. (2) An industrial union of employers or any other person (whether or not an officer, an employee or a member of an industrial union) shall not- (a) incite, advise or encourage any person to act to the prejudice of an employer who has refused or failed to participate in a lock-out; or (b) impose or threaten to impose a penalty, forfeiture or disability of any kind upon an employer or a

30 Industrial Conciliation and Arbitration Act Amendment Act 1985, No. 5 member of an industrial union of employers by reason that he has refused or failed to participate in a lock-out. (3) If in proceedings with respect to an offence consisting in a contravention of paragraph (b) of subsection (1) or (2) it is proved that the imposition or threat charged has occurred in relation to a person who has refused or failed to participate in a strike or a lock-out, as the case may be. the court shall presume that the reason for the imposition or threat was that the person has so refused or failed unless the contrary is proved.". 7. Amendment of s. 73. Cancellation of registration of union . Section 73 of the Principal Act is amended by omitting subsection (1) and substituting the following subsection:- °°(1) If, on the application of any industrial union, person interested, the Chief Industrial Inspector or the registrar- (a) a Full Industrial Court considers that for any reason, the registration of an industrial union ought to be cancelled either wholly or as to one or more of the callings it represents, or as to all or one or more of the areas or establishments in which such callings are carried on; or (b) it appears to a Full Industrial Court that- (i) an industrial union has been registered erroneously or bv_ mistake: (ii) the rules of an industrial union or the administration of those rules do not provide reasonable facilities for the admission of new members, or impose unreasonable conditions upon the continuance of any person's membership of the industrial union, or are in any way tyrannical or oppressive; (iii) the constitution of an industrial union has been altered in such a manner that the principal objects of the union are no longer statutory objects; (iv) the principal objects for which an industrial union is actually carried on are not statutory objects; (v) an industrial union or a branch thereof or a substantial number of the members of the industrial union or branch wilfully neglected to obey an order of the Court or of the Commission; or (vi) a majority in number of the members of an industrial union, by ballot taken as prescribed, require the cancellation of its registration, the Court may order the registration of the union- (c) to be suspended for such period or upon such conditions as the Court specifies in such order either wholly or as to one or more of the callings it represents,

Industrial Conciliation and Arbitration Act Amendment Act 1985, No. 5 31 and as to all or one or more of the areas or establishments in which such callings are carried on; or (d) to be cancelled either wholly or as to one or more of the callings it represents, and as to all or one or more of the areas or establishments in which such callings are carried on, and thereupon it shall be suspended or cancelled accordingly.". 8. New s . 73A. The Principal Act is amended by inserting after section 73 the following section:- "73A. Suspension or cancellation of registration of union for failure to comply with order or direction of Commission. (1) Declaration as to failure by Full Bench . Where, on application by the Minister, the Chief Industrial Inspector or person interested, arFull Bench of the Commission is satisfied that an industrial union has failed to comply with a direction or order of the Commission the Full Bench of the Commission shall make a declaration that it is so satisfied and cause the declaration to be recorded in writing. (2) Power of Governor in Council . Where a declaration is made under subsection (1) by a Full Bench of the Commission in relation to an industrial union the Governor in Council may at any time within the period of six months after the making of the declaration, by Order in Council, order the registration of the industrial union- (a) to be suspended for such period, not exceeding six months, or upon such conditions as is specified in the Order in Council either wholly or as to one or more of the callings it represents, and as to all or one or more of the areas or establishments in which such callings are carried on; or (b) to be cancelled either wholly or as to one or more of the callings it represents and as to all or one or more of the areas or establishments in which such callings are carried on, and thereupon it shall be suspended or cancelled accordingly. Upon the suspension or cancellation of the registration of an industrial union pursuant to this section, the provisions of subsections (2), (3) and (4) of section 73 apply as if that registration had been suspended or cancelled pursuant to section 73. (3) Conditions for re-registration . Where the registration of an industrial union has been suspended or cancelled by an Order in Council in accordance with subsection (2), the Governor in Council, may by that Order in Council or by a later Order in Council, specify a condition or conditions with which a body or association of persons that is or was, as the case may be, registered as an industrial union is required to comply before it may be registered again under section 44 or, as the case may be, 45.

32 Industrial Conciliation and Arbitration Act Amendment Act 1985, No. 5 (4) Declaration of compliance. Notwithstanding the provisions of sections 44 and 45, where the registration of an industrial union has been cancelled in accordance with an Order in Council under subsection (2) (b) the body or association of persons that was registered as an industrial union is not entitled to be registered under section 44 or, as the case may be, 45 unless- (a) where the Governor in Council has in accordance with subsection (3) specified a condition or conditions in relation to the body or association of persons- the Governor in Council declares by Order in Council that that condition has, or those conditions have, been complied with; or (b) in a case to which paragraph (a) does not apply- the Governor in Council declares by Order in Council that the body or association of persons may apply to be registered under section 44 or section 45. (5) Power of Full Bench. Where on the application of the Minister, the Chief Industrial Inspector or person interested, a Full Bench of the Commission is satisfied that, after a body or association of persons in relation to which a declaration has been made by the Governor in Council under subsection (4) (a) has become registered again as an industrial union under section 44 or 45, the industrial union has ceased to comply with the condition or any one or more of the conditions specified by the Governor in Council in accordance with subsection (3), the Full Bench of the Commission shall make a declaration that it is so satisfied. (6) Effect of declaration. Where a declaration is made under subsection (5) by a Full Bench of the Commission in relation to an industrial union, subsection (2) has effect in like manner as it has effect in relation to a declaration made under subsection (1) by a Full Bench of the Commission in relation to an industrial union. (7) Prima facie evidence. A document signed by the registrar stating that a Full Bench of the Commission made a declaration under subsection (1) or (5) on a date specified in the document and purporting to set out the terms of the declaration is prima facie evidence of the matters in the document. (8) Evidence of failure to comply. On a hearing of an application made pursuant to subsection (1), where an order or direction of the Commission includes an order or direction to officers or members of an industrial union and includes an order or direction to that industrial union, then, evidence of the failure of any officer or member of the industrial union to comply with that part of the order or direction directed to him shall be evidence and, in the absence of evidence to the contrary, conclusive evidence, that the industrial union failed to comply with that part of the order or direction directed to it.

Industrial Conciliation and Arbitration Act Amendment Act 1985, No. 5 33 (9) Revocation of Order in Council . An Order in Council made by the Governor in Council in pursuance of a power conferred by subsection (2) may be revoked by the Governor in Council at any time by a further Order in Council. (10) Cessation of force of Order in Council . An Order in Council made by the Governor in Council in pursuance of a power conferred by subsection (2) (a) shall, unless sooner revoked, cease to be in force at the expiration of six months from the date on which it came into force but may, at any time while it remains in force (including a time when it remains in force by virtue of a previous extension or previous extensions under this subsection), be extended in duration by a further Order in Council made by the Governor in Council: Provided that each such extension shall not exceed six months in duration from the date on which the extension came into force.". 9. Amendment of s. 98 . Power to direct secret ballots . Section 98 of the Principal Act is amended by- (a) omitting subsection (1) and substituting the following subsection:- "(1) Where a strike occurs or it appears to the Commission or to any person or to persons entitled under this subsection to make an application for the purposes of this section that a strike is likely to occur- (a) the Commission may- of its own motion; or upon application made to it by an employer or an industrial union of employers; or upon application made to it by or on behalf of five per centum of the number of employees engaged in the project, establishment, undertaking or calling concerned or 250 of such employees, whichever is the less (being a number not less than four in any case), or (b) the Commission shall- upon application made to it by an industrial union of employees; or if so directed by the Minister, direct the registrar or an industrial magistrate to conduct in the manner, on a date and at a place specified in the direction a secret ballot of such employees or members of an industrial union of employees as the Commission thinks fit and specifies in the direction with a view to ascertaining the number of such employees or members who are in favour of the strike.

34 Industrial Conciliation and Arbitration Act Amendment Act 1985, No. 5 The registrar or industrial magistrate shall, if the direction so specifies, conduct separate secret ballots of members of different industrial unions of employees. All matters and things with respect to the conduct of secret ballots pursuant to this subsection shall be as prescribed."; (b) omitting subsection (4) and substituting the following subsection:- "(4) If a secret ballot taken under this section indicates that a majority of employees or members of whom the ballot has been directed to be taken is not in favour of the strike then- if the strike has occurred at the time the ballot was taken: or if the strike appeared likely to occur at the time the ballot was taken and occurs in relation to the same issue within one month after the result of the secret ballot was published pursuant to subsection (3). the registrar or industrial magistrate who conducted the secret ballot shall, either in the advertisement published pursuant to subsection (3) or in a separate direction published by advertisement in a newspaper or newspapers circulating in the locality concerned. specify a date not less than seven days after the publication of the advertisement on or before which the employees or members who are on strike are required to discontinue the strike and every such employee or member shall comply with that requirement.". 10. Amendment of s. 101. Employer not to dismiss worker on account of application . Section 101 of the Principal Act is amended by- (a) inserting in and at the beginning of the section, before subsection (1). the words " Prejudice of employee by reason of membership of union etc. C' wlth, s . 5; cf. Qd . s. 53", (b) in subsection (1), omitting the words appearing in and at the beginning of the subsection, before the words "An employer"; (c) omitting subsections (3), (4) and (5) and substituting the following subsection:- "(3) A person shall not engage or threaten to engage in conduct that would be likely to have the effect, directly or indirectly, of prejudicing in his employment an employee by reason that the employee is a member of an industrial union of employees.". 11. New s. 101A. The Principal Act is amended by inserting after section 101 the following section:- "101A. Prejudice of employee by reason of non-membership of union. (1) Except where membership of an industrial union

Industrial Conciliation and Arbitration Act Amendment Act 1985, No. 5 35 of employees is a condition of a contract of employment, an employer shall not- (a) dismiss or threaten to dismiss an employee; (b) injure or threaten to injure an employee in his employment; or (c) alter or threaten to alter an employee's position to his prejudice, by reason that the employee is not a member of an industrial union of employees or intends to terminate his membership of an industrial union of employees. (2) A person shall not- (a) engage or threaten to engage in conduct that would be likely to have the effect, directly or indirectly. of prejudicing in his employment an employee by reason that the employee is not a member of an industrial union of employees; or (b) demand from a person who is not a member of an industrial union of employees (in this paragraph called the non-member), with threats of injury or detriment of any kind to be caused to the non-member if the demand is not met, that any act or thing be done or procured to be done or any omission made, being any act, thing or omission that is for the benefit, direct or indirect, of an industrial union of employees or of a person acting on behalf of an industrial union of employees. (3) Subsection (2) does not apply in relation to an employer's conduct to which subsection (1) applies. (4) Subsection (2) shall not be construed to make liable to punishment a person by reason of his engagement in conduct that apart from that subsection is lawful and is engaged in for the purpose of remedying a breach of a provision of an award that requires an employee to be a member of an industrial union of employees.". 12. New s. 101B . The Principal Act is amended by inserting after section 101A the following section:- "10113 . An offence to contravene s. 101 or 101A. (1) A person who contravenes any provision of section 101 or 101A shall be guilty of an offence and liable to a penalty of $2 000. (2) In a proceeding for an offence consisting in a contravention of any provision of section 101 or 101A to which the reason for which or the intent with which the act charged was done is material the industrial magistrate shall presume that the reason or intent was that specified in the charge unless the contrary is proved. (3) Where an employer has been convicted of an offence referred to in subsection (1) the industrial magistrate by whom

36 Industrial Conciliation and Arbitration Act Amendment Act 1985, No. 5 he is convicted may order that the employer reimburse the employee the amount of any wages lost by the employee or former employee by reason of the offence and may also direct that the employer reinstate the employee or former employee in the position from which he was dismissed or in a similar position.". 13. Repeal of and new s. 118. Powers of unions to recover fines, etc. Qd. s. 65. The Principal Act is amended b} repealing section 118 and substituting the following section:- °'l 18. Powers of unions to recover fines etc. Qd. s. 65. (1) Subject to this section all fines. fees. levies and dues payable to an industrial union under its rules by any member or former member thereof may be sued for and recovered before an industrial magistrate and not otherwise. (2) A plaint that commences proceedings for the recovery of any fine, fee, levy or dues referred to in subsection (I) shall be filed as required by the Rules of Court within 12 months of the date when the liability_ to pay the fine. fee, levy or dues arose. (3) An industrial magistrate has no jurisdiction to grant relief in respect of a plaint for the recovery of a fine. fee, levy or dues referred to in subsection (1). whether filed in accordance with the Rules of Court before or after the commencement of section 13 of the IndustrialConciliation and Arbitration ActAmendment Act1985. if the liability to pay the fine. fee. levy or dues arose more than 1? months before the plaint was so filed.". 14. Amendment of s. 135. Evidence. Section 135 of the Principal Act is amended by- (a) omitting the expression "." where it occurs at the end of paragraph (d) and substituting the expression -:"; (b) adding at the end of the section the following paragraphs:- "(e) judicial notice of the existence of a strike or lock- out at any material time may be taken by the tribunal before which the proceedings are taken if in its opinion the existence of the strike or lock-out is so well known as to require no further proof by evidence directed to that fact; (f) it shall be presumed that a failure of any person to comply with any order or direction of the Commission that he (either alone or with others) or a class of person to which he belongs should remain at work or return to work is due to his engaging or continuing to engage in a strike unless he shows to the satisfaction of the tribunal before which the proceedings are taken that his failure to comply is due to some other cause; (g) it shall be presumed that a failure of any person to obey an order or direction of the Court or of the

Industrial Conciliation and Arbitration Act Amendment Act 1985, No. 5 37 Commission is due to the wilful neglect of that person unless he shows to the satisfaction of the tribunal before which the proceedings are taken that his failure to obey is due to some other cause: (h) if it is sought to prove incitement or counselling, by means of a speech or statement, of any act or omission material to the proceedings it shall be sufficient to prove the substance of the speech or statement claimed to constitute the incitement or counsel and if the tribunal before which the proceedings are taken is satisfied that the matter proved is the substance of such speech or statement it may determine the proceedings in accordance with law notwithstanding that it is not satisfied or informed of the actual words used in such incitement or counsel: (i) proof of publication in- a newspaper printed in accordance with the Printingand Newspapers Act 1981: or a magazine, document or writing that is or purports to be published by or on behalf of an industrial union: or a broadcast made by any national broadcasting station or national tele' ision station or any commercial broadcasting station or commercial television station, in any case within the meaning of the Broadcasting and Television Act 1942 of the Commonwealth as amended or of any Act passed in substitution for that Act, of an speech or extract therefrom or of any statement or of the substance of any speech or statement. being a speech. extract or statement that is, in such publication. attributed to any person on behalf of an industrial union or to any person holding a position of authority in relation to the affairs of an industrial union. shall be admissible as evidence and. in the absence of evidence to the contrary, conclusive evidence- (i) that the speech or statement so published was in fact made by the person to whom it is so attributed; (ii) where the speech or statement is so attributed to a person on behalf of an industrial union. that the industrial union procured that person to make the speech or statement: (iii) where an extract only of the speech or statement is so published, that the speech or statement of which it purports to be an extract was in fact made by the person to whom is is so attributed. (iv) where the substance only of the speech or statement is so published, that the matter published truly

38 Industrial Conciliation and Arbitration Act Amendment Act 1985, No. 5 expresses the substance of the speech or statement in fact made by the person to whom it is so attributed: (j) judicial notice shall be taken of every national broadcasting station or national television station and of every commercial broadcasting station or commercial television station within the meaning of the Broadcasting and Television Act 1942 of the Commonwealth as amended and of any Act passed in substitution for that Act.". 15. Amendment of s. 135A. Averments in certain cases . Section 135A of the Principal Act is amended in subsection (1) by omitting the words "that any person is or is not" and substituting the words "or section 73A that any person is or is not, or was or was not at the time set forth,". 16. Amendment of penalties . The Principal Act is amended as set forth in the following Table:- TABLE Provision amended Amendment s. 36A s. 39 (3) s. 47 (3) s. 47A (13) s. 50 (2) s. 56 (13) s. 57 (7) s. 58 s. 60 s. 60A (1) s. 60B Omit "$4 000" and substitute "$10 000": Omit "$400" and substitute "$1 000". Omit "$800" and substitute "$2 000". Omit "$2 000" and substitute "$5 000": Omit "$40" and substitute "$100". Omit "$400" wherever it occurs and substitute in each case "$1 000". Omit "$ 800" and substitute "$2 000". Omit "$800" and substitute "$2 000". Omit "$ 800" wherever it occurs and substitute in each case " $2 000". Omit "$800" wherever it occurs and substitute in each case "$2 000". Omit "$ 800" wherever it occurs and substitute in each case "$2 000". Omit "$800" and substitute "$2 000". Omit "$ 800" and substitute "$2 000".

Industrial Conciliation and Arbitration Act Amendment Act 1985, No. 5 39 Provision amended TABLE-continued Amendment s. 61 (2) s. 74 (3) s. 77 (5) s. 82 (2) s. 85 s. 86 s. 88 (4) s. 99 (1) s. 102 (7) s. 104 (1) s. 105 s. 106 (1) s. 107 s. 112 s. 113 (1) s. 1 13 (6) s. 130 (2) s. 139 (2) Omit "$40" and substitute "$100". Omit "$800" and substitute "$2 000". Omit "$ 800" and substitute "$2 000". Omit "$ 800" and substitute "$2 000". Omit "$ 800" and substitute "$2 000". Omit "$ 800" and substitute "$2 000". Omit "$ 800" and substitute "$2 000". Omit "$ 800" and substitute "$2 000". Omit "$4 000" and substitute "$10 000". Omit "$ 400" and substitute "$1 000". Omit the words "of $800" and substitute the words "in the case of an industrial union or body corporate of $10 000 and in any other case of $2 000". Omit "$800" and substitute "$2 000". Omit "$800" and substitute "$2 000". Omit "$800" and substitute "$2 000". Omit "$800" and substitute "$2 000". Omit "$80" and substitute "$200". Omit "$400" and substitute "$1 000": Omit "$80" and substitute "$200": Omit "$800" and substitute "$2 000": Omit "$160" and substitute "$400". Omit "$8 000" and substitute "$10 000". 1 Omit "$800" and substitute "$2 000". Omit "$400 " and substitute "$1 000".