Industrial Relations Amendment Act 1997 (TAS)

Industrial Relations Amendment Act 1997

An Act to amend the Industrial Relations Act 1984

[Royal Assent 27 June 1997]

Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows:

1Short titleThis Act may be cited as the Industrial Relations Amendment Act 1997 . 2CommencementThis Act commences on the day after they day on which it receives the Royal Assent. 3Principal ActIn this Act, the Industrial Relations Act 1984 is referred to as the Principal Act. 4Long title amended The long title of the Principal Act is amended by omitting "in both the public and private sectors of employment, including the making of industrial awards and the conduct of hearings, and the summoning of conferences, for settling disputes, to provide for the registration of employer and employee organizations," and substituting ", including the making of awards, the conduct of hearings and the settling of disputes, to provide for the registration of employer and employee organisations, to encourage workplace bargaining". 5Section 3 amended (Interpretation) Section 3 of the Principal Act is amended as follows: (a) by omitting the definition of Commonwealth Act from subsection (1) and substituting the following definition: Commonwealth Act means the Workplace Relations Act 1996 of the Commonwealth; (b) by inserting the following definition after the definition of enterprise in subsection (1) : enterprise agreement means an agreement referred to in section 61B ; (c) by omitting "under Part IV " from the definition of industrial agreement in subsection (1) and substituting "referred to in section 55(1) "; (d) by omitting the definition of industrial dispute from subsection (1) and substituting the following definition: industrial dispute means a dispute in relation to an industrial matter – (a) that has arisen; or (b) that is likely to arise or is threatened or impending; (e) by omitting paragraphs (a) and (b) from the definition of industrial matter in subsection (1) and substituting the following paragraphs: (a) a matter relating to – (i) the mode, terms and conditions of employment; or (ii) the termination of employment of an employee or former employee; or (iii) the reinstatement of an employee or a former employee who has been unfairly dismissed; or (iv) the payment of compensation to an employee or a former employee if the Commission determines reinstatement is impractical; or (v) severance pay for an employee or a former employee whose employment is to be, or has been, terminated as a result of redundancy; or (b) a breach of an award or a registered agreement – (f) by omitting "employees; or" from paragraph (h) of the definition of industrial matter in subsection (1) and substituting "employees;"; (g) by omitting "advancement;" from paragraph (i) of the definition of industrial matter in subsection (1) and substituting "advancement; or"; (h) by inserting the following paragraph after paragraph (i) in the definition of industrial matter in subsection (1) : (j) an enterprise agreement, other than a matter referred to in paragraph (a)(ii) , (iii) , (iv) , (v) or  (b) , that includes private arbitration for settling grievances; (i) by omitting the definition of registered enterprise agreement from subsection (1) ; (j) by omitting the definition of registered industrial agreement from subsection (1) and substituting the following definition: registered agreement means – (a) an industrial agreement registered under Part IV ; or (b) an enterprise agreement registered under Part IVA ; (k) by omitting the definition of Secretary from subsection (1) and substituting the following definition: Secretary, in relation to a provision, means the Head of the Agency within the meaning of the Tasmanian State Service Act 1984 within which the provision is administered; (l) by omitting subsection (2) . 6Section 10 amended (Substitute to act during absence of certain Commissioners) Section 10 of the Principal Act is amended by omitting subsection (10) and substituting the following subsections: (10)  Anything done or omitted to be done by a person while acting under this section in the office of Deputy President or any other Commissioner is as valid as if done or omitted to be done by the Deputy President or other Commissioner. (11)  A person is not required to inquire whether or not any occasion has arisen requiring or authorising a person to act in the office of the Deputy President or any other Commissioner. 7Section 11 amended (Removal and suspension of Commissioners) Section 11 of the Principal Act is amended by omitting subsection (3) . 8Section 15 amended (General functions and powers of President) Section 15 of the Principal Act is amended as follows: (a) by omitting paragraph (d) from subsection (1) and substituting the following paragraphs: (d) allocate for hearing and determination by a Commissioner applications in respect of industrial disputes; (da) allocate for hearing by a Commissioner agreements filed under section 55 ; (b) by omitting from subsection (1)(f)(ii) " section 70 (1) " and substituting "sections  70(1) and  82 "; (c) by omitting from subsection (2)(c) "or conference"; (d) by inserting the following paragraph after paragraph (d) in subsection (2) : (da) by subsection (1)(da) from appointing himself or herself to hear a matter under section 55 ; (e) by omitting subsection (2A) . 9Section 19 amended (Jurisdiction of Commission) Section 19(2) of the Principal Act is amended as follows: (a) by inserting in paragraph (a) ", vary, rescind or correct" after "make"; (b) by omitting from paragraph (c) "and conferences"; (c) by inserting the following paragraph after paragraph (d) : (da) hear and determine applications under Part V ; 10Section 21 amended (Procedure of Commission and associated matters) Section 21 of the Principal Act is amended as follows: (a) by omitting paragraph (b) from subsection (2) and substituting the following paragraph: (b) direct that organisations or persons be summoned to attend those proceedings; (b) by omitting from subsection (3) "a person summoned under section 30 ,". 11Section 22 amended (Powers of inspection) Section 22 of the Principal Act is amended as follows: (a) by omitting from subsection (2) ", industrial agreement or registered enterprise" and substituting "or a registered"; (b) by omitting from subsection (3)(b) ", industrial agreement or registered enterprise" and substituting "or a registered". 12Section 28 amended (Representation) Section 28 of the Principal Act is amended as follows: (a) by inserting in subsection (3) ", the Enterprise Commissioner" after "Commission"; (b) by inserting in subsection (4) ", the Enterprise Commissioner" after "Commission"; (c) by inserting in subsection (6) ", the Enterprise Commissioner" after "Commission". 13Part II, Division 4: Heading amended Division 4 of Part II of the Principal Act is amended by omitting "and conferences" from the heading to that Division. 14Section 29 amended (Hearings for settling disputes) Section 29 of the Principal Act is amended as follows: (a) by omitting from subsection (1) "that has arisen or the applicant considers is likely to arise"; (b) by omitting subsection (1A) and substituting the following subsection: (1A)  A former employee may apply to the President for a hearing before a Commissioner in respect of an industrial dispute relating to – (a) the termination of employment of the former employee; or (b) severance pay in respect of employment of the former employee terminated as a result of redundancy; or (c) a breach of an award or a registered agreement involving the former employee. (c) by inserting in subsection (1B) "or within any further period the Commissioner considers appropriate in the circumstances" after "of termination"; (d) by inserting the following subsection after subsection (1B) : (1C)  The Secretary may apply to the President for a hearing before a Commissioner in respect of an industrial dispute relating to a breach of an award or a registered agreement. (e) by omitting subsections (2) and (3) and substituting the following subsection: (2)  The President must – (a) allocate to a Commissioner for hearing an application made under this section; and (b) cause notice of the time and place of the hearing to be given to a person who, or an organisation which, the President considers is able to assist in the settlement or prevention of the industrial dispute. 15Section 30 repealed Section 30 of the Principal Act is repealed. 16Section 31 amended (Orders arising from hearings) Section 31 of the Principal Act is amended as follows: (a) by omitting from subsection (1) "or a conference under section 30 "; (b) by omitting from subsection (1) "or conference" three times occurring; (c) by omitting from subsection (1A) "as set out in Schedule 10 to the Commonwealth Act "; (d) by inserting the following subsections after subsection (1A) : (1B)  If a Commissioner, in hearing an industrial dispute relating to termination of employment, considers that an employee or a former employee has been unfairly dismissed but reinstatement to the employee’s or former employee’s previous position is impractical, the Commissioner, if of the opinion that it is appropriate to do so, may make an order requiring the employer to pay the employee or former employee compensation of any amount the Commissioner determines appropriate. (1C)  A Commissioner, in hearing an industrial dispute relating to termination of employment resulting from redundancy, may make an order in respect of severance pay for an employee or former employee whose employment is to be, or has been, terminated. (e) by omitting from subsection (7)(a) "or conference". 17Section 36 amended (Commission to be satisfied of public interest) Section 36(1) of the Principal Act is amended by omitting "under section 55 , the" and substituting ", the". 18Part III, Division 2: Heading amended Division 2 of Part III of the Principal Act is amended by inserting in the heading to that Division "or registered agreement" after "award". 19Part III, Division 3: Heading amended Division 3 of Part III of the Principal Act is amended by inserting in the heading to that Division "and registered agreements" after "awards". 20Section 48 substituted Section 48 of the Principal Act is repealed and the following section is substituted: 48Breach of awards and registered agreements A person or organisation subject to any provision of an award or a registered agreement must comply with that provision.Penalty:  Fine not exceeding 50 penalty units. 21Section 49 amended (Remuneration fixed by award or registered agreement) Section 49 of the Principal Act is amended as follows: (a) by omitting from subsection (1) ", industrial agreement or registered enterprise" and substituting "or a registered"; (b) by inserting in subsection (2) ", a registered agreement" after "of an award"; (c) by omitting from subsection (2) ", industrial agreement or registered enterprise" and substituting "or a registered"; (d) by omitting from subsection (3) ", industrial agreement or registered enterprise" and substituting "or a registered"; (e) by omitting from subsection (4) ", industrial agreement or registered enterprise" first occurring and substituting "or a registered"; (f) by omitting paragraph (a) from subsection (4) and substituting the following paragraph: (a) the employee does not work in any week for his or her normal ordinary weekly hours because of action taken by the employer; and (g) by omitting paragraphs (a) and (b) from subsection (5) and substituting the following paragraphs: (a) wages at the rate fixed by the award or registered agreement; and (b) overtime payments for any overtime worked in accordance with the award or registered agreement at the rate fixed by the award or registered agreement. (h) by omitting from subsection (6)(a) "or part-time"; (i) by omitting from subsection (6)(b) ", industrial agreement or registered enterprise" and substituting "or registered". 22Section 50 amended (Piecework rates) Section 50 of the Principal Act is amended as follows: (a) by inserting in subsection (1) "or a registered agreement" after "award"; (b) by inserting in subsection (2) "or a registered agreement" after "award"; (c) by inserting in subsection (3) "or a registered agreement" after "award". 23Section 51 amended (Offences relating to remuneration) Section 51 of the Principal Act is amended as follows: (a) by omitting from subsection (3) "Where, by virtue of an award" and substituting "If, under an award or a registered agreement"; (b) by inserting in subsection (4) "or a registered agreement" after "award". 24Section 52 amended (Remedy of employees) Section 52 of the Principal Act is amended as follows: (a) by omitting from subsection (1)(a) "during the 12 months immediately" and substituting "for the 2 years"; (b) by inserting in subsection (4) "or a registered agreement" after "award". 25Section 55 amended (Making of industrial agreements) Section 55 of the Principal Act is amended by omitting subsections (3) and (4) and substituting the following subsections: (3)  The Registrar is to refer an agreement filed under subsection (2) to the President who is to refer the agreement to a Commissioner for a hearing into the matter. (3A)  In conducting a hearing, a Commissioner is to give the parties to the agreement an opportunity to be heard. (4)  After conducting a hearing a Commissioner may – (a) approve the agreement; or (b) refuse to approve the agreement. 26Section 56 amended (Registration and evidence of agreement) Section 56 of the Principal Act is amended by inserting after subsection (3) the following subsection: (4)  An industrial agreement has no effect unless it is registered. 27Section 59 amended (Variation, &c., of agreement) Section 59(2) of the Principal Act is amended by omitting "if the parties to it agree" and substituting "on receipt of an application by the parties to the agreement". 28Section 61B amended (Purpose of enterprise agreement) Section 61B of the Principal Act is amended by omitting "a single" and substituting "an". 29Section 61D amended (Parties to enterprise agreement) Section 61D of the Principal Act is amended as follows: (a) by omitting paragraph (d) from subsection (1) and substituting the following paragraph: (d) any other person employed in the enterprise who is not included in paragraph (a) , (b) or (c) . (b) by omitting from subsection (2) "an employee or" and substituting "employees or an". 30Section 61I amended (Hearing) Section 61I of the Principal Act is amended as follows: (a) by inserting in subsection (1)(b) "and the parties to the agreement" after "Minister"; (b) by inserting the following subsection after subsection (2A) : (2B)  For the purpose of subsection (2) , the Enterprise Commissioner must be satisfied that the parties to the agreement were provided with a written statement at least 2 weeks before the ballot to approve the agreement that specifies – (a) any changes to their entitlements and obligations resulting from the agreement taking effect; and (b) the nature of any changes to existing conditions of employment. (c) by inserting the following subsection after subsection (7) : (8)  The Enterprise Commissioner is not bound by the rules of evidence in informing himself or herself on any matter at a hearing. 31Section 61J amended (Approval of enterprise agreement) Section 61J of the Principal Act is amended as follows: (a) by omitting from subsection (1)(a) "fixed by that agreement are less than the conditions" and substituting "specified in the agreement do not comply with the minimum conditions of employment"; (b) by omitting paragraph (e) from subsection (1) and substituting the following paragraphs: (e) any matter raised by the Minister in intervening in the hearing relating to the approval of the agreement justifies refusal of the approval of the agreement; or (f) the agreement is not fair in all the circumstances; or (g) the requirements referred to in section 61I(2) , (2A) and (2B) have not been met. (c) by omitting subsection (3) and substituting the following subsection: (3)  If the Enterprise Commissioner refuses to approve an enterprise agreement, the Enterprise Commissioner, by notice in writing, must advise the parties to the agreement and the Minister of the reasons for the refusal. 32Section 61ZC amended (Functions and powers) Section 61ZC(1) of the Principal Act is amended by omitting paragraph (b) . 33Section 63 amended (Registration of associations) Section 63 of the Principal Act is amended by inserting after subsection (12) the following subsection: (12A)  After making a determination under subsection (10) (c) , the Commissioner must vary the award to which the determination relates to reflect the determination. 34Section 65 amended (Effect of registration) Section 65 of the Principal Act is amended by omitting paragraph (f) . 35Section 65A amended (Recall and re-issue of certificate of registration) Section 65A of the Principal Act is amended by inserting after subsection (6) the following subsection: (6A)  After making a determination under subsection (3) , the Commissioner must vary the award to which the determination relates to reflect the determination. 36Section 70 amended (Rights of appeal) Section 70 of the Principal Act is amended by omitting subsection (1) and substituting the following subsection: (1)  An appeal may be made to the Full Bench against – (a) a decision of a Commissioner to make, vary or rescind an award, or refuse to make, vary or rescind an award, by – (i) an organisation which appeared at the hearing; or (ii) an organisation granted, or deemed under Part V to have, an interest in the award; or (iii) the Minister; and (b) an order made by a Commissioner under section 31(1) after a hearing relating to an industrial dispute in respect of any termination of employment, including termination resulting from redundancy, or breach of an award or a registered agreement by – (i) the party who applied for the hearing; or (ii) the party to whom the order relates; or (iii) the Minister; and (c) a decision made by a Commissioner, the Enterprise Commissioner or the Registrar under section 43 , 55 , 59 , 61J , 61R , 61S ,  63(10) , 65A ,  67(4) , 67A or  75(7E) by – (i) any party who appeared at the hearing to which the decision relates; or (ii) any organisation granted, or deemed under Part V to have, an interest in the award to which the decision relates; or (iii) the Minister. 37Section 76 amended (Powers of inspectors) Section 76(1)(b) of the Principal Act is amended by omitting ", industrial agreement or registered enterprise" and substituting "or a registered". 38Section 77 amended (Right of entry of union officials) Section 77(1)(b) of the Principal Act is amended by omitting ", industrial agreement or registered enterprise" and substituting "or registered". 39Section 79 amended (Employment of infirm persons) Section 79 of the Principal Act is amended as follows: (a) by inserting in subsection (1) "or relevant registered agreement" after "award"; (b) by inserting in subsection (2) "or relevant registered agreement" after "award". 40Section 84 amended (Copies of awards and registered agreements) Section 84 of the Principal Act is amended as follows: (a) by inserting "or a registered agreement" after "an award"; (b) by inserting "or registered agreement" after "the award". 41Section 85 substituted Section 85 of the Principal Act is repealed and the following section is substituted: 85Awards and registered agreements prevail (1)  Any provision of an award or a registered agreement that is inconsistent with a provision of a contract of service prevails over the latter provision to the extent of that inconsistency. (2)  Any provision of a contract of service that is inconsistent with a provision of an award or a registered agreement is to be construed and has effect as if it were modified to conform to the provision of that award or registered agreement. (3)  Any provision of a contract of service that provides for any conditions of employment that are more favourable than those provided by an award or a registered agreement is not inconsistent only because of that fact. 42Section 86 amended (Prohibition on victimisation) Section 86(1)(c) of the Principal Act is amended by inserting "or a registered agreement" after "award".

[Second reading presentation speech made in:

House of Assembly on 29 APRIL 1997

Legislative Council on 18 JUNE 1997]