Industrial Relations Amendment Act 2000 (TAS)

Industrial Relations Amendment Act 2000

An Act to amend the Industrial Relations Act 1984

[Royal Assent 20 December 2000]

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 2000 . 2CommencementThis Act commences on a day to be proclaimed. 3Principal ActIn this Act, the Industrial Relations Act 1984 is referred to as the Principal Act. 4Section 3 amended (Interpretation) Section 3(1) of the Principal Act is amended as follows: (a) by omitting paragraph (b) from the definition of controlling authority and substituting the following paragraph: (b) a State employee who is appointed under section 9 , 9A , 10 or 12 of the Police Regulation Act 1898 – the Commissioner of Police; or (b) by omitting "a" first occurring from the definition of Deputy President and substituting "the"; (c) by omitting the definition of employee and substituting the following definition: employee means a private employee or a State employee, and includes – (a) a trainee as defined in the Vocational Education and Training Act 1994 ; and (b) an apprentice; and (c) an outworker; and (d) a person appointed under section 9 , 9A , 10 or 12 of the Police Regulation Act 1898 ; (d) by omitting the definition of Enterprise Commissioner ; (e) by omitting paragraph (a) from the definition of industrial matter and substituting the following paragraph: (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 or re-employment 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 that reinstatement or re-employment is impracticable; 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 (vi) a dispute under the Long Service Leave Act 1976 or the Long Service Leave (State Employees) Act 1994 relating to an entitlement to long service leave, or payment instead of any such leave, or the rate of ordinary pay at which any such leave or payment is to be paid in respect of an employee or former employee; or (f) by omitting paragraph (d) from the definition of industrial matter ; (g) by omitting paragraph (ea) from the definition of industrial matter ; (h) by omitting paragraphs (h) , (i) and (j) from the definition of industrial matter and substituting the following paragraphs: (h) the insurance of employees; or (i) appointments, or promotions, other than in respect of the qualifications required for advancement; (i) by omitting the definition of Police Force and substituting the following definition: outworker means a person who performs for an employer work related to the manufacture of a garment outside the employer’s premises; 5Section 5 amended (Constitution of the Commission) Section 5 of the Principal Act is amended as follows: (a) by omitting subsection (2A) ; (b) by inserting in subsection (3) "or re-appointed" after "appointed"; (c) by inserting in subsection (3) "or re-appointment" after "appointment"; (d) by inserting in subsection (4) "or re-appointed" after "appointed"; (e) by omitting paragraph (b) from subsection (5) and substituting the following paragraph: (b) one other Commissioner to be the Deputy President of the Commission. 6Section 10 amended (Substitute to act during absence of certain Commissioners) Section 10(1) of the Principal Act is amended by omitting ", other than the Deputy President who is the Enterprise Commissioner,". 7Section 11 amended (Removal and suspension of Commissioners) Section 11 of the Principal Act is amended by omitting subsection (6) . 8Section 12 amended (Resignation from office) Section 12(1) of the Principal Act is amended by omitting ", other than the Commissioner who is the Enterprise Commissioner,". 9Section 14 amended (Constitution of Full Bench of Commission) Section 14(1) of the Principal Act is amended by omitting "a" and substituting "the". 10Section 15 amended (General functions and powers of President) Section 15 of the Principal Act is amended as follows: (a) by omitting paragraph (da) from subsection (1) and substituting the following paragraph: (da) allocate for hearing by a Commissioner an agreement filed under section 55 or lodged under section 61H ; and (b) by omitting subsection (2) and substituting the following subsection: (2)  The President is not precluded from – (a) allocating to himself or herself for hearing and determination an application of a type referred to in subsection (1) ; or (b) subject to section 70(2) , appointing himself or herself to a Full Bench. (c) by omitting from subsection (4) ", other than the Deputy President who is the Enterprise Commissioner,". 11Section 19 amended (Jurisdiction of Commission) Section 19(2) of the Principal Act is amended by inserting after paragraph (c) the following paragraph: (ca) hear and determine an application for approval of an agreement made under section 55 or section 61H ; and 12Section 22 amended (Powers of inspection) Section 22 of the Principal Act is amended as follows: (a) by omitting from subsection (1) "or the Enterprise Commissioner"; (b) by omitting from subsection (2) "or the Enterprise Commissioner". 13Section 27 amended (Intervention) Section 27 of the Principal Act is amended as follows: (a) by omitting from subsection (1) "or the Enterprise Commissioner"; (b) by omitting from subsection (4) "before the Enterprise Commissioner". 14Section 28 amended (Representation) Section 28 of the Principal Act is amended as follows: (a) by omitting from subsection (1) "or the Enterprise Commissioner"; (b) by omitting from subsection (5) ", Enterprise Commissioner". 15Section 29 amended (Hearings for settling disputes) Section 29 of the Principal Act is amended as follows: (a) by omitting from subsection (1A)(c) "employee." and substituting "employee; or"; (b) by inserting the following paragraph after paragraph (c) in subsection (1A) : (d) a dispute over the entitlement to long service leave, or payment instead of any such leave, or the rate of ordinary pay at which any such leave or payment is to be paid in respect of the former employee. (c) by omitting subsection (1B) and substituting the following subsection: (1B)  An application for a hearing before a Commissioner in respect of an industrial dispute relating to termination of employment or severance pay relating to redundancy is to be made within 21 days after the date of termination or, if the Commissioner considers there to be exceptional circumstances, such further period as the Commissioner considers appropriate. (d) by omitting from subsection (1C) "Secretary" and substituting "Minister responsible for the Workplace Standards Authority"; (e) by inserting the following subsections after subsection (1C) : (1D)  An application for a hearing in respect of a dispute, including a dispute relating to – (a) termination of employment; or (b) severance pay; or (c) breach of an award or a registered agreement; or (d) long service leave –must contain full particulars of – (e) the circumstances giving rise to the dispute; and (f) the nature of the claim; and (g) the remedy being sought by the applicant. (1E)  At any time before setting a date for a hearing, or before the date of the hearing, the Commission, of its own motion or at the request of a party to the dispute, may require the applicant to provide further and better particulars of – (a) the nature and circumstances of the dispute; and (b) the nature of the claim; and (c) the remedy sought – if the Commission considers it necessary to ensure that the Commission and the parties to the dispute are properly informed. (f) by inserting the following subsection after subsection (2) : (3)  At any stage of proceedings relating to a hearing under subsection (2) , the Commission, of its own motion or at the request of one or more of the parties to the proceedings, may attempt to conciliate the dispute. 16Sections 30 and 30A insertedAfter section 29 of the Principal Act , the following sections are inserted in Division 4: 30Criteria applying to disputes relating to termination of employment (1)  In this section, employee includes a former employee. (2)  In considering an application in respect of termination of employment, the Commission must ensure that fair consideration is accorded to both the employer and employee concerned and that all of the circumstances of the case are fully taken into account. (3)  The employment of an employee who has a reasonable expectation of continuing employment must not be terminated unless there is a valid reason for the termination connected with – (a) the capacity, performance or conduct of the employee; or (b) the operational requirements of the employer’s business. (4)  Without limitation, the following are not valid reasons for termination of employment: (a) membership of a trade union or participation, or involvement, in trade union activities; (b) seeking office as, acting as, or having acted as, a representative of employees; (c) non-membership of a trade union; (d) race, colour, gender, sexual preference, age, physical or intellectual disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin, except where the inherent nature of the work precludes employment for any of those reasons; (e) absence from work during maternity or parental leave; (f) temporary absence from work because of illness or injury, provided that nothing in this paragraph is to be construed as removing an employer’s right to terminate an employee’s employment on account of persistent or unjustified absenteeism; (g) the filing of a complaint, or the participation in proceedings, against an employer involving alleged violation of laws or regulations or recourse to competent administrative authorities. (5)  Where an employer terminates an employee’s employment, the onus of proving the existence of a valid reason for the termination rests with the employer. (6)  Where an applicant alleges that his or her employment has been unfairly terminated, the onus of proving that the termination was unfair rests with the applicant. (7)  The employment of an employee must not be terminated for reasons related to the employee’s conduct, capacity or performance unless he or she is informed of those reasons and given an opportunity to respond to them, unless in all the circumstances the employer cannot reasonably be expected to provide such an opportunity. (8)  An employee responding to an employer under subsection (7) is to be offered the opportunity to be assisted by another person of the employee’s choice. (9)  The principal remedy in a dispute in which the Commission finds that an employee’s employment has been unfairly terminated is an order for reinstatement of the employee to the job he or she held immediately before the termination of employment or, if the Commission is of the opinion that it is appropriate in all the circumstances of the case, an order for re-employment of the employee to that job. (10)  The Commission may order compensation, instead of reinstatement or re-employment, to be paid to an employee who the Commission finds to have been unfairly dismissed only if, in the Commission’s opinion, reinstatement or re-employment is impracticable. (11)  In determining the amount of compensation under subsection (10) , the Commission must have regard to all the circumstances of the case, including the following: (a) the length of the employee’s service with the employer; (b) the remuneration that the employee would have received, or would have been likely to receive, if the employee’s employment had not been terminated; (c) any other matter the Commission considers relevant. (12)  Where the Commission finds that an employee’s employment has been unfairly terminated and has determined that reinstatement or re-employment is impracticable, any amount of compensation must not exceed an amount equivalent to 6 months’ ordinary pay for that employee. (13)  The Commission is to take into account any efforts of the employee to mitigate the loss suffered as a result of the termination of his or her employment. 30AEmployees under Federal award A person who is employed, or was formerly employed, under a Federal award and to whom the termination provisions contained in Division 3 of Part VIA of the Commonwealth Act do not apply may apply to the Commission for the hearing of a dispute specified in section 29(1A)(a) or (b) . 17Section 31 amended (Orders arising from hearings) Section 31 of the Principal Act is amended as follows: (a) by omitting from subsection (1A) “take into account the standards of general application contained in Part II of the International Labour Organisation’s Convention concerning the Termination of Employment at the Initiative of the Employer” and substituting "give effect to the provisions of section 30 "; (b) by omitting subsection (1B) and substituting the following subsection: (1B)  If a Commissioner, in hearing an industrial dispute relating to termination of employment, finds that an employee or a former employee has been unfairly dismissed, the Commissioner may – (a) if he or she believes it to be appropriate, order reinstatement or re-employment of the employee or former employee; or (b) if in the Commissioner’s opinion reinstatement or re-employment is impracticable, order that the employer pay the employee or former employee an amount of compensation, instead of reinstatement or re-employment, that the Commissioner considers appropriate in the circumstances, subject to section 30(12) . 18Section 61F amended (Minimum conditions of employment) Section 61F of the Principal Act is amended as follows: (a) by omitting subsection (1) and substituting the following subsection: (1)  For an employee not otherwise covered by an award or a registered agreement, conditions of employment fixed by an enterprise agreement in respect of rates of wages must not be less than – (a) subject to paragraph (c) , in the case of a person other than an adult – (i) who is 18 years of age or under, 50% of the hourly rate referred to in paragraph (b) ; or (ii) who is 19 years of age, 65% of the hourly rate referred to in paragraph (b) ; or (iii) who is 20 years of age, 80% of the hourly rate referred to in paragraph (b) ; and (b) in the case of a person who is an adult, an hourly rate calculated by reference to the minimum wage as established by the Commission under section 35 (1) (b) and to the ordinary weekly hours of work for which that person is employed; and (c) in the case of an apprentice or trainee, the appropriate rate specified in a relevant award. (b) by omitting from subsection (2) "Conditions of employment fixed by an enterprise agreement for" and substituting "For an employee not otherwise covered by an award or a registered agreement,". 19Section 61I amended (Hearing) Section 61I(1) of the Principal Act is amended by omitting "On receipt of an enterprise agreement, the Enterprise Commissioner must" and substituting "The Registrar is to refer an agreement lodged under section 61H to the President who is to refer the agreement to a Commissioner who must". 20Section 61J amended (Approval of enterprise agreement) Section 61J(1) of the Principal Act is amended by omitting paragraph (e) and substituting the following paragraph: (e) any matter raised during a hearing convened under section 61I by the Minister, or by an organization intervening under section 27 , justifies refusal of the approval of the agreement; or 21Part IVA, Division 3 repealed Division 3 of Part IVA of the Principal Act is repealed. 22Section 61ZD amended (Secret ballots under this Part) Section 61ZD(4)(b) of the Principal Act is amended by omitting “Enterprise Commissioner’s” and substituting “Registrar’s”. 23Section 63 amended (Registration of associations) Section 63(1)(a) of the Principal Act is amended as follows: (a) by omitting from subparagraph (vii) "industrial" and substituting "registered"; (b) by inserting in subparagraph (viii) "or enterprise agreement" after "agreement"; (c) by omitting from subsection (3)(iv) "industrial" first occurring and substituting "registered"; (d) by inserting in subsection (3)(iv) "or enterprise agreement" after "agreement". 24Section 65 amended (Effect of registration) Section 65(g) of the Principal Act is amended by inserting "or enterprise agreement" after "agreement". 25Section 70 amended (Rights of appeal) Section 70 of the Principal Act is amended as follows: (a) by inserting in subsection (1)(b) ", or long service leave" after "redundancy"; (b) by inserting the following subsection after subsection (1) : (1A)  A Full Bench is not to uphold an appeal under subsection (1) unless in its opinion – (a) the Commissioner against whose decision the appeal is made, in reaching that decision – (i) made a legal error; or (ii) acted on a wrong principle; or (iii) gave weight to an irrelevant matter; or (iv) gave insufficient weight to a relevant matter; or (v) made a mistake as to the facts; or (b) the decision was plainly unreasonable or unjust. (c) by omitting from subsection (2) "or Enterprise Commissioner". 26Section 71 amended (Procedure on appeals) Section 71 of the Principal Act is amended by inserting after subsection (2) the following subsection: (2A)  At any time before setting a date for a hearing, or before the date of the hearing, the Full Bench may require the appellant to provide, to the Full Bench and the other parties to the appeal, further and better particulars of the grounds for appeal. 27Section 75 amended (Records of employment) Section 75 of the Principal Act is amended by inserting after subsection (1) the following subsection: (1A)  On the request of an employee, an employer must – (a) make available to the employee – (i) his or her record of employment made under subsection (1) ; and (ii) any other record kept by the employer relating to the employee’s employment; and (b) allow the employee to inspect and take copies of those records. 28Section 98 insertedAfter section 97 of the Principal Act , the following section is inserted in Part VIII: 98Savings provision An enterprise agreement that is in force immediately before the commencement of the Industrial Relations Amendment Act 2000 continues in force for the period specified in it unless it is terminated in accordance with section 61R . 29Omission of ", the Enterprise Commissioner"Each of the provisions of the Principal Act specified in Column 1 of Schedule 1 is amended by omitting ", the Enterprise Commissioner" on the number of occurrences specified in Column 2 of that Schedule . 30Omission of "Enterprise"Each of the provisions of the Principal Act specified in Column 1 of Schedule 2 is amended by omitting "Enterprise" on the number of occurrences specified in Column 2 of that Schedule . 31Substitution of "Registrar" for "Enterprise Commissioner"Each of the provisions of the Principal Act specified in Column 1 of Schedule 3 is amended by omitting "Enterprise Commissioner" on the number of occurrences specified in Column 2 of that Schedule and substituting "Registrar". Schedule 1Omission of ", the Enterprise Commissioner"

Section 29

Column 1

Provision amended

Column 2

Number of occurrences

Section 28(3)

1

Section 28(4)

1

Section 28(6)

1

Section 69(2)

1

Section 70(1)(c)

1

Section 83(1)

1

Schedule 2Omission of "Enterprise"

Section 30

Column 1

Provision amended

Column 2

Number of occurrences

Section 61I(2)

1

Section 61I(2A)

1

Section 61I(2B)

1

Section 61I(3)

1

Section 61I(5)

1

Section 61I(6)

1

Section 61I(7)

1

Section 61I(8)

1

Section 61J(1)

1

Section 61J(2)

2

Section 61J(3)

2

Section 61S(2)(b)

1

Section 61S(4)

1

Section 61S(5)

2

Section 61S(6)

2

Section 61S(7)

1

Schedule 3Substitution of "Registrar" for "Enterprise Commissioner"

Section 31

Column 1

Provision amended

Column 2

Number of occurrences

Section 61H

1

Section 61K(2)

1

Section 61L(1)

1

Section 61L(2)

1

Section 61R(3)

1

Section 61R(4)

1

Section 61R(5)

2

Section 61ZD(1)

1

Section 61ZD(1A)

1

Section 61ZD(2)

3

Section 61ZD(4)

1

[Second reading presentation speech made in:

House of Assembly on 31 AUGUST 2000

Legislative Council on 15 NOVEMBER 2000]