Industrial Conciliation and Arbitration Act and Another Act Amendment Act 1987 (Qld)

'1046 A NN O TRICESIMO SE TO EL,IZA E AE SE C U ND AE R E G I NA E An Act to a m end the Indus t a! Cor ®cxliation and Arbitration Act 1961- 19 8 7 and the Industrial (Commercial Pr actices ) Act 1984® 1987 each in ce rta in pa rt iculars [ASSENTED TO 1ST DECEMBER, 1987]

Industrial Conciliation and Arbitration Act and Another Act Amendment Act 1987, No. 76 1047 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:- PART I-PRELIMINARY 1. Short title . This Act may be cited as the Industrial Conciliation and Arbitration Act and Another Act Amendment Act 1987. 2. Commencement . ( 1) Section 1 and this section shall commence on the day on which this Act is assented to for and on behalf of Her Majesty. (2) Except as provided by subsection ( 1), this Act shall commence on a day appointed by Proclamation. 3. Arran gement of Act. This Act is arranged as follows:- PART I-PRELIMINARY ( SS. 1-3); PART II-AMENDMENTS OF INDUSTRIAL CONCILIATION AND ARBITRATION ACT (ss. 4-14); PART III-AMENDMENTS OF INDUSTRIAL (COMMERCIAL PRACTICES) ACT (ss. 15-16). PART II-AMENDMENTS OF INDUSTRIAL CONCILIATION AND ARBITRATION ACT 4. Citation . (1) In this Part the Industrial Conciliation and Arbitration Act 1961-1987 is referred to as the Principal Act. (2) The Principal Act as amended by this Part may be cited as the Industrial Conciliation and Arbitration Act 1961-1987. 5. A m endment of s. 2. Parts of Act. Section 2 of the Principal Act is amended by inserting after the words "PART VI-INDUSTRIAL AGREEMENTS (ss. 89-94);" the following:- "PART VIA-Voluntary Employment Agreements (ss. 94A-94N);". 6. Amendment of s. 5 . Interpretation . Section 5 of the Principal Act is amended by- (a) in the meaning of the term "Industrial agreement", inserting after the word "Commission" the words ": The term does not include a voluntary employment agreement"; (b) inserting after the term "Trade Union or Union" and its meaning the following term and meaning:- "Voluntary employment agreement"-An agreement made pursuant to Part VIA;".

1048 Industrial Conciliation and Arbitration Act and Another Act Amendment Act 1987, No. 76 7. New heading and ss. 94A, 94u and 94c. The Principal Act is amended by inserting after section 94 the following heading and sections:- "PART VIA-VOLUNTARY EMPLOYMENT AGREEMENTS 94A. Application of Part. This Part does not apply to persons employed- (a) as members of ambulance transport brigades provided and maintained pursuant to the Ambulance Services Act 1967-1986; (b) as fire safety officers, firemen or other members of fire brigades appointed under the Fire Brigades Act 1964-1985; (c) as registered nurses or as enrolled nurses in hospitals administered under the Hospitals Act 1936-1984; (d) by Local Authorities within the meaning of the Local Government Act 1936-1986 or by Brisbane City Council; and (e) in any such other callings or by such employers as are declared by Order in Council to be callings to which or employers to whom this Part does not apply. 94n. Variation of effect of award or industrial agreement by voluntary employment agreement . (1) By agreement made in accordance with this Part between an industrial union of employees and- (a) an industrial union of employers; or (b) any employer or employers, the effect of an award or industrial agreement with respect to any matter provided for therein (including any condition required by or deemed pursuant to this Act to be provided therein) may be varied in respect of- (c) any calling or callings in respect of which the industrial union of employees is registered; or (d) any business, establishment or undertaking where the employees are members of the industrial union of employees. (2) By agreement made in accordance with this Part between an employer and not less than 60 per centum of his employees engaged in a calling covered by a particular award or industrial agreement the effect of the award or industrial agreement with respect to any matter provided for therein (including any condition required by or deemed pursuant to this Act to be provided

Industrial Conciliation and Arbitration Act and Another Act Amendment Act 1987, No. 76 1049 therein) may be varied in respect of his employees engaged in that calling. Where an employer employs or proposes to employ one employee in a particular calling in a business, establishment or undertaking, the employer and employee or prospective employee may enter into an agreement of a type specified in this subsection which, upon registration, shall, subject to this Act, bind any other person who may thereafter be employed by that employer in that calling in that business, establishment or undertaking. (3) By agreement made in accordance with this Part between an employer and not less than 60 per centum of his employees engaged in callings in a particular business, establishment or undertaking carried on by him, the effect of any award or awards or industrial agreement or industrial agreements covering those callings or any of them (including any condition required by or deemed pursuant to this Act to be provided therein) may be varied in respect of his employees engaged in those callings in that business, establishment or undertaking. 94c. The m ak ing of volun tary employment agreements. (1) A voluntary employment agreement- (a) shall be in writing and executed by the parties thereto whose signatures shall be witnessed by a justice; and (b) in the case where a party is a minor , shall be accompanied by the consent in writing of the parent or guardian of that party. (2) For the purposes of subsection (1) (a), a voluntary employment agreement made pursuant to section 94B (2), that is duly executed by a party (who is an employee) on behalf of and under the written authority of other employees who are parties to the agreement shall be deemed to have been duly executed by those other employees. (3) Forthwith upon making a written voluntary employment agreement an employer shall give a copy of the voluntary employment agreement to every person employed by him who is or becomes a party to that agreement.". 8. New ss. 94D, 94E and 94F. The Principal Act is amended by inserting after section 94c the following sections:- "94n. Registration of voluntary employment agreement. (1) A voluntary employment agreement shall be lodged with the registrar. (2) The registrar shall refer to the Commission every voluntary employment agreement lodged with him. (3) The Commission may of its own motion and without a hearing approve a voluntary employment agreement or after conferring with the parties may approve or refuse to approve the agreement. 34

1050 Industrial Conciliation and Arbitration Act and Another Act Amendment Act 1987, No. 76 (4) The Commission shall only refuse to approve a voluntary employment agreement if it is satisfied that- (a) the agreement contravenes or provides for the contravention of any of the provisions of this Part; or (b) it is not in the public interest that it should approve the agreement. (5) Every voluntary employment agreement approved by the Commission shall be registered. (6) Until a voluntary employment agreement is registered by the registrar it shall be of no effect and upon registration, shall take effect from the date of registration. 94E. Scope of voluntary employment agreements. (1) A voluntary employment agreement may vary the effect of an award, industrial agreement or voluntary employment agreement in whole or in part. (2) A voluntary employment agreement may suspend or vary the effect of the provisions of section 14 other than subsections (1) (b), (3), (5), (6), (7) and (8). 94F. Provision for paid leave entitlements . (1) Any leave entitlements under a voluntary employment agreement in respect of annual leave, statutory holiday leave, sick leave or long service leave which entitlements are not the entitlements set out in the appropriate award or industrial agreement, must be- (a) in respect of annual leave, at least 4 weeks per year for weekly workers and at least 5 weeks per year for continuous shift workers in either case on full pay; (b) all applicable statutory holiday leave provided for in section 14 (3); (c) in respect of sick leave, at least 8 days per year on full pay with payment limited to 13 weeks in any one year; and (d) in respect of long service leave, at least the leave provided for in section 17. (2) Nothing in subsection (1) shall prevent a voluntary employment agreement providing that an employee shall or may forgo part, not exceeding 50 per centum, of the leave entitlement in respect of annual leave in consideration of the payment to him of an additional amount in lieu of that entitlement being not less than the amount that would have been payable under subsection (1) (a) in respect of that part if the annual leave had been taken as provided in subsection (1) (a).".

Industrial Conciliation and Arbitration Act and Another Act Amendment Act 1987, No. 76 1051 9. New ss. 9 4G , 94H and 941. The Principal Act is amended by inserting after section 94F the following sections:- "94G. Provisions that override voluntary employment agreement . (1) For the purposes of this section "average hourly rate " means- (a) in the case of a full-time employee, the equivalent or composite hourly rate or rates of pay for ordinary time shown in the wages clause of the award or industrial agreement for the class or classes of work in which the employee is employed as varied from time to time by the Industrial Commission; (b) in the case of a part-time employee, the equivalent hourly rate of pay for full-time employees for ordinary time for the class or classes of work in which they are employed; (c) in the case of a casual employee, the equivalent hourly rate of pay for full-time employees for ordinary time for the class or classes of work in which they are employed plus a loading equivalent to 19 per centum of that rate. (2) Where the effect of a provision in a voluntary employment agreement is that the remuneration payable to an employee, when calculated on an hourly basis, would be less than the average hourly rate that would have been payable if the agreement had not been made, the employee shall be entitled to remuneration that when calculated on an hourly basis equals that average hourly rate in lieu of the remuneration provided for in the voluntary employment agreement. 94H. Effect of voluntary employment agreement. (1) A registered voluntary employment agreement shall be enforceable in the same manner as if it were an award. (2) Subject to section 941, a registered voluntary employment agreement (as amended from time to time by any registered voluntary employment agreement) shall be binding upon- (a) the parties to the agreement; (b) every member for the time being of an industrial union of employers that is a party to the agreement and to whom the agreement relates; and (c) every employee, whether or not a signatory to the agreement, who, at any time whilst the agreement is in force- (i) in the case of an agreement made under section 94B (1), is employed by an employer upon whom the agreement is binding in a calling to which the agreement relates or in a business, establishment or undertaking to which the agreement relates;

1052 Industrial Conciliation and Arbitration Act and Another Act Amendment Act 1987, No. 76 or (ii) in the case of an agreement made under section 94B (2), is employed in a calling to which the agreement relates by an employer upon whom the agreement is binding in a business, establishment or undertaking to which the agreement relates. (3) A registered voluntary employment agreement shall not have effect so as to deprive an employee of- (a) any right or benefit actually received by him; or (b) any right accrued to the employee on account of annual leave, sick leave or long service leave or any payment in respect of that leave, before the date when the agreement takes effect. (4) A provision in a voluntary employment agreement that would have the effect of restricting the right of an employee to terminate his employment or of an employer to terminate an employee's services in the manner provided in the award or industrial agreement that would be applicable but for the making of the agreement shall be of no force or effect. (5) For the purposes of subsection (2) "employer" includes a person who acquires the business, establishment or undertaking of an employer. 941. Resolution of conflict between voluntary employment agreements . Where any provision of a registered voluntary employment agreement made under section 94B (1) is inconsistent with any provision of a registered voluntary employment agreement made under section 94B (2), the latter provision, to the extent of its application, shall prevail.". 10. New ss. 94a, 94K and 94L . The Principal Act is amended by inserting after section 941 the following sections:- "94j. Notification of voluntary employment agreement to intending employee. An employer who is a party to a voluntary employment agreement shall, prior to his engagement of a person whose employment by him is to commence after he became a party, give to that person notice setting out particulars of the agreement. 94K. Term of volun tary employment agreement . (1) Unless sooner terminated pursuant to section 94L, a voluntary employment agreement shall be for a term specified therein being not less than 12 months nor more than 3 years. (2) A registered voluntary employment agreement shall continue in force after the expiration of its term unless and until it is terminated in accordance with section 94L. 94L. Termination of voluntary employment agreement. (1) A voluntary employment agreement may be terminated after the expiration of 12 months from the date of its registration and

Industrial Conciliation and Arbitration Act and Another Act Amendment Act 1987, No. 76 1053 before the expiration of the term of the agreement by notice in writing delivered to the registrar which notice shall be signed- (a) in the case of an agreement made under section 94B (1), by the parties to the agreement; or (b) in the case of an agreement made under section 94B (2), by the employer and by more than 40 per centum of the employees who are bound by the agreement. Each signature on a notice under this subsection shall be witnessed by a Justice. (2) A voluntary employment agreement continued in force pursuant to section 94K (2) may be terminated by not less than one month's notice in writing given (a) in the case of an agreement made under section 94B (1), by any party to the agreement to the other party or parties; or (b) in the case of an agreement made under section 94B (2) by- (i) the employer to his employees who are bound by the agreement; or (ii) more than 40 per centum of the employees who are bound by the agreement to the employer. (3) For the purposes of subsection (1) (b) or subsection (2), a notice that is signed by one or more than one employee on behalf of and under the written authority of other employees desirous of terminating the voluntary employment agreement shall be deemed to have been duly signed by those other employees. (4) A person who gives a notice of termination of a voluntary employment agreement pursuant to subsection (2) shall give a copy of the notice to the registrar.". 11. New ss. 94M and 94N . The Principal Act is amended by inserting after section 94L the following sections:- "94m. Jurisdiction of Commission . (1) Unless otherwise provided in the voluntary employment agreement, the Commission does not have power to vary the provisions of a registered voluntary employment agreement. (2) (a) Where the Commission is of the opinion that any term or condition of a voluntary employment agreement- (i) is unfair; (ii) is harsh or unconscionable; or (iii) is against the public interest, the Commission may declare the agreement void to be effective

1054 Industrial Conciliation and Arbitration Act and Another Act Amendment Act 1987, No. 76 ab initio or as from a date being not more than 12 months before the date of the declaration and cancel the registration of the voluntary employment agreement. (b) A voluntary employment agreement declared void by the Commission, notwithstanding that declaration, may be enforced in respect of any right or liability that arose at any time within the period of 12 months prior to the date of the declaration when the agreement was not by virtue of that declaration void as if the declaration had not been made. (3) Except as provided by subsection (1), the Commission shall exercise all of its jurisdiction in relation to a voluntary employment agreement as if it were an award. 94N. Entitlement etc. to copies of voluntary employment agreements. (1) The registrar may issue a copy of a registered voluntary employment agreement to a party thereto, the Minister, the Commission or to an industrial inspector and to no other person. (2) In any proceedings a document purporting to be a copy of a voluntary employment agreement and purporting to be certified as a correct copy under the hand of the registrar shall, upon its production in that proceeding be evidence and in the absence of evidence to the contrary, conclusive evidence of the registration of the original, the contents of the original and that the original was duly executed in accordance with this Act. (3) For the purposes of subsection (1), a person who pursuant to section 94H is bound by a voluntary employment agreement is a party to the agreement.". 12. Amendment of s. 101. Prejudice of employee by reason of membership of union etc. Section 101 of the Principal Act is amended in subsection (1) by- (a) omitting the words "the employee" and substituting the words "that person or employee"; (b) inserting at the end of paragraph (e) the following:- or (f) being an employee of that employer, has refused to enter into a voluntary employment agreement in relation to a calling or callings in which that employee is currently employed". 13. Amendment of s. 109. Publi ca tion of statements . in regard to working at less than aw ar d rates . Section 109 of the Principal Act is amended in subsection (1) by omitting all words from and including the words "such person" to and including the words "either case" and substituting the words "that person to indicate- (a) on the part of an employer, that the employer is ready and willing to employ any person;

Industrial Conciliation and Arbitration Act and Another Act Amendment Act 1987, No. 76 1055 or (b) on the part of an employee, that the employee is ready and willing to be employed by any person, at a rate of wages which is less than- (c) the prescribed rate in the award or voluntary employment agreement concerned for the time being in force or a relevant proposed voluntary employment agreement which proposed agreement if duly made would be registrable by the Commission; or (d) the then applicable minimum rate that by the application of section 94G is payable under the voluntary employment agreement concerned for the time being in force or proposed to be made, in respect of the appropriate calling whichever is the greater and where, in any case". 14. Amendment of s. 123. Awards to prevail over contracts in cases of conflict. Section 123 of the Principal Act is amended by- (a) inserting in the note in and at the beginning of the section after the word "over" the word "certain"; (b) designating the section as subsection (1); (c) adding at the end of the section the following subsection:- "(2) Subsection (1) does not apply in respect of any voluntary employment agreement.". PART 111-AMENDMENTS OF INDUSTRIAL (COMMERCIAL PRACTICES) ACT 15. Citation . (1) In this Part the Industrial (Commercial Practices)Act 1984-1987 is referred to as the Principal Act. (2) The Principal Act as amended by this Part may be cited as the Industrial (Commercial Practices) Act 1984-1987. 16. Amendment of S. 8A. Application of ss . 6 and 7 in ce rta in cases. Section 8A of the Principal Act is amended in subsection (1) by inserting after paragraph (e) the following:- 64 or

1056 Industrial Conciliation and Arbitration Act and Another Act Amendment Act 1987, No. 76 (f) consists in an attempt by an association of employees to induce an employer or an employee not to enter into an agreement pursuant to Part VIA of the Industrial Conciliation and Arbitration Act 1961-1987".