Industrial Relations Amendment Regulation (No. 1) 1994 (Qld)

Queensland Subordinate Legislation 1994 No. 389 Industrial Relations Act 1990 INDUSTRIAL RELATIONS AMENDMENT REGULATION (No. 1) 1994 TABLE OF PROVISIONS Section Page 1 Short title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 2 Regulation amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 3 Amendment of s 3.71 (Certificates to be given in accounts) . . . . . . . . . . . . 3 4 Insertion of new Pt 3A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 PART 3A—GENERAL CONDITIONS OF EMPLOYMENT Division 1—Adoption leave 3.75 Object of Division . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 3.76 Basic principles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 3.77 Definitions for Division . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 3.78 Entitlement to adoption leave . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 3.79 Conditions of entitlement to adoption leave . . . . . . . . . . . . . . . . . . . 7 3.80 Period of adoption leave . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 3.81 Entitlement reduced by other adoption leave available to employee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 3.82 Annual leave or long service leave taken instead of, or in conjunction with, adoption leave . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 3.83 Extending adoption leave . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 3.84 Shortening adoption leave . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 3.85 Cancellation of adoption leave if employee does not finish 1 year of continuous service . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 3.86 Cancellation of adoption leave in other circumstances . . . . . . . . . . 13

2 Industrial Relations Amendment (No. 1) No. 389, 1994 3.87 Effect on adoption leave if placement does not happen . . . . . . . . . . 13 3.88 What happens if employee ceases to be the primary caregiver . . . 14 3.89 Employee’s duty if excessive leave given or if periods of long adoption leave overlap . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 3.90 Employer to warn replacement employee employment is only temporary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 3.91 Return to work after adoption leave . . . . . . . . . . . . . . . . . . . . . . . . . . 16 3.92 Adoption leave and continuity of service . . . . . . . . . . . . . . . . . . . . . 16 Division 2—Dismissal 3.93 Interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 3.94 Certain employees excluded from operation of Pt 12, Div 5, Sdiv 3 of the Act (s 290(3) of the Act) . . . . . . . . . . . . . . . . . 17 3.95 Matters to be disregarded when calculating continuous service . . . 17 5 Amendment of Pt 4 (Miscellaneous) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 6 Numbering and renumbering of regulation . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 7 Expiry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

s1 3 s4 Industrial Relations Amendment (No. 1) No. 389, 1994 ˙ Short title 1. This regulation may be cited as the Industrial Relations Amendment Regulation (No. 1) 1994 . ˙ Regulation amended 2. This regulation amends the Industrial Relations Regulation 1990 . ˙ Amendment of s 3.71 (Certificates to be given in accounts) 3. Section 3.71(1)(b)(i), (ii), (iii) and (iv), ‘; or’— omit, insert— ‘; and’. ˙ Insertion of new Pt 3A 4. After Part 3— insert — ‘ PART 3A—GENERAL CONDITIONS OF EMPLOYMENT ‘ Division 1—Adoption leave ˙ ‘ Object of Division ‘ 3.75(1) This Division gives an employee adoption leave entitlements 1 . (2) However, if another State law, award, industrial agreement, certified agreement, enterprise flexibility agreement or order also gives the employee adoption leave entitlements, this Division supplements those entitlements. 1 This Division is made under section 287 of the Act. The section allows regulations to provide for employers to give employees unpaid adoption leave.

s4 4 s4 Industrial Relations Amendment (No. 1) No. 389, 1994 ˙ ‘ Basic principles ‘ 3.76(1) Under this Division, if a child under 5 years is placed with an employee for adoption, the employee and the employee’s spouse are entitled to unpaid adoption leave (totalling 52 weeks) to care for the child. ‘ (2) However, an employee’s entitlement to leave under this Division is reduced by the employee’s adoption leave entitlements other than under this Division. Example of ways an employee may be entitled to adoption leave other than under this Division— Under another State law, award, industrial agreement, certified agreement, enterprise flexibility agreement or order. ‘ (3) To obtain adoption leave under this Division, an employee must satisfy requirements about— (a) length of service; and (b) notice periods; and (c) information and documentation. ‘ (4) Except for 3 weeks at the time of the placement, an employee and the employee’s spouse must take adoption leave at different times. ‘ (5) An employee may take other leave, including for example annual leave, in conjunction with adoption leave, but this reduces the amount of adoption leave the employee may take. ‘ (6) Adoption leave may be changed in certain circumstances. ‘ (7) Generally, an employee must give notice of a change only if it is foreseeable. ‘ (8) An employer may cancel adoption leave only if— (a) the employee will not become, or ceases to be, the child’s primary caregiver; or (b) a mistake has been made in calculating the amount of leave the employee is entitled to. ‘ (9) An employee who takes adoption leave is, in most circumstances, entitled to return to the position the employee held before the leave was

s4 5 s4 Industrial Relations Amendment (No. 1) No. 389, 1994 taken. ‘ (10) Adoption leave does not break an employee’s continuity of service. ˙ ‘ Definitions for Division ‘ 3.77 In this Division— “adoption” means adoption under a Commonwealth or State law. “adoption agency” means an agency, body, office, or court, authorised by a Commonwealth or State law to perform functions about adoption. “adoption leave” means short adoption leave or long adoption leave. “child” does not include a child or stepchild of the employee or the employee’s spouse. “court order” means an order of a court or tribunal having power to fix wages and other employment conditions. “Division 1 adoption leave” means Division 1 short adoption leave or Division 1 long adoption leave. “Division 1 long adoption leave” has the meaning given in section 3.78(1)(b). “Division 1 short adoption leave” has the meaning given in section 3.78(1)(a). “employee” includes a part-time employee, but not a casual or seasonal employee. “law” includes an unwritten law. “long adoption leave” means Division 1 long adoption leave or leave (other than under this Division) that— (a) an employee is entitled to, has applied for or has been given for the child’s adoption; and (b) is analogous to Division 1 long adoption leave, or would be analogous except that— (i) it is paid leave; or (ii) different rules govern eligibility for it; or

s4 6 s4 Industrial Relations Amendment (No. 1) No. 389, 1994 (iii) it can be taken for a different period. Example of ways an employee may be entitled to leave other than under this Division — Under another Commonwealth or State law, or an award, order or agreement. “placement” means the placement, by an adoption agency, of a child with an employee for adoption. “relevant statutory declaration” , for an employee, means a statutory declaration submitted under section 3.79(1)(f) 2 . “short adoption leave” means Division 1 short adoption leave or leave (other than under this Division) that— (a) an employee is entitled to, has applied for or has been given for the child’s adoption; and (b) is analogous to Division 1 short adoption leave, or would be analogous except that— (i) it is paid leave; or (ii) different rules govern eligibility for it; or (iii) it can be taken for a different period. Example of ways an employee may be entitled to leave other than under this Division — Under another Commonwealth or State law, or an award, order or agreement. “spouse” of an employee includes a person of the opposite sex to the employee who lives with the employee in a marriage-like relationship, although not legally married to the employee. ˙ ‘ Entitlement to adoption leave ‘ 3.78(1) An employee with whom a child is placed for adoption is entitled to— (a) a continuous period of up to 3 weeks unpaid leave ( “Division 1 short adoption leave” ) beginning on the placement day to care for the child; and (b) a continuous period of up to 52 weeks unpaid leave ( “Division 1 long adoption leave” ) to be the child’s primary caregiver. 2 Section 3.79 deals with conditions of entitlement to adoption leave.

s4 7 s4 Industrial Relations Amendment (No. 1) No. 389, 1994 ‘ (2) However, the total of the employee’s and the employee’s spouse’s short adoption leave and long adoption leave must not be more than 52 weeks. ‘ (3) This section applies subject to section 3.80 (Period of adoption leave). Example of an employee’s total adoption leave entitlement— If the employee and the employee’s spouse have each been given 3 weeks short adoption leave, the employee is entitled to only 46 weeks long adoption leave. ˙ ‘ Conditions of entitlement to adoption leave ‘ 3.79(1) An employer must give an employee Division 1 short adoption leave and Division 1 long adoption leave if— (a) the employee notifies the employer, as soon as practicable after receiving notice of approval of the placement, that the employee intends to apply for adoption leave; and (b) within 60 days after giving the employer notice under paragraph (a), the employee gives the employer written notice of the period or periods of adoption leave the employee intends to apply for; and (c) as soon as practicable after the employee is notified of the proposed placement date, the employee gives the employer— (i) written notice of the date; or (ii) a statement from the adoption agency of the date; and (d) the employee applies for the leave— (i) for Division 1 short adoption leave—at least 14 days before the proposed placement date; or (ii) for Division 1 long adoption leave—at least 70 days before the first day of the long adoption leave; and (e) the application states the first and last days of the period or periods of leave; and (f) the employee submits with the application a statutory declaration stating—

s4 8 s4 Industrial Relations Amendment (No. 1) No. 389, 1994 (i) the employee proposes to take one or both of the following types of leave— (A) Division 1 short adoption leave to care for the child; (B) Division 1 long adoption leave to be the child’s primary caregiver; and (ii) the child— (A) will be at the proposed placement date, or was at the placement date, under 5 years; and (B) is not a child or stepchild of the employee or the employee’s spouse; and (C) will not have at the proposed placement date, or had not at the placement date, previously lived with the employee for a continuous period of 6 months or more; and (iii) the first and last days of— (A) short adoption leave for which the employee’s spouse intends to apply, or has applied; and (B) long adoption leave for which the employee’s spouse intends to apply, or has applied; and (C) annual or long service leave for which the employee’s spouse intends to apply, or has applied, instead of or in conjunction with the adoption leave; and (iv) the employee— (A) will be the child’s primary caregiver throughout the long adoption leave proposed to be taken by the employee; and (B) will not engage in conduct inconsistent with the employee’s employment contract while on adoption leave; and (g) the child will be, or has been, placed with the employee for adoption; and (h) it is reasonable to expect the employee will finish, or had finished,

s4 9 s4 Industrial Relations Amendment (No. 1) No. 389, 1994 at least 1 year of continuous service with the employer on the day before the first day of the adoption leave. ‘ (2) Subsection (1)(d)(i) does not apply if— (a) because of the placement date set by the adoption agency, it was not reasonably practicable for the employee to comply with the subparagraph; and (b) the employee applies for the leave as soon as practicable before the proposed placement date. ‘ (3) Subsection (1)(d)(ii) does not apply if— (a) because of the placement date set by the adoption agency, it was not reasonably practicable for the employee to comply with the subparagraph; and (b) the employee applies for the leave as soon as practicable before the first day of the leave. ˙ ‘ Period of adoption leave ‘ 3.80(1) Division 1 short adoption leave must— (a) begin on the placement date; and (b) be for a continuous period of not more than 3 weeks. ‘ (2) Division 1 long adoption leave— (a) must begin on the later of— (i) the day stated in the application as the first day of the leave; or (ii) the placement date; and (b) must not extend beyond the first anniversary of the placement date; and (c) must not overlap with the employee’s spouse’s leave, other than short adoption leave, stated in the relevant statutory declaration; and (d) must be for a continuous period of not more than the period of entitlement calculated under subsection (3).

s 4 10 s 4 Industrial Relations Amendment (No. 1) No. 389, 1994 ‘ (3) The period of entitlement, for Division 1 long adoption leave, is 52 weeks less the total of all the following— (a) short adoption leave the employee notifies the employer the employee intends to apply for; (b) annual or long service leave the employee applies for instead of, or in conjunction with, long adoption leave; (c) the employee’s spouse’s leave stated in the relevant statutory declaration. ˙ ‘ Entitlement reduced by other adoption leave available to employee ‘ 3.81(1) In this section— “alternative leave” means leave, other than leave under this Division, that— (a) an employee is entitled to, has applied for or has been given in connection with the child’s adoption; and (b) is analogous to Division 1 adoption leave, or would be analogous except that— (i) it is paid leave; or (ii) different rules govern eligibility for it; or (iii) it can be taken for a different period. Example of ways an employee may be entitled to leave other than under this Division — Under another Commonwealth or State law, or an award, order or agreement. “unadjusted adoption leave” means the Division 1 adoption leave this Division would, apart from this section, require the employer to give the employee. ‘ (2) This section applies if, had this Division not been made— (a) an employee could have applied for alternative leave, whether or not the employee has in fact applied; and (b) if the employee had applied under the rules governing the alternative leave, the employee would have a legally enforceable right to the leave.

s 4 11 s 4 Industrial Relations Amendment (No. 1) No. 389, 1994 ‘ (3) If the alternative leave period is at least as long as the unadjusted adoption leave period, the employer must not give the employee adoption leave under this Division. ‘ (4) Otherwise, the employer must, on the employee’s application, give the employee, instead of the unadjusted adoption leave, adoption leave that— (a) equals the difference between the unadjusted adoption leave period and the alternative leave period; and (b) begins immediately after the alternative leave (if the employer gives the alternative leave); and (c) otherwise accords with the employee’s entitlements under section 3.80 (Period of adoption leave). ˙ ‘ Annual leave or long service leave taken instead of, or in conjunction with, adoption leave ‘ 3.82 If an employee applies for annual leave or long service leave instead of, or in conjunction with, adoption leave, the employer must give the annual or long service leave if— (a) had this Division not been made, the employer would have been required to give it; or (b) the total of the following is not more than 52 weeks— (i) the annual or long service leave; (ii) annual or long service leave the employer has already given the employee instead of, or in conjunction with, the adoption leave; (iii) adoption leave the employer has already given the employee for the placement; (iv) the employee’s spouse’s leave stated in the relevant statutory declaration. ˙ ‘ Extending adoption leave ‘ 3.83(1) An employee may apply to extend the Division 1 long adoption

s 4 12 s 4 Industrial Relations Amendment (No. 1) No. 389, 1994 leave given to the employee. ‘ (2) The employer must give the leave if— (a) the application is given to the employer at least 14 days before the last day of the leave; and (b) the application states the first and last day of the extended leave; and (c) unless the things mentioned in section 3.79(1)(f)(iii) 3 are still as stated in the relevant statutory declaration—the employee submits a statutory declaration stating the things mentioned in the subparagraph with the application; and (d) the period of leave, if extended, would not be more than the period of entitlement under section 3.80(3), calculated as at the time of giving the leave. ‘ (3) The adoption leave may be extended again only by agreement between the employer and the employee. ˙ ‘ Shortening adoption leave ‘ 3.84(1) An employee may apply to shorten the Division 1 adoption leave given to the employee. ‘ (2) The employer may shorten the leave if the application states the last day of the shortened leave. ˙ ‘ Cancellation of adoption leave if employee does not finish 1 year of continuous service ‘ 3.85 The employer may cancel Division 1 adoption leave if— (a) it has been given on the basis that it is reasonable to expect the employee will finish a period of at least 1 year of continuous 3 Section 3.79(1)(f)(iii) requires the employee, in the statutory declaration submitted with the employee’s application for adoption leave, to state the first and last days of leave for which the employee’s spouse has applied, or intends to apply.

s 4 13 s 4 Industrial Relations Amendment (No. 1) No. 389, 1994 service with the employer on a particular day; and (b) the employee does not finish the period on the day. ˙ ‘ Cancellation of adoption leave in other circumstances ‘ 3.86 The employer may also cancel Division 1 adoption leave if— (a) the child will not be under 5 years on the placement day; or (b) the child had, at the placement date, previously lived with the employee for a continuous period of 6 months or more; or (c) the child is a child or stepchild of the employee or the employee’s spouse. ˙ ‘ Effect on adoption leave if placement does not happen ‘ 3.87(1) An employer may cancel Division 1 adoption leave given to an employee if the placement— (a) does not happen; or (b) happens but does not continue. ‘ (2) If an event mentioned in subsection (1) happens before the leave begins, the employer may cancel the leave before it begins. ‘ (3) If the leave has begun, the employee may notify the employer that the employee wishes to return to work. ‘ (4) If the employee does so, the employer must notify the employee of the day when the employee must return to work. ‘ (5) The day must be within 4 weeks after the employer receives the notice. ‘ (6) Also, despite subsections (3) to (5), if the leave has begun, the employer may notify the employee of the day when the employee must return to work. ‘ (7) The day must be at least 4 weeks after the employer gives the notice. ‘ (8) If the employee returns to work, the employer must cancel the rest of the leave.

s 4 14 s 4 Industrial Relations Amendment (No. 1) No. 389, 1994 ˙ ‘ What happens if employee ceases to be the primary caregiver ‘ 3.88(1) This section applies if— (a) for a substantial period of an employee’s Division 1 long adoption leave, the employee is not the child’s primary caregiver; and (b) having regard to the length of the period and other relevant circumstances, it is reasonable to expect the employee will not again become the child’s primary caregiver within a reasonable period. ‘ (2) The employer may notify the employee of the day when the employee must return to work. ‘ (3) The day must be at least 4 weeks after the employer gives the notice. ‘ (4) If the employee returns to work, the employer must cancel the rest of the leave. ˙ ‘ Employee’s duty if excessive leave given or if periods of long adoption leave overlap ‘ 3.89(1) This section applies if— (a) the total of all the following is more than 52 weeks— (i) adoption leave given to the employee for the placement; (ii) annual or long service leave given to the employee instead of, or in conjunction with, adoption leave; (iii) adoption leave given to the spouse for the placement; (iv) annual or long service leave given to the spouse instead of, or in conjunction with, adoption leave; or (b) leave (other than short adoption leave) given to the employee overlaps with leave given to the spouse. ‘ (2) The employee must give the employer a notice— (a) if subsection (1)(a) applies—stating the amount by which the total exceeds 52 weeks; and (b) if subsection (1)(b) applies—stating the period of overlap; and

s 4 15 s 4 Industrial Relations Amendment (No. 1) No. 389, 1994 (c) suggesting how the employer may change or cancel leave given to the employee (other than leave the employee has already taken) to reduce or remove the excess or overlap; and (d) unless the changes and cancellations suggested will remove the excess or overlap—stating the suggestions the spouse has made or will make under subsection (3)(c). ‘ (3) The spouse must give the spouse’s employer a notice— (a) if subsection (1)(a) applies—stating the amount by which the total exceeds 52 weeks; and (b) if subsection (1)(b) applies—stating the period of overlap; and (c) suggesting how the spouse’s employer may change or cancel leave given to the spouse (other than leave the spouse has already taken) to reduce or remove the excess or overlap; and (d) unless the changes and cancellations suggested will remove the excess or overlap—stating the suggestions the employee has made or will make under subsection (2)(c). ‘ (4) The changes and cancellations suggested must be of a kind that, if they are all made, the excess or overlap will be removed. ‘ (5) An employer who receives a notice under subsection (2) or (3) may change or cancel leave as suggested in the notice, or as agreed with the employee or the spouse. ‘ (6) In this section— “spouse” means the employee’s spouse. ˙ ‘ Employer to warn replacement employee employment is only temporary ‘ 3.90(1) An employer may employ a person (the “replacement employee” ) to replace an employee— (a) while the employee is on adoption leave; or (b) who, while another employee is on adoption leave, must perform the duties of the position held by the other employee. ‘ (2) However, before employing the replacement employee, the

s 4 16 s 4 Industrial Relations Amendment (No. 1) No. 389, 1994 employer must inform the person— (a) the person’s employment is only temporary; and (b) about the rights of the employee who is on adoption leave. ˙ ‘ Return to work after adoption leave ‘ 3.91(1) This section applies if an employee returns to work after Division 1 adoption leave. ‘ (2) The employer must employ the employee in the position the employee held immediately before the leave. ‘ (3) However, if— (a) the position no longer exists; and (b) the employee is qualified for, and can perform the duties of, other positions in the employer’s employment; the employer must employ the employee in whichever of the other positions is nearest in status and remuneration to the employee’s former position. ˙ ‘ Adoption leave and continuity of service ‘ 3.92 A period of adoption leave does not break an employee’s continuity of service, but does not count as service other than— (a) to work out the employee’s entitlement to a later period of adoption leave or other parental leave; or (b) as expressly provided in the Act, or in an award, industrial agreement, certified agreement, enterprise flexibility agreement or court order. ‘ Division 2—Dismissal ˙ ‘ Interpretation ‘ 3.93(1) In this Division—

s 4 17 s 4 Industrial Relations Amendment (No. 1) No. 389, 1994 “authorised leave” means leave authorised by— (a) the employer; or (b) an award, industrial agreement, certified agreement, enterprise flexibility agreement or order of a court or tribunal having power to fix wages and other employment conditions; or (c) the employee’s employment contract; or (d) a Commonwealth or State law. ‘ (2) If an expression used in this Division is also used in the Termination of Employment Convention, it has the same meaning as in the Convention. ˙ ‘ Certain employees excluded from operation of Pt 12, Div 5, Sdiv 3 of the Act (s 290(3) of the Act) ‘ 3.94(1) Part 12, Division 5, Subdivision 3 of the Act does not apply to a short term casual employee. ‘ (2) In this section— “short term casual employee” means a casual employee other than a casual employee who— (a) is engaged— (i) by a particular employer on a regular and systematic basis; and (ii) for several periods of employment during a period of at least 6 months; and (b) apart from the employer’s decision not to offer the person further employment, had a reasonable expectation of further employment by the employer. ˙ ‘ Matters to be disregarded when calculating continuous service ‘ 3.95(1) Under section 293(3) of the Act, the following things do not break an employee’s continuity of service with the employer— (a) a suspension, stand down or other interruption, or termination of the employee’s employment, by the employer, to avoid the

s 4 18 s 4 Industrial Relations Amendment (No. 1) No. 389, 1994 employer’s obligations under section 293 (Notice of dismissal or compensation to be given) of the Act; (b) an absence from work by the employee on authorised leave; (c) an absence from work by the employee, if there was a reasonable cause for the absence, including, for example, because of an illness or injury; (d) an absence from work by the employee because of protected action under section 203 (Protected action for which immunity is provided) of the Act that has not involved or is not likely to involve— (i) unlawful personal injury; or (ii) wilful destruction of, or damage to, property; or (iii) taking, keeping or using property; (e) an absence from work by the employee because of industrial action to which section 602(1) of the Act applies 4 ; (f) another absence from work by the employee, unless the employer gives the employee a notice under subsection (4). ‘ (2) An employee’s absence from work in the circumstances mentioned in subsection (1)(c) does break the continuity of service unless— (a) if a decision applies to the employee—the employee complies with the decision requiring the employee to— (i) notify the employer of an absence from work; and (ii) substantiate the reason for the absence; or (b) if a decision does not apply to the employee—the employee informs the employer within 24 hours after the beginning of the absence, or within a longer period if it is reasonable in the circumstances, of— (i) the employee’s absence from work; and (ii) the reason for the absence; and 4 The subsection applies to certain industrial action about industrial disputes. However, it does not apply in certain circumstances stated in the section.

s 5 19 s 5 Industrial Relations Amendment (No. 1) No. 389, 1994 (iii) the likely duration of the absence. ‘ (3) An employee’s absence from work in the circumstances mentioned in subsections (1)(d) and (e) does break the continuity of service if the Commission has decided, when working out the employee’s entitlement to notice of dismissal or to compensation instead of notice, the absence must be taken to be a break in the employee’s continuity of service. ‘ (4) Under subsection (1)(f), the employer may give the employee notice that the absence from work breaks the employee’s continuity of service with the employer. ‘ (5) A notice under subsection (4)— (a) must be given during, or within 14 days after the end of, the period of absence; and (b) may be withdrawn by the employer. ‘ (6) If the employer withdraws the notice, it is taken not to have been given. ‘ (7) If an employee’s absence from work does not break the employee’s continuity of service under this section, the period of absence must be included as a period of service when calculating the employee’s continuous service.’. ˙ Amendment of Pt 4 (Miscellaneous) 5.(1) Part 4, sections 4.1 to 4.4— renumber as sections 4.4 to 4.7. (2) In Part 4, before section 4.4 (as renumbered)— insert — ‘ Steps to remedy deficiency in awards or industrial agreements ‘ 4.1(1) Under section 150(2) of the Act, the Commission must take the steps specified in this section to remedy a deficiency found by it in an award or industrial agreement. ‘ (2) The Commission must record its reasons for deciding a deficiency exists. ‘ (3) Before making a decision about remedying the deficiency, the

s 5 20 s 5 Industrial Relations Amendment (No. 1) No. 389, 1994 Commission must give an opportunity to be heard to— (a) a party to the award or industrial agreement who has a genuine interest in the matter; and (b) if the Commission considers the award or industrial agreement contains a discriminatory provision—the Anti–Discrimination Commissioner under the Anti–Discrimination Act 1991 ; and (c) a person who, under a direction given under section 94(b)(v) 5 of the Act, may be heard in the proceedings. ‘ (4) The Commission must remedy the deficiency by— (a) varying the award or industrial agreement; or (b) taking other action the Commission considers appropriate about the award or industrial agreement. ‘ (5) When deciding how to remedy a deficiency mentioned in section 150(2)(a)(ii) or (iv) 6 or 150(2)(b)(i) 7 of the Act, the Commission must consider whether— (a) the provision containing the deficiency should be omitted from the award or industrial agreement; and (b) if the provision is in an award—the provision should be amended or included in an agreement between the parties; and (c) if the provision is in an industrial agreement—the provision should be amended. ‘ (6) If the Commission considers it appropriate in the circumstances, it may— 5 Section 94(b)(v) provides that, in certain circumstances, the Industrial Court, Industrial Commission or Industrial Registrar may direct who may be heard in a proceeding. 6 The deficiencies mentioned are obsolete or dated provisions and the prescription of matters in unnecessary detail. 7 The deficiency mentioned is that the award’s terms are no longer appropriate having regard to the Commission’s function to ensure the system of awards provides for secure, relevant and consistent wages and employment conditions.

s 6 21 s 7 Industrial Relations Amendment (No. 1) No. 389, 1994 (a) remedy a deficiency in stages, or over a period; or (b) allow the parties to remedy the deficiency in a way agreed by them. ‘Way Commission must notify industrial organisation of application ‘ 4.2 Under sections 159 and 179 of the Act, the Commission must notify each industrial organisation entitled to be heard in the form prescribed under the Industrial Court Rules 1990 . ‘ Way proposed amalgamated organisation’s members may object to ballot exemption ‘ 4.3 Under section 417(3) of the Act, an objection must be made to the Commission in the form prescribed under the Industrial Court Rules 1990 .’. ˙ Numbering and renumbering of regulation 6. In the next reprint of the regulation under the ReprintsAct1992 , section 43 (Numbering and renumbering of provisions) of the Reprints Act1992 must be used. ˙ Expiry 7. This regulation expires on the day after the publication of the reprint mentioned in section 6. ENDNOTES 1. Made by the Governor in Council on 3 November 1994. 2. Notified in the Gazette on 4 November 1994. 3. Laid before the Legislative Assembly on . . . 4. The administering agency is the Department of Employment, Vocational Education, Training and Industrial Relations. © State of Queensland 1994