Industrial Relations Reform Act 1993 (Cth)
PART 1—PRELIMINARY
Section
1. Short title
2. Commencement
PART 2—OBJECTS
3. Principal Act
4. Substitution of section:
3. Objects of Act
PART 3—THE AWARD SYSTEM
5. Principal Act
6. Interpretation
7. Insertion of new Division:
88A. Objects of Part
8. General functions of Commission
TABLE OF PROVISIONS—
Section
9. Commission to take into account the public interest
10. Insertion of new section:
90AA. Performance of Commission’s functions under this Part and Part VIC
11. Repeal of section and substitution of new section:
93A. Commission to take account of Family Responsibilities Convention
12. Particular powers of Commission
13. Repeal of limitation on Commission’s power to remove sex discrimination
14. Power to set aside or vary awards
15. Insertion of new sections:
113A. Commission to include enterprise flexibility provisions in awards
113B. Variation of award to give effect to agreement negotiated under enterprise flexibility provision
16. Making and publication of awards etc.
17. Insertion of new section:
150A. Commission to review awards
PART 4—MINIMUM ENTITLEMENTS OF EMPLOYEES
18. Principal Act
19. Interpretation
20. Appeals to Full Bench
21. Insertion of new Part:
PART VIA—MINIMUM ENTITLEMENTS OF EMPLOYEES
170AA. Object
170AB. Meaning of expressions
170AC. Orders
170AD. Orders only on application
170AE. When Commission must make order
170AF. Matters relevant to the level of minimum wages
170AG. Division not to limit other rights
170AH. Additional effect of Division
170BA. Object
170BB. Equal remuneration for work of equal value
170BC. Orders requiring equal remuneration
170BD. Orders only on application
170BE. No order if adequate alternative remedy exists
170BF. Immediate or progressive introduction of equal remuneration
170BG. Employer not to reduce remuneration
170BH. Division not to limit other rights
170BI. Additional effect of Division
TABLE OF PROVISIONS—
Section
170CA. Object
170CB. Interpretation
170CC. Regulations may exclude employees as permitted by Convention
170DA. Commencement of Subdivision
170DB. Employee to be given notice of termination
170DC. Employee to have opportunity to respond to allegations
170DD. Employer to notify CES of proposed terminations in certain cases
170DE. Harsh, unjust or unreasonable termination
170DF. Employer not to terminate on certain grounds
170DG. Employer not to contravene Commission order about employment termination
170EA. Application to Court in respect of termination of employment
170EB. Court must decline jurisdiction if adequate alternative remedy exists
170EC. Court to refer matter to Commission for conciliation
170ED. Commission to conciliate
170EE. Remedies the Court may grant
170EF. Penalty for contravening section 170DD
170EG. Contravention of Subdivision B not an offence
170EH. Injunction under section 431 not available
170FA. Employment termination orders creating rules of general application
170FB. Orders only on application
170FC. No order if adequate alternative exists
170FD. Powers and procedures of Commission for dealing with applications
170FE. Commission’s powers not limited by Subdivision E
170GA. Orders by Commission where employer fails to consult trade union about terminations 170GB. Orders only on application
170GC. No order if adequate alternative remedy exists
170GD. Powers and procedures of Commission for dealing with applications
170HA. Inconsistent awards and orders 170HB. Division not to limit other rights
170JA. Orders to be in writing
170JB. When orders take effect
170JC. Compliance with orders
170JD. Variation and revocation of orders
TABLE OF PROVISIONS—
Section
170JE. Application of sections 109, 110, 111, 128 and 129 to orders and proceedings under this Part
170JF. Appeals to Full Bench
170JG. Inconsistency with awards or other orders of Commission
170JH. Validity of State laws, awards etc.
170KA. Effect of Division
170KB. Application of Schedule 14
170KC. Regulations may prescribe adoption leave
170KAA. Commission to consider and make recommendations about carer’s leave
22. Application of penalty
23. Enforcement of penalties etc.
24. Addition of Schedules
PART 5—PROMOTING BARGAINING AND FACILITATING AGREEMENTS
25. Principal Act
26. Interpretation
27. Repeal of section and substitution of new section:
95. No automatic flow-on of terms of certain awards and agreements
28. Power to grant preference to members of organisations etc.
29. Repeal of section and substitution of new section:
145. Date of awards
30. Persons bound by awards
31. Insertion of new Part:
PART VIB—PROMOTING BARGAINING AND FACILITATING AGREEMENTS
170LA. Objects
170LB. Definitions
170LC. Meaning of ‘enterprise’
170MA. Certified agreements
170MB. Organisations entitled to be heard
170MC. Certification of agreements
170MD. When Commission to refuse to certify agreements
170ME. How agreement may provide for its variation
170MF. Other options open to Commission instead of refusing to certify agreement
170MG. Commission to protect interests of certain employees
170MH. Procedures for preventing and settling disputes
170MI. Operation of certified agreements
170MJ. Extension of certified agreements
170MK. Effect of certified agreements
TABLE OF PROVISIONS—
Section
170ML. Variation of certified agreement as provided in the agreement
170MM. Certified agreements may be varied or terminated by Full Bench
170MN. Certified agreements may be terminated by parties
170NA. When employer may apply for approval of implementation of agreement
170NB. Organisations entitled to be heard
170NC. Approval of implementation of agreement
170ND. When Commission to refuse to approve implementation of agreements
170NE. How agreement may provide for its variation
170NF. Other options open to Commission
170NG. Commission to protect interests of certain employees
170NH. Commission to determine how enterprise flexibility agreements to be published
170NI. Procedures for preventing and settling disputes
170NJ. Operation of enterprise flexibility agreements
170NK. Extension of enterprise flexibility agreements
170NL. Effect of enterprise flexibility agreements
170NM. Variation of enterprise flexibility agreement as provided in the agreement
170NN. Enterprise flexibility agreements may be varied or terminated by Full Bench
170NO. Enterprise flexibility agreements may be terminated by consent
170NP. Eligible union may agree to be bound by enterprise flexibility agreement
170PA. Object of Division
170PB. Joint employers
170PC. Application of Division
170PD. Initiation of bargaining period
170PE. Particulars to accompany notice
170PF. When bargaining period begins
170PG. Protected action
170PH. 72 hours’ notice of action to be given
170PI. Negotiation must precede industrial action or lockout
170PJ. What happens if Commission orders a ballot
170PK. Industrial action must be duly authorised
170PL. What happens if application to certify agreement is not made within 21 days
170PM. Immunity provisions
170PN. When bargaining period ends
170PO. Power of Commission to suspend or terminate bargaining period
170PP. What happens if Commission terminates a bargaining period under paragraph 170PO(1)(b)
170QA. Bargaining Division of Commission
170QB. Role of the Bargaining Division
TABLE OF PROVISIONS
Section
170QC. Assignment of Commission members to the Bargaining Division
170QD. Exercise of Bargaining Division’s functions and powers by other Commission members
170QE. Composition of Full Bench established to perform or exercise any of the Bargaining Division’s functions and powers
170QF. Organisation of the Bargaining Division’s work
170QG. Assignment of other work to Bargaining Division
170QH. Commission may conciliate in relation to certain proposed agreements under this Part
170QI. Directions and orders to overcome procedural difficulties
170QJ. Application of Part VI to conciliation under this Division
170QK. Commission orders in relation to negotiations for agreements under this Part
170RA. Employer not to discriminate between unionists and non-unionists when negotiating agreement under this Part
170RB. Representation of employees by union officials in negotiations for agreements under Division 3
170RC. Annual report about developments in bargaining at the enterprise and workplace levels
PART VIC—PAID RATES AWARDS
170SA. Objects
170TA. Paid rates functions and powers
170TB. Certain disputes to be referred to Bargaining Division
170TC. Certain disputes to be referred back to relevant Presidential Member
170UA. Commission to consider whether paid rates dispute should be settled by an agreement under Part VIB
170UB. Making or varying paid rates awards
170UC. Commission to maintain existing paid rates awards
170UD. Party acting inconsistently with award’s status as a paid rates award
170UE. Paid rates awards to be identified as such
32. Imposition and recovery of penalties
33. Certain offences in relation to members of organisations etc.
34. Consequential amendments
35. Transitional: certified agreements
PART 6—SECONDARY BOYCOTTS
36. Principal Act
37. Interpretation
38. Repeal of Division and substitution of new Division:
TABLE OF PROVISIONS—
Section
156. Definitions
157. Engaging in conduct
158. Acquisition or supply of goods or services
159. Application of Division to Commonwealth and Commonwealth authorities
160. Additional operation of provision prohibiting boycotts
161. Additional operation of provision prohibiting boycotting agreements
162. Boycotts
162A. Exemption of peaceful picketing
163. Boycotting agreements
163A. Notification of boycott disputes
163B. Commission to act quickly
163C. Parties to proceedings under Division
163D. Certificates by Commission
163E. Application of other provisions of Act
163F. Criminal proceedings not to be brought for boycott conduct
163G. Injunctions
163H. Actions for damages
163J. Findings admissible in other proceedings
163K. Conduct on behalf of an organisation of employees
163L. Conduct by directors, servants or agents of body corporate
163M. Conduct by servants or agents of an individual
163N. Matters to be taken into account in boycott proceedings
163P. Jurisdiction of the Court
163Q. Costs
39. Repeal of section and substitution of new section:
164. Certain actions not to lie under other laws in relation to boycott conduct
40. Insertion of new section:
166A. Restriction on certain actions in tort
41. Repeal of sections 311 and 312
Division 2 —Amendments of the Trade Practices Act 1974 42. Principal Act
43. Repeal of section and substitution of new section:
45D. Boycotts
44. Prohibition of contracts, arrangements or understandings affecting supply or acquisition of goods or services
45. Exceptions
TABLE OF PROVISIONS—
Section
46. Pecuniary penalties
47. Stay of injunctions
48. Consequential amendments
49. Principal Act
50. Interpretation and application
51. Additional jurisdiction of certain courts
52. Principal Act
53. Officers taking part in strikes against Government
54. Proceedings and orders under the Trade Practices Act
PART 7—INDUSTRIAL RELATIONS COURT OF AUSTRALIA
55. Principal Act
56. Addition of new Part:
PART XIV—INDUSTRIAL RELATIONS COURT OF AUSTRALIA
360. Definitions
361. Creation of Court
362. Appointment, removal and resignation of Judges
363. Acting Chief Justice
364. Seniority
365. Salary and allowances of Judges
366. Salary and allowances of Judges who hold other judicial appointments
367. Payment of salary and allowance
368. Oath or affirmation of office
369. Place of sitting
370. How Court may be constituted
371. Arrangement of business of Court
372. Court divided in opinion
373. Exercise of jurisdiction in open court and in Chambers
374. Powers of Court to extend to whole of Australia
375. Judicial Registrars
376. Powers of Judicial Registrars
377. Review of decisions of Judicial Registrars
378. Exercise by Court of delegated powers
379. Independence of Judicial Registrars
380. Judicial Registrars hold office on full-time or part-time basis
381. Qualifications for appointment etc.
TABLE OF PROVISIONS—
Section
382. Term of office
383. Remuneration and allowances
384. Leave of absence
385. Resignation
386. Termination of appointment
387. Oath or affirmation of office
388. Other terms and conditions of appointment
389. Management of administrative affairs of Court
390. Registrar
391. Appointment of Registrar
392. Powers of Registrar
393. Remuneration of Registrar
394. Terms and conditions of appointment of Registrar
395. Leave of absence
396. Resignation
397. Outside employment of Registrar
398. Termination of appointment
399. Disclosure of interests by Registrar
400. Acting Registrar
401. Personnel other than the Registrar
402. Sheriff
403. Powers of Registrar regarding Court officers and Registry staff
404. Engagement of consultants etc.
405. Annual report
406. Proper accounts to be kept
407. Audit
408. Delegation of administrative powers of Chief Justice
409. Proceedings arising out of administration of Court
410. Oath or affirmation of office
411. Arrangements with other courts to perform functions
412. Jurisdiction of court
413. Interpretation of awards
414. Exclusive jurisdiction
415. Exercise of Court’s original jurisdiction
416. Reference of proceedings to Full Court
417. Declarations of right
418. Determination of matter completely and finally
419. Making of orders and issue of writs
TABLE OF PROVISIONS
Section
420. Appellate jurisdiction
421. Limitation on appeals to Full Court
422. Appeals from State and Territory courts
423. Exercise of appellate jurisdiction
424. Cases stated and questions reserved
425. Evidence on appeal
426. Form of judgment on appeal
427. Stay of proceedings and suspension of orders
428. New trials
429. Contempt of Court
430. Jurisdiction in associated matters
431. Injunctions against contravening Act etc.
432. Limitations on appeals from Court to High Court
433. Interpretation
434. Application
435. Commencement of proceeding
436. Standing
437. Is consent required to be a group member?
438. Persons under disability
439. Originating process
440. Right of group member to opt out
441. Causes of action accruing after commencement of representative proceeding
442. Situation if fewer than 7 group members
443. Cost of distributing money etc. excessive
444. Order that proceeding not continue as representative proceeding if costs excessive etc.
445. Consequences of order that proceeding not continue under this Division
446. Determination of issues if not all issues are common
447. Individual issues
448. Directions relating to commencement of further proceedings
449. Adequacy of representation
450. Stay of execution in certain circumstances
451. Settlement and discontinuance—representative proceeding
452. Settlement of individual claim of representative party
453. Notice to be given of certain matters
454. Notices—ancillary provisions
455. Judgment—powers of the Court
TABLE OF PROVISIONS—
Section
456. Constitution etc. of fund
457. Effect of judgment
458. Appeals to the Court
459. Appeals to the High Court—extended operation of sections 458 and 461
460. Suspension of limitation periods
461. General power of Court to make orders
462. Saving of rights, powers etc.
463. Reimbursement of representative party’s costs
464. Registries
465. Officers of Court
466. Powers of Registrars
467. Seal of Court
468. Writs etc.
469. Representation of parties before Court
470. Intervention generally
471. Particular rights of intervention of Minister
472. Practice and procedure
473. Form of oath or affirmation
474. Oaths and affirmations
475. Swearing of affidavits
476. Orders and commissions for examination of witnesses
477. Oral and affidavit evidence
478. Change of venue
479. Reserved judgments
480. Prohibition of publication of evidence etc.
481. Formal defects not to invalidate
482. Interest up to judgment
483. Interest on judgment
484. Enforcement of judgment
485. Offences by witnesses
486. Rules of Court
487. Regulations relating to fees
57. Principal Act
58. Interpretation
59. Repeal of Part III
60. Interest on judgment
61. Definitions
TABLE OF PROVISIONS—
Section
62. Consequential amendments
63. Interpretation
64. Transfer of proceedings from Federal Court to new Court
65. Federal Court to determine part-heard proceedings
66. Provisions about transferred proceedings
67. New Court may enforce certain orders of Federal Court
PART 8—MISCELLANEOUS
68. Principal Act
69. Insertion of new section:
7A. Act not to apply so as to exceed Commonwealth power
70. Organisation coverage
71. Unfair contracts with independent contractors: Court’s powers
72. Court may make orders about unfair contracts
73. Repeal of section and substitution of new section:
133. Industry consultative councils
74. Insertion of new Division:
187A. Objects of Part
75. Criteria for registration
76. Repeal of sections 193 and 193A
77. Change of name or alteration of eligibility rules of organisation
78. Resignation from membership
79. Cancellation of registration on technical grounds etc.
80. Insertion of new section:
334A. Employees not to be dismissed etc. for engaging in industrial action
SCHEDULE 1
SCHEDULES TO BE ADDED AT THE END OF THE PRINCIPAL ACT
SCHEDULE 2
AMENDMENTS OF THE INDUSTRIAL RELATIONS ACT 1988
CONSEQUENT ON PART 5 OF THIS ACT
SCHEDULE 3
CONSEQUENTIAL AMENDMENTS OF THE TRADE PRACTICES ACT
1974
SCHEDULE 4
CONSEQUENTIAL AMENDMENTS OF OTHER ACTS
[
The Parliament of Australia enacts:
1. This Act may be cited as theIndustrial Relations Reform Act 1993.
3. In this Part,“Principal Act” means theIndustrial Relations Act 1988 1 .
“3. The principal object of this Act is to provide a framework for the prevention and settlement of industrial disputes which promotes the economic prosperity and welfare of the people of Australia by:
(a) encouraging and facilitating the making of agreements, between the parties involved in industrial relations, to determine matters pertaining to the relationship between employers and employees, particularly at the workplace or enterprise level; and
(b) providing the means for:
(i) establishing and maintaining an effective framework for protecting wages and conditions of employment through awards; and
(ii) ensuring that labour standards meet Australia’s international obligations; and
(c) providing a framework of rights and responsibilities for the parties involved in industrial relations which encourages fair and effective bargaining and ensures that those parties abide by agreements between them; and
(d) enabling the Commission to prevent and settle industrial disputes:
(i) so far as possible, by conciliation; and
(ii) where necessary, by arbitration; and
(e) encouraging the organisation of representative bodies of employers and employees and their registration under this Act; and
(f) encouraging and facilitating the development of organisations, particularly by reducing the number of organisations in an industry or enterprise; and
(g) helping to prevent and eliminate discrimination on the basis of race, colour, sex, sexual preference, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin.”.
5. In this Part,“Principal Act” means theIndustrial Relations Act 1988 1 .
“
“
“88A. The objects of this Part are to ensure that:
(a) employees are protected by awards that set fair and enforceable minimum wages and conditions of employment that are maintained at a relevant level; and
(b) awards (other than paid rates awards) act as a safety net of minimum wages and conditions of employment underpinning direct bargaining; and
(c) awards are suited to the efficient performance of work according to the needs of particular industries and enterprises, while employees’ interests are also properly taken into account; and
(d) regard is had, in connection with making, reviewing and varying awards, to stable and appropriate relativities based on skill, responsibility and the conditions under which work is performed, and on the need for skill-based career paths; and
(e) the Commission’s functions and powers in relation to making and varying awards are performed and exercised in a way that both:
(i) gives employees prompt access to fair and enforceable minimum wages and conditions of employment, so far as they do not already have them; and
(ii) encourages the prevention and settlement of industrial disputes by the making of agreements under Part VIB.”.
“(a) to prevent and settle industrial disputes:
(i) so far as possible, by conciliation; and
(ii) where necessary, by arbitration; and”.
10. After section 90 of the Principal Act the following section is inserted:
“90AA.(1) The Commission must perform its functions under this Part and Part VIC in a way that furthers the objects of this Act and, in particular, the objects of this Part and Part VIC.
“(2) In performing those functions, the Commission must:
(a) ensure, so far as it can, that the system of awards provides for secure, relevant and consistent wages and conditions of employment; and
(b) have proper regard to the interests of the parties immediately concerned and of the Australian community as a whole.
“(3) Changes that are needed to maintain wages and conditions of employment at a relevant level:
(a) may be implemented in stages, so that consistency is achieved over a period; and
(b) may be made subject to compliance by relevant parties with principles established by the Commission.
“(4) Subsection (3) is enacted to avoid doubt.”.
“93A. In performing its functions, the Commission must take account of the principles embodied in the Family Responsibilities Convention, in particular those relating to:
(a) preventing discrimination against workers who have family responsibilities; or
(b) helping workers to reconcile their employment and family responsibilities.”.
12. Section 111 of the Principal Act is amended:
(a) by inserting after subsection (1) the following subsection:“(1AA) The Commission must not, in relation to an industrial dispute, dismiss or refrain as mentioned in paragraph (1)(g) because of subparagraph (1)(g) (i), (ii) or (iii) unless it has made a determination and findings under section 101 in relation to the dispute.”;
(b) by inserting after subsection (1C) the following subsections:“(1D) The Commission must decide as quickly as it can whether to make an interim award if it considers that:
(a) such an award may be necessary to protect for an interim period the wages and conditions of employment of the employees whom it would cover; or
(b) making such an award will facilitate the certifying under Division 2 of Part VIB of an agreement covering employees who are not already covered by an award; or
(c) making such an award will facilitate the approval under Division 3 of Part VIB of an agreement covering employees who are not already covered by an award.
“(1E) Subsection (1D) does not limit:
(a) the cases where the Commission may decide to make an interim award; or
(b) the matters to which the Commission may have regard in deciding whether to make such an award.
“(1F) Paragraph (1D)(b) does not affect the Commission’s duty to consider whether to dismiss or refrain, as mentioned in paragraph (1)(g), because of subparagraph (1)(g)(ii).
“(1G) In determining an application for the Commission to dismiss or refrain as mentioned in paragraph (1)(g) because of subparagraph (1)(g)(ii) or (iii), the Commission must give particular weight to the benefits of not disturbing a particular employment agreement (as defined in subsection (1A)) if the application is made on the ground, or on grounds including the ground, that:
(a) the matter or part, or the industrial dispute or part, concerns terms and conditions of employment of a particular kind and application; and
(b) terms and conditions of that kind and application are regulated by the employment agreement; and
(c) a State industrial authority could have prevented the employment agreement from coming into force if the authority had considered that:
(i) the agreement would result in the reduction of any entitlements or protections of employees under:
(A) a State award; or
(B) any law of the State that the authority thought relevant; and
(ii) in the context of those employees’ terms and conditions considered as a whole, the reduction would be contrary to the public interest.
“(1H) Subsection (1G) does not limit the matters to which the Commission may have regard in considering whether to dismiss or refrain as mentioned in paragraph (1)(g).”.
(c) by inserting in subsection (2) “(except subsection (1AA))” after “section”.
13. Subsection 113(2B) of the Principal Act is repealed.
“(4A) The Commission may refrain from hearing, further hearing, or determining, as the case requires, an application for variation of an award for so long as:
(a) it considers that, in all the circumstances, the parties concerned should try to negotiate an agreement under Part VIB to deal with the subject matter of the proposed variation; and
(b) it is not satisfied that there is no reasonable prospect of the parties making such an agreement.”.
“113A. So far as the Commission considers appropriate, an award must establish a process for agreements to be negotiated, at the enterprise or workplace level, about how the award (as it applies to the enterprise or workplace concerned) should be varied so as to make the enterprise or workplace operate more efficiently according to its particular needs.
“113B.(1) This section applies if an application is made for variation of an award, as it applies to an enterprise or workplace, for the purpose of giving effect to an agreement made under a provision included in the award under section 113A.
“(2) The Commission does not have power to vary the award for that purpose unless it is satisfied that the variation would not, in relation to their terms and conditions of employment, disadvantage the employees who would be affected by the variation.
“(3) For the purposes of subsection (2), a variation of an award is taken to disadvantage employees in relation to their terms and conditions of employment only if:
(a) it would result in the reduction of any entitlements or protections of those employees under:
(i) that or any other award; or
(ii) any other law of the Commonwealth or of a State or Territory that the Commission thinks relevant; and
(b) in the context of their terms and conditions of employment considered as a whole, the Commission considers that the reduction is contrary to the public interest.
“(4) Each organisation of employees that is a party to the award is entitled to be heard on the application.
“(5) However, the Commission must not refuse to vary the award merely because an organisation refuses to agree or consent to the variation, if the Commission is satisfied that the refusal is unreasonable.”.
“(2A) The Commission must ensure that a decision or determination covered by subsection (1) or (2) (except a certified agreement or enterprise flexibility agreement):
(a) is expressed in plain English; and
(b) is structured in a way that is as easy to understand as the subject matter allows.”.
“150A.(1) Each award in force (other than a certified agreement or enterprise flexibility agreement) must be reviewed by the Commission for the purposes of this section:
(a) if the award was in force at the commencement of this section—within 3 years after that commencement; and
(b) otherwise—within 3 years after the award was made; and
(c) in any case—within 3 years after the award was last reviewed for those purposes.
“(2) If, after reviewing an award for the purposes of this section, the Commission considers that the award is deficient in any of these respects:
(a) the terms of the award are no longer appropriate having regard to the Commission’s duty under paragraph 90AA(2)(a) to ensure that the system of awards provides for secure, relevant and consistent wages and conditions of employment;
(b) the award contains a provision which discriminates against an employee because of, or for reasons including, race, colour, sex, sexual preference, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin;
(c) the award contains obsolete provisions or provisions that need updating;
(d) the award is not expressed in plain English;
(e) the award is not structured in a way that is as easy to understand as the subject matter allows;
(f) the award prescribes matters in unnecessary detail;
the Commission must, in order to remedy the deficiency, take the steps (if any) prescribed by the regulations.
“(3) The steps so prescribed may include varying the award after giving any party to the award who has a genuine interest in the matter an opportunity to be heard.”.
“
(a) the Equal Remuneration Convention; and
(b) the Convention on the Elimination of all Forms of Discrimination against Women, a copy of the English text of which is set out in the Schedule to the
Sex Discrimination Act 1984 ; and(c) the Convention concerning Discrimination in respect of Employment and Occupation, a copy of the English text of which is set out in Schedule 1 to the
Human Rights and Equal Opportunity Commission Act 1986 ; and(d) Articles 3 and 7 of the International Covenant on Economic, Social and Cultural Rights (a copy of the English text of the Preamble, and Parts II and III, of the Covenant is set out in Schedule 8);
20. Section 45 of the Principal Act is amended:
(a) by inserting in paragraph (3)(a) “that is not against an order under Part VIA” after “paragraph (1)(b)”;
(b) by inserting after paragraph (3)(a) the following paragraph:“(aa) in the case of an appeal under paragraph (1)(b) against an order under Part VIA—by a person entitled under section 170JF to institute the appeal;”.
21. After Part VI of the Principal Act the following Part is inserted:
“
“
“170AA. The object of this Division is to give effect, or further effect, to the Minimum Wages Convention.
“170AB. Expressions used in this Division that are also used in the Minimum Wages Convention have the same meanings as in the Convention.
“170AC. Subject to this Part, the Commission may make an order setting:
(a) the same minimum wage for all employees in a group specified in the order; or
(b) different minimum wages for different categories of employees in a group specified in the order.
“170AD. The Commission must not make such an order unless it has received an application for the making of an order under this Division from an employee, or a trade union whose rules entitle it to represent the industrial interests of employees, included in the group to be covered by the order.
“170AE.(1) The Commission must make an order if, and must not make an order unless, it is satisfied:
(a) that the terms of employment of the group of employees to be covered by the order are such that coverage by a system of minimum wages is appropriate; and
(b) at least some of the employees in the group are not ineligible under subsection (3).
“(2) An order must specify, and exclude from the order’s operation, such of the employees in the group covered by the order as are ineligible under subsection (3) when the order is made.
“(3) For the purposes of subsections (1) and (2), an employee is ineligible if, and only if:
(a) minimum wages for the employee, or for employees including him or her, can be set and adjusted from time to time by a State arbitrator; or
(b) minimum wages for the employee, or for employees including him or her, are set by an award within the meaning of this Act; or
(c) there are proceedings under Part VI that relate to setting, or adjusting from time to time, minimum wages for the employee, or for employees including him or her; or
(d) a State employment agreement sets minimum wages for the employee, or for employees including him or her.
“(4) Before deciding what group an order should cover, and whether it is satisfied as mentioned in paragraph (1)(a), the Commission must:
(a) give:
(i) each trade union whose rules entitle it to represent the industrial interests of any of the employees concerned; and
(ii) each organisation or association representing employers of any of those employees;
an opportunity to express their respective views to the Commission; and
(b) take into account the views (if any) expressed to it by any of the bodies referred to in subparagraphs (a)(i) and (ii) of this subsection.
“(5) Before making an order, the Commission must give each of the following an opportunity, as prescribed, to be heard in relation to the making of the order:
(a) the person who applied for the order;
(b) each employer of employees to be covered by the order.
“(6) In this section:
(a) without the agreement of some or all of the employers and employees who would be affected by the arbitration (or their representative bodies); and
(b) whether after exhausting alternative means of settlement or otherwise;
(a) was entered into under a State law; and
(b) sets minimum wages that, if the agreement had not been entered into, could have been set by a State arbitrator by compulsory arbitration; and
(c) prevails over any inconsistent order, award, decision or determination of a State industrial authority; and
(d) during a particular period, but only during that period, prevents those minimum wages from being set or adjusted by a State arbitrator by compulsory arbitration.
“170AF. In setting the level of minimum wages under this Division, the Commission must have regard to the principles it would apply in setting the level of those minimum wages in performing its functions under Part VI, but must also have regard, so far as possible and appropriate in relation to Australian practice and conditions, to:
(a) the needs of workers and their families, taking into account the general level of wages in Australia, the cost of living, social security benefits and the relative living standards of other social groups; and
(b) economic factors, including the requirements of economic development, levels of productivity and the desirability of attaining and maintaining a high level of employment.
“170AG. This Division is not intended to limit any right that a person or trade union may otherwise have to establish minimum wages.
“170AH.(1) Because of this section, this Division has the effect it would have if section 170AA were repealed. That effect is additional to, and does not prejudice, the effect that this Division has otherwise than because of this section.
“(2) The Commission must determine by arbitration an application made under this Division as it has effect because of this section.
“(3) The Commission may make an order under this Division (as it so has effect) only if:
(a) it considers that the order is necessary to prevent an industrial dispute about minimum wages for employees; and
(b) it has given to each organisation or other person who, in its opinion, would be likely to be a party to the dispute an opportunity to be heard in relation to the making of the order.
“(4) An order so made must be expressed to bind only such of the following as the order specifies:
(a) the organisations and other persons to whom the Commisson has given, as required by subsection (3), an opportunity to be heard;
(b) the respective members of those organisations.
“
“170BA. The object of this Division is to give effect, or further effect, to:
(a) the Anti-Discrimination Conventions; and
(b) the Equal Remuneration Recommendation, 1951, which the General Conference of the International Labour Organisation adopted on 29 June 1951 and is also known as Recommendation No. 90, and a copy of the English text of which is set out in Schedule 7; and
(c) the Discrimination (Employment and Occupation) Recommendation, 1958, which the General Conference of the International Labour Organisation adopted on 25 June 1958 and is also known as Recommendation No. 111, and a copy of the English text of which is set out in Schedule 9.
“170BB.(1) A reference in this Division to
“(2) An expression has in subsection (1) the same meaning as in the Equal Remuneration Convention.
Note: Article 1 of the Convention provides that the term ‘equal remuneration for men and women workers for work of equal value’ refers to rates of remuneration established without discrimination based on sex.
“170BC.(1) Subject to this Division, the Commission may make such orders as it considers appropriate to ensure that, for employees covered by the orders, there will be equal remuneration for work of equal value.
“(2) Without limiting subsection (1), an order under this Division may provide for such increases in rates (including minimum rates) of remuneration (within the meaning of the Equal Remuneration Convention) as the Commission considers appropriate to ensure that, for employees covered by the order, there will be equal remuneration for work of equal value.
“(3) However, the Commission may make an order under this Division only if:
(a) the Commission is satisfied that, for the employees to be covered by the order, there is not equal remuneration for work of equal value; and
(b) the order can reasonably be regarded as appropriate and adapted to giving effect to:
(i) one or more of the Anti-Discrimination Conventions; or
(ii) the provisions of the Recommendation referred to in paragraph 170BA(b) or (c).
“170BD. The Commission must only make such an order if it has received an application for the making of an order under this Division from:
(a) an employee, or a trade union whose rules entitle it to represent the industrial interests of employees, to be covered by the order; or
(b) the Sex Discrimination Commissioner.
“170BE. The Commission must refrain from considering the application, or from determining it, if the Commission is satisfied that there is available to the applicant, or to the employees whom the applicant represents, an adequate alternative remedy that:
(a) exists under a law of the Commonwealth (other than this Division) or under a law of a State or Territory; and
(b) will ensure, for the employees concerned, equal remuneration for work of equal value.
“170BF. The order may implement equal remuneration for work of equal value when the order takes effect. However, if it is not deemed feasible to implement it immediately, the order may implement it in stages (as provided in the order).
“170BG.(1) An employer must not reduce an employee’s remuneration (within the meaning of the Equal Remuneration Convention) for the reason, or for reasons including the reason, that an application or order has been made under this Division.
“(2) If subsection (1) is contravened, the purported reduction is of no effect.
“170BH. This Division is not intended to limit any right that a person or trade union may otherwise have to secure equal remuneration for work of equal value.
“170BI.(1) Because of this section, this Division has the effect it would have if section 170BA were repealed and paragraph 170BC(3)(b) were omitted. That effect is additional to, and does not prejudice, the effect that this Division has otherwise than because of this section.
“(2) The Commission must determine by arbitration an application made under this Division as it has effect because of this section.
“(3) The Commission may make an order under this Division (as it so has effect) only if:
(a) it considers that the order is necessary to prevent an industrial dispute about equal remuneration for work of equal value; and
(b) it has given to each organisation or other person who, in its opinion, would be likely to be a party to the dispute an opportunity to be heard in relation to the making of the order.
“(4) An order so made must be expressed to bind only such of the following as the order specifies:
(a) the organisations and other persons to whom the Commission has given, as required by subsection (3), an opportunity to be heard;
(b) the respective members of those organisations.
“
“
“170CA.(1) The object of this Division is to give effect, or give further effect, to:
(a) the Termination of Employment Convention; and
(b) the Termination of Employment Recommendation, 1982, which the General Conference of the International Labour Organisation adopted on 22 June 1982 and is also known as Recommendation No. 166, and a copy of the English text of which is set out in Schedule 11.
“(2) Without limiting subsection (1), the references in paragraph 170DF(1)(f) to sexual preference, age and physical or mental disability, have been included in order to give effect, or further effect, to:
(a) the Convention concerning Discrimination in respect of Employment and Occupation, a copy of the English text of which is set out in Schedule 1 to the
Human Rights and Equal Opportunity Commission Act 1986 ; and(b) the Recommendation referred to in paragraph 170BA(c).
“(3) Without limiting subsection (1), the reference in paragraph 170DF(1)(g) to other parental leave has been included in order to give effect, or further effect, to the Family Responsibilities Convention and to the Recommendation referred to in paragraph 170KA(1)(b).
“170CB. An expression has the same meaning in this Division as in the Termination of Employment Convention.
“170CC. The regulations may exclude specified employees from the operation of specified provisions of this Division. An exclusion has effect only if:
(a) it is permitted by paragraph 2 of Article 2 of the Termination of Employment Convention; and
(b) it is limited in such a way as to provide adequate safeguards as mentioned in paragraph 3 of that Article.
“
“170DA.(1) Subject to subsection (2), this Subdivision (except this section) commences on a day, not earlier than 26 February 1994, to be fixed by Proclamation.
“(2) If this Subdivision (except this section) does not commence under subsection (1) within the period of 6 months beginning on the day on which the
“170DB.(1) An employer must not terminate an employee’s employment unless:
(a) the employee has been given either the period of notice required by subsection (2), or compensation instead of notice; or
(b) the employee is guilty of serious misconduct, that is, misconduct of a kind such that it would be unreasonable to require the employer to continue the employment during the notice period.
“(2) The required period of notice is first worked out using this table:
|
|
Not more than 1 year | At least 1 week |
More than 1 year but not more than 3 years | At least 2 weeks |
More than 3 years but not more than 5 years | At least 3 weeks |
More than 5 years | At least 4 weeks |
The period of notice is increased by one week if the employee is over 45 years old and has completed at least 2 years continuous service with the employer.
“(3) The regulations may prescribe events or other matters that must be disregarded, or must in prescribed circumstances be disregarded, in ascertaining a period of continuous service for the purposes of subsection (2).
“(4) The amount of compensation instead of notice must equal or exceed the total of all amounts that, if the employee’s employment had continued until the end of the required period of notice, the employer would have become liable to pay to the employee because of the employment continuing during that period.
“(5) That total must be worked out on the basis of:
(a) the employee’s ordinary hours of work (even if they are not standard hours); and
(b) the amounts payable to the employee in respect of those hours, including (for example) allowances, loadings and penalties; and
(c) any other amounts payable under the employee’s contract of employment.
“170DC. An employer must not terminate an employee’s employment for reasons related to the employee’s conduct or performance unless:
(a) the employee has been given the opportunity to defend himself or herself against the allegations made; or
(b) the employer could not reasonably be expected to give the employee that opportunity.
“170DD.(1) This section applies if, on or after 26 February 1994, an employer decides to terminate the employment of 15 or more employees for reasons of an economic, technological, structural or similar nature, or for reasons including such reasons.
“(2) As soon as practicable after so deciding, the employer must give to the Commonwealth Employment Service a written notice of the intended terminations that sets out:
(a) the reasons for the terminations; and
(b) the number and categories of employees likely to be affected; and
(c) the time when, or the period over which, the employer intends to carry out the terminations.
“(3) The employer must not terminate an employee’s employment pursuant to the decision unless the employer has complied with subsection (2).
“170DE.(1) An employer must not terminate an employee’s employment unless there is a valid reason, or valid reasons, connected with the employee’s capacity or conduct or based on the operational requirements of the undertaking, establishment or service.
“(2) A reason is not valid if, having regard to the employee’s capacity and conduct and those operational requirements, the termination is harsh, unjust or unreasonable. This subsection does not limit the cases where a reason may be taken not to be valid.
“170DF.(1) An employer must not terminate an employee’s employment for any one or more of the following reasons, or for reasons including any one or more of the following reasons:
(a) temporary absence from work because of illness or injury;
(b) union membership or participation in union activities outside working hours or, with the employer’s consent, during working hours;
(c) non-membership of a union or of an association that has applied to be registered as a union under the provisions of this Act;
(d) seeking office as, or acting or having acted in the capacity of, a representative of employees;
(e) 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;
(f) race, colour, sex, sexual preference, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin;
(g) absence from work during maternity leave or other parental leave.
“(2) Subsection (1) does not prevent a matter referred to in paragraph (1)(f) from being a reason for terminating employment if the reason is based on the inherent requirements of the particular position.
“(3) Subsection (1) does not prevent a matter referred to in paragraph (1)(f) from being a reason for terminating a person’s employment as a member of the staff of an institution that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed, if the employer terminates the employment in good faith in order to avoid injury to the religious susceptibilities of adherents of that religion or creed.
“170DG. An employer must not terminate an employee’s employment in contravention of an order in force under section 170FA.
“
“170EA.(1) A person (
“(2) A trade union whose rules entitle it to represent the industrial interests of a person (
“(3) An application must be made:
(a) within 14 days after the employee receives written notice of the termination; or
(b) within such further period as the Court allows on an application made during or after those 14 days.
“(4) Unless the Court otherwise orders, the parties to an application are the employer, the employee and, if the application is made under subsection (2), the trade union.
“170EB. The Court must decline to consider or determine an application under section 170EA if satisfied that there is available to the employee by or on whose behalf the application was made an adequate alternative remedy, in respect of the termination, under existing machinery that satisfies the requirements of the Termination of Employment Convention.
“170EC. The Court is not to consider the merits of an application under section 170EA unless:
(a) the Court has referred the matter to the Commission for conciliation and the Commission has certified that it has been unable to settle the matter; or
(b) the Court is satisfied that it is not appropriate so to refer the matter.
“170ED.(1) When the Court refers to the Commission for conciliation a matter to which an application under section 170EA relates, the Commission must inquire into the matter and try to help the parties to the application agree on terms for settling the matter.
“(2) If the Commission decides that the matter cannot be settled by conciliation, or by further conciliation, within a reasonable period, the Commission must prepare a certificate that specifies the matter and states that the Commission has been unable to settle it by conciliation.
“(3) The Commission must give the certificate to the Registrar of the Court and a copy to each of the parties.
“(4) To avoid doubt, the Commission’s functions under this section are additional to its other functions, and are not subject to any implied limitations arising from the existence of any of its other functions.
“170EE.(1) After considering the merits of an application under section 170EA, the Court, unless satisfied that the termination of the employee’s employment contravened no provision of this Division (other than section 170DD) may make such orders as it thinks appropriate in order to put the employee in the same position (as nearly as can be done) as if the employment had not been terminated.
“(2) The orders the Court may make include, for example:
(a) an order declaring the termination to have contravened this Division;
(b) an order requiring the employer to reinstate the employee;
(c) an order that the employer pay compensation to the employee.
“(3) However, the Court is not to order the employer to reinstate the employee if the Court is satisfied that the termination contravened no provision of this Division (other than section 170DB or 170DD).
“(4) Nothing in section 170EC or in this section limits the Court’s power to make an interim or interlocutory order in relation to an application under section 170EA.
“170EF.(1) If the Court is satisfied that an employer has contravened subsection 170DD(2) in relation to a decision to terminate the employment of employees, the Court may do either or both of the following:
(a) make an order imposing on the employer a penalty of not more than $1,000;
(b) order the employer not to terminate the employment of employees pursuant to the decision, except as permitted by the order.
“(2) An application for an order or orders under subsection (1) may be made by:
(a) an inspector; or
(b) an employee whose employment has been or is proposed to be terminated pursuant to the employer’s decision; or
(c) an organisation whose members include such an employee; or
(d) an officer or employee of such an organisation, if the organisation’s rules authorise the officer or employee to sue on the organisation’s behalf.
“(3) A proceeding under subsection (2) must begin within 6 years after the contravention of subsection 170DD(2).
“170EG. A contravention of Subdivision B is not an offence.
“170EH. Section 431 does not apply to a contravention or proposed contravention of Subdivision B.
“
“170FA.(1) Subject to this Part, the Commission may, at any time on or after 26 February 1994, make an order for the purpose of giving effect to the requirements of Article 12 (in so far as it relates to a severance allowance or other separation benefits) or 13 of the Termination of Employment Convention in relation to the termination of employment of employees.
“(2) In so far as an order is made for the purposes of Article 13 of that Convention, the Commission must limit the order’s application to cases where an employer decides to terminate the employment of a number of employees that is not less than a number (not less than 15) that is specified in the order.
“170FB. The Commission must not make an order under section 170FA unless it has received an application for the making of the order from an employee, or a trade union whose rules entitle it to represent the industrial interests of employees, to be covered by the order.
“170FC. The Commission must refrain from considering the application, or from determining it, if the Commission is satisfied that there is an adequate alternative mechanism by which effect will be given to the requirements of the Articles referred to in section 170FA in relation to the employees concerned.
“170FD. Division 2 of Part VI, and section 111, have the same operation in relation to an application for an order under section 170FA as they would have if the application were the notification of an industrial dispute.
“170FE. Nothing in Subdivision E limits the Commission’s powers under this Subdivision.
“
“170GA.(1) Subsection (2) applies if the Commission is satisfied that an employer has, on or after 26 February 1994, decided to terminate the employment of 15 or more employees for reasons of an economic, technological, structural or similar nature, or for reasons including such reasons, and that:
(a) the employer did not, as soon as practicable after so deciding and in any event before terminating an employee’s employment pursuant to the decision, inform each trade union of which any of the employees was a member, and which represented the industrial interests of such of those employees as were members, about:
(i) the terminations and the reasons for them; and
(ii) the number and categories of employees likely to be affected; and
(iii) the time when, or the period over which, the employer intended to carry out the terminations; or
(b) the employer did not, as soon as practicable after so deciding and in any event before terminating an employee’s employment pursuant to the decision, give each such trade union an opportunity to consult with the employer on:
(i) measures to avert the termination, or avert or minimise the terminations; and
(ii) measures (such as finding alternative employment) to mitigate the adverse effects of the termination or terminations.
“(2) The Commission may make whatever orders it thinks appropriate, in the public interest, in order to put the employees whose employment was terminated pursuant to the decision, and each such trade union, in the same position (as nearly as can be done) as if:
(a) if paragraph (1)(a) applies—the employer had so informed the trade union; and
(b) if paragraph (1)(b) applies—the employer had so given the trade union such an opportunity.
“(3) Subsections (1) and (2) do not apply in relation to a trade union if the employer could not reasonably be expected to have known at the time of the decision that one or more of the employees were members of the trade union.
“170GB. The Commission must not make an order under section 170GA unless it has received an application for the making of the order from:
(a) an employee or trade union whose position is to be affected by the order as mentioned in subsection 170GA(2); or
(b) a trade union whose rules entitle it to represent the industrial interests of such employees.
“170GC. The Commission must refrain from considering an application, or from determining it, if the Commission is satisfied that there is available to the applicant, or to the employees whom the applicant represents, an adequate alternative remedy under machinery:
(a) that exists under a law of the Commonwealth (other than this Division) or under a law of a State or Territory; and
(b) by which effect will be given to the requirements of Article 13 of the Termination of Employment Convention in relation to the employees and trade unions concerned.
“170GD. Division 2 of Part VI, and section 111, have the same operation in relation to an application for an order under section 170GA as they would have if the application were the notification of an industrial dispute.
“
“170HA. On and after 26 February 1994, when the Termination of Employment Convention takes effect, any award or order of the Commission that is inconsistent with the requirements of that Convention does not have effect to the extent of the inconsistency.
“170HB. This Division is not intended to limit any right that a person or trade union may otherwise have to appeal against termination of employment or to secure the making of awards or orders relating to the termination of employment.
“
“170JA. An order of the Commission under this Part must be in writing.
“170JB. An order of the Commission under this Part takes effect from the date of the order or a later date specified in the order.
“170JC.(1) Part VIII has the same effect in relation to orders under this Part as it does in relation to awards.
“(2) For the purpose of applying Part VIII in that way, an order under this Part is, unless the order provides otherwise, taken to bind all employers and employees of the kind covered by the order (whether or not named or described in the order).
“(3) In addition to any other right that an employee covered by an order under this Part may have under Part VIII (as it applies in accordance with this section), the employee may apply to the Court to enforce the order by injunction or otherwise as the Court thinks fit.
“170JD.(1) The Commission may vary or revoke an order under this Part on application by:
(a) any employer, or representative of an employer, covered by the order (whether or not named or described in the order); or
(b) any employee, or representative of any employee, covered by the order (whether or not named or described in the order).
“(2) If the Commission is satisfied, on an application under this section, that an order under Division 2 should be varied or revoked because of a change in circumstances, the Commission must vary or revoke the order accordingly.
“(3) Subsection (2) does not limit the Commission’s powers under subsection (1).
“170JE.(1) Section 109 applies to an order under this Part as if it were an order in relation to an industrial dispute.
“(2) A reference in section 110, subsection 111(2) or section 128 or 129 to a proceeding before the Commission includes a reference to a proceeding under this Part. This subsection is to avoid doubt and does not limit the generality of those provisions.
“(3) Paragraph 111(1)(g) does not apply to a proceeding under this Part, despite subsection 111(2) and subsection (2) of this section.
“170JF. An appeal to a Full Bench under section 45 may be instituted by any person who is entitled under section 170JD to apply for the variation or revocation of an order under this Part.
“170JG. Any award or order of the Commission that is inconsistent with an order under this Part does not have effect to the extent of the inconsistency.
“170JH. Sections 152 and 153 have the same effect in relation to orders of the Commission under this Part as they have in relation to awards of the Commission.
“
“170KA.(1) The object of this Division and Schedule 14 is to give effect, or further effect, to:
(a) the Family Responsibilities Convention; and
(b) the Workers with Family Responsibilities Recommendation, 1981, which the General Conference of the International Labour Organisation adopted on 23 June 1981 and is also known as Recommendation No. 165, and a copy of the English text of which is set out in Schedule 13;
by providing for a system of unpaid parental leave, and a system of unpaid adoption leave, that will help men and women workers who have responsibilities in relation to their dependent children:
(c) to prepare for, enter, participate in or advance in economic activity; and
(d) to reconcile their employment and family responsibilities.
“(2) In particular, Schedule 14 gives effect, or further effect, to the Convention and the Recommendation by enabling either parent of a dependent child to obtain leave of absence (parental leave), without relinquishing employment, and with rights resulting from employment being safeguarded. Schedule 14 refers to parental leave granted to the child’s mother and her spouse as maternity leave and paternity leave, respectively.
“(3) The child’s mother is entitled to maternity leave, and her spouse is entitled to paternity leave, totalling up to 52 weeks following the birth of the child. Except for a period of one week at the time of the birth, maternity leave and paternity leave cannot overlap, since their main purpose is to enable the parent who is on leave to be the child’s primary care-giver. The purpose of the one-week overlapping period of leave is to enable both parents to care for the child, and to enable the mother’s spouse to give care and support to the mother, during the period immediately following the birth.
“(4) Schedule 14 establishes minimum entitlements and so is intended to supplement, and not to override, entitlements under other Commonwealth, State and Territory legislation and awards.
“(5) The regulations will provide for an analogous system of unpaid adoption leave.
“170KB. The provisions of Schedule 14 have the force of law, in the same way as if they were set out in this Division.
“170KC. The regulations may provide for or in relation to giving effect to the Family Responsibilities Convention, and the Recommendation referred to in paragraph 170KA(1)(b), by providing for the granting by employers to employees of unpaid adoption leave.
“
“170KAA.(1) This section applies unless an application is made by 1 March 1994 to the Commission for a test case to establish entitlements for employees to leave of absence to provide care or support for a member of the employee’s immediate family who is ill.
“(2) As soon as practicable after 1 March 1994, the Commission must conduct a hearing to determine the circumstances in which such leave should be granted, the persons to whom it should be granted and the entitlements which should be provided in relation to such leave to give effect, or further effect, to the Family Responsibilities Convention and the Workers with Family Responsibilities Recommendation.
“(3) The Commission must after making such a determination provide the Minister, as soon as practicable, with recommendations for legislation to give effect to the determination.”.
“(aa) imposed a penalty under section 170EF for a contravention of subsection 170DD(2);”.
26. Section 4 of the Principal Act is amended:
(a) by omitting “3A of Part VI” from the definition of “certified agreement” in subsection (1) and substituting “2 of Part VIB”;
(b) by omitting from subsection (1) the definitions of “award” and “employer” and substituting the following definitions:“
‘award’ means:(a) an award or order that has been reduced to writing under subsection 143(1); or
(b) a certified agreement; or
(c) an enterprise flexibility agreement;
‘employer’ includes:(a) in any case:
(i) a person who is usually an employer; and
(ii) an unincorporated club; and
(b) in relation to an agreement under Division 3 of Part VIB—a constitutional corporation that is a successor, assignee or transmittee (whether immediate or not) to or of the whole, or any relevant part or parts, of the business of the employer that made the agreement, including such a corporation that has acquired or taken over the whole, or any relevant part or parts, of that business;”;
(c) by inserting in subsection (1) the following definitions:“
‘agreement’ has a meaning affected by section 170NA;
‘constitutional corporation’ means:(a) a foreign corporation within the meaning of paragraph 51(xx) of the Constitution; or
(b) a body corporate that is, for the purposes of paragraph 51(xx) of the Constitution, a financial corporation formed within the limits of the Commonwealth; or
(c) a body corporate that is, for the purposes of paragraph 51(xx) of the Constitution, a trading corporation formed within the limits of the Commonwealth; or
(d) a body corporate that is incorporated in a Territory; or
(e) a Commonwealth authority;
‘enterprise flexibility agreement’ means an agreement whose implementation has been approved under Division 3 of Part VIB;
‘industrial situation’ means a situation that, if preventive action is not taken, may give rise to:(a) an industrial dispute of the kind referred to in paragraph (a) of the definition of ‘industrial dispute’; or
(b) a demarcation dispute of the kind referred to in that definition;
‘paid rates dispute’ has the meaning given by paragraph 170TA(1)(b);
‘paid rates functions and powers’ has the meaning given by subsection 170TA(1);
‘party’ , in relation to an industrial situation, means:(a) an organisation of employees that is affected by the situation; or
(b) an organisation of employers that is affected by the situation, or members of which are so affected; or
(c) an employer who is affected by the situation;”.
“95.(1) The Commission does not have power:
(a) to include terms in an award that are based on the terms of a certified agreement or of an enterprise flexibility agreement; or
(b) to include terms in an award that are based on the terms of a paid rates award;
unless the Commission is satisfied that including the terms in the award:
(c) would not be inconsistent with principles established by a Full Bench that apply in relation to determining wages and conditions of employment; and
(d) would not be otherwise contrary to the public interest.
“(2) In this section:
“(3) If:
(a) the Commission has directed under subsection (1) that preference is to be given to members of an organisation of employees or to persons who have applied to become members of such an organisation; or
(b) a certified agreement or enterprise flexibility agreement provides for preference to be so given;
an employer is not required, because of the award, order or agreement, to give preference over a person in relation to whom a certificate under section 267 is in force.”.
“145. The date of an award is:
(a) in the case of a certified agreement—the day when the agreement was certified under Division 2 of Part VIB; or
(b) in the case of an enterprise flexibility agreement—the day when the implementation of the agreement was approved under Division 3 of Part VIB; or
(c) otherwise—the day when the award was signed under subsection 143(1).”.
“(4) An award that is constituted by an enterprise flexibility agreement is binding on:
(a) a constitutional corporation that is:
(i) the employer that applied for approval of implementation of the agreement; or
(ii) a successor, assignee or transmittee (whether immediate or not) to or of the whole, or any relevant part or parts, of that employer’s business, including such a corporation that has acquired or taken over the whole, or any relevant part or parts, of that business; and
(b) each employee of such a corporation who is covered by the agreement, even if he or she was not such an employee when the agreement was made; and
(c) an organisation of employees, as provided by section 170NP; and
(d) all members of an organisation on which the agreement is binding because of paragraph (c).
“(5) Subsection (4) has effect subject to an order under subsection 170NN(7) or 170NO(3).”.
31. Before Part VII of the Principal Act the following Part is inserted:
“
“
“170LA.(1) The objects of this Part are:
(a) to facilitate:
(i) the making and certifying of agreements under Division 2; and
(ii) the making, and approval of the implementation of, agreements under Division 3; and
(b) to encourage the use of agreements, particularly at the workplace or enterprise level.
“(2) The Commission must, as far as practicable, perform its functions under this Part in a way that furthers the objects of this Act and, in particular, the objects of this Part.
“(3) Sections 90 and 106 do not apply to the performance of functions of the Commission under this Part.
“(4) In performing its functions under this Part, the Commission may not act under paragraph 111(1)(g) on the grounds specified in subparagraphs (i) and (iii) of that paragraph.
“170LB. In this Part, unless the contrary intention appears:
(a) that is a party to an award that binds the employer in respect of work performed in that enterprise; and
(b) of which one or more employees whom the employer employs to perform work in that enterprise are members;
(a) a geographically distinct part of the single business; or
(b) a distinct operational or organisational unit within the single business;
(a) a business that is carried on by a single employer; or
(2) The employer must employ her in the position she held:(a) if she was transferred to a safe job because of her pregnancy—immediately before the transfer; or
(b) if she began working part-time because of the pregnancy—immediately before she so began; or
(c) otherwise—immediately before she began maternity leave.
(a) a period of unpaid paternity leave (
“Schedule 14 short paternity leave” ) beginning on the child’s date of birth and lasting not more than one week;
(b) a period of unpaid paternity leave (
“Schedule 14 long paternity leave” ) in order to be the child’s primary care-giver.
(a) at least 10 weeks before the estimated date of birth, he gives to the employer:
(i) a written notice stating his intention to apply for the leave and specifying how long the leave is to last, being a period of not more than one week; and
(ii) a medical certificate that names his spouse, states that she is pregnant and specifies the estimated date of birth; and
(b) he applies in writing for the leave; and
(c) the application specifies the first and last days of the period of leave; and
(d) he submits the application as soon as reasonably practicable on or after the first day of the period of leave; and
(e) the period of leave does not exceed the period specified under paragraph (a); and
(f) unless the first day of the period of leave is the same as the date specified under subparagraph (a)(ii):
(i) he submits with the application a medical certificate that names his spouse and specifies the actual date of birth; and
(ii) the first day of the period of leave is that day; and
(g) it is reasonable to expect that he will complete, or he had completed, as the case requires, a period of at least 12 months continuous service with the employer on the day before the date specified under subparagraph (a)(ii).
(2) Paragraphs (1)(a) and (g) do not apply if:(a) because the child was premature, or for some other compelling reason, it was not reasonably practicable for the employee to comply with paragraph (1)(a); and
(b) if it was reasonably practicable for the employee to give to the employer, before the actual date of birth, the notice and certificate referred to in that paragraph—he did so as soon as reasonably practicable; and
(c) otherwise—the medical certificate submitted under subparagraph (1)(f)(i) also specifies the date that, as at the 70th day before the actual date of birth, was the estimated date of birth; and
(d) it is reasonable to expect that the employee will complete, or the employee had completed, as the case requires, 12 months continuous service with the employer on the day before the estimated date of birth specified in the certificate given under paragraph (b), or specified under paragraph (c), of this subclause.
(a) he applies in writing for the leave; and
(b) the application specifies the first and last days of the period of leave; and
(c) he submits the application at least 10 weeks before the first day of the period of leave; and
(d) he submits with the application a medical certificate that names his spouse and:
(i) states that she is pregnant and specifies the estimated date of birth; or
(ii) states that she has given birth to a living child and specifies the date of birth;
as the case requires; and
(e) he submits with the application a statutory declaration specifying the first and last days of:
(i) each period of unpaid leave, or paid sick leave, other than maternity leave, for which the spouse intends to apply, or has applied, in respect of the pregnancy; and
(ii) any period of maternity leave for which the spouse intends to apply, or has applied, in respect of the birth of the child; and
(iii) each period of annual leave, or long service leave, for which the spouse intends to apply, or has applied, instead of, or in conjunction with, maternity leave;
and stating:
(iv) that he will be the child’s primary care-giver throughout the period of paternity leave; and
(v) that he will not engage in any conduct inconsistent with his contract of employment while on paternity leave; and
(f) it is reasonable to expect that he will complete, or he had completed, as the case requires, a period of at least 12 months continuous service with the employer on the day before the first day of the period of leave.
(2) Paragraph (1)(c) does not apply if:(a) because the child was premature, or for some other compelling reason, it was not reasonably practicable for the employee to submit the application at least 10 weeks before the first day of the period of leave; and
(b) the employee submits the application as soon as reasonably practicable before, on or after that day.
(3) The period of Schedule 14 long paternity leave:
(a) if the child has not yet been born—must begin on the later of:
(i) the day specified in the application as the first day of the period of leave; or
(ii) the estimated date of birth;
and must not extend beyond the first anniversary of the estimated date of birth; and
(b) otherwise—must begin on the later of:
(i) the day specified in the application as the first day of the period of leave; or
(ii) the child’s date of birth;
and must not extend beyond the child’s first birthday; and
(c) must not overlap with a period of leave specified in the relevant statutory declaration; and
(d) subject to the preceding paragraphs, must be a continuous period equal to the shorter of:
(i) the period applied for;
(ii) the period of entitlement.
(4) The period of entitlement is 52 weeks less the total of:(a) if the employee has given the employer notice of his intention to apply for a period of short paternity leave in respect of the birth of the child—that period; and
(b) each period of annual leave, or long service leave, that the employee has applied to take instead of, or in conjunction with, long paternity leave in respect of the birth of the child; and
(c) each period of leave specified in the relevant statutory declaration.
16 .( 1 ) This clause applies if, had this Schedule not been enacted:
(a) an employee could have applied, in respect of the birth of a child of his spouse, for short paternity leave or long paternity leave to which paragraphs (a) and (b) of the definition of “short paternity leave” or “long paternity leave”, as the case may be, in clause 2 apply; and
(b) if he had so applied in accordance with the rules governing that paternity leave, he would have a legally enforceable right to a period of such leave;
whether or not he has in fact so applied.
(a) equals the difference between the unadjusted period of paternity leave and the period of alternative leave; and
(b) begins immediately after the period of alternative leave if the employer grants it; and
(c) in other respects complies with clause 14 or 15, as the case may be.
Note: This clause assumes that an employee will make a single application for a composite period of parental leave to which he is entitled, and that the application will be made in accordance with both this Schedule and the rules governing the other kind of parental leave for which the employee is applying.
(a) had this Schedule not been enacted, the employer would have been obliged to grant it (for example, because of some other law of the Commonwealth or of a State or a Territory); or
(b) the total of the following does not exceed 52 weeks:
(i) the period of annual leave or long service leave;
(ii) each period of annual leave, or long service leave, that the employer has already granted to the employee instead of, or in conjunction with, the paternity leave;
(iii) each period of paternity leave that the employer has already granted to the employee in respect of the birth;
(iv) each period of leave specified under paragraph 15(1)(e) in the relevant statutory declaration.
(2) The employer must grant the application if:(a) it is given to the employer at least 14 days before the last day of the period of leave; and
(b) it specifies the last day of the extended period of leave; and
(c) unless the matters referred to in subparagraphs 15(1)(e)(i), (ii) and (iii) are still as stated in the statutory declaration submitted with the application for the leave—the employee submits with the application for the extension a statutory declaration stating the matters referred to in those subparagraphs; and
(d) the period of leave, if extended in accordance with the application, would not exceed the period of entitlement under subclause 15(4), calculated as at the time of granting the application for the extension.
(a) the employee’s spouse’s pregnancy terminates otherwise than by the birth of a living child; or
(b) the employee’s spouse gives birth to a living child but the child later dies.
(2) The employer may cancel the leave at any time before it begins.
22 .( 1 ) This clause applies if:(a) during a substantial period beginning on or after the beginning of an employee’s Schedule 14 long paternity leave, the employee is not the child’s primary care-giver; and
(b) having regard to the length of that period and to any other relevant circumstances, it is reasonable to expect that the employee will not again become the child’s primary care-giver within a reasonable period.
24 .( 1 ) This clause applies if the total of the following exceeds 52 weeks:(a) any period of maternity leave granted by an employer to an employee (
“the mother” ) in respect of a pregnancy;(b) each period of annual leave or long service leave granted by the employer to the mother instead of, or in conjunction with, such maternity leave;
(c) each period of unpaid leave, or paid sick leave, other than maternity leave, granted by the employer to the mother in respect of the same pregnancy;
(d) each period of paternity leave granted by an employer to the mother’s spouse in respect of the birth of the child;
(e) each period of annual leave or long service leave granted, by the employer referred to in paragraph (e), to the mother’s spouse instead of, or in conjunction with, such paternity leave.
(3) The mother must give to her employer a written notice that:(a) if subclause (1) applies—states that the total exceeds 52 weeks and specifies the amount of the excess; and
(b) if subclause (2) applies—specifies the period of overlap; and
(c) sets out how she suggests the employer vary or cancel leave granted to her (except in so far as she has already taken it) so as to reduce or remove the excess or overlap; and
(d) unless the variations and cancellations suggested under paragraph (c) will remove the excess or overlap—sets out the suggestions her spouse has made or will make under paragraph (4)(c).
(4) The mother’s spouse must give to his employer a written notice that:(a) if subclause (1) applies—states that the total exceeds 52 weeks and specifies the amount of the excess; and
(b) if subclause (2) applies—specifies the period of overlap; and
(c) sets out how he suggests the employer vary or cancel leave granted to him (except in so far as he has already taken the leave) so as to remove the excess or overlap; and
(d) unless the variations or cancellations suggested under paragraph (c) will remove the excess or overlap—specifies the suggestions that the mother has made or will make under paragraph (3)(c).
25. An employer must not employ a person:(a) to replace an employee while he or she is on parental leave; or
(b) to replace an employee who, while another employee is on parental leave, is to perform the duties of the position held by the other employee;
unless the employer has informed the person:
(c) that his or her employment is only temporary; and
(d) about the rights of the employee who is on parental leave.
(a) for the purpose of determining the employee’s entitlement to a later period of parental leave; or
(b) as expressly provided in a law of the Commonwealth or of a State or Territory, or in an award, order, agreement or instrument; or
(c) as prescribed by the regulations.
27. To avoid doubt, this Schedule has effect despite:(a) a law of a State or Territory; or
(b) an award, order, agreement or instrument;
but is not intended to exclude or limit the operation of such a law, or of an award, order, agreement or instrument, in so far as that law, award, order, agreement or instrument can operate concurrently with this Schedule.
SCHEDULE 15 Section 170PA
PREAMBLE, AND PARTS I AND II, OF THE CONVENTION CONCERNING
FREEDOM OF ASSOCIATION AND PROTECTION
OF THE RIGHT TO ORGANISE
The General Conference of the International Labour Organisation,
Having been convened at San Francisco by the Governing Body of the International Labour Office, and having met in its Thirty-first Session on 17 June 1948;
Having decided to adopt, in the form of a Convention, certain proposals concerning freedom of association and protection of the right to organise, which is the seventh item on the agenda of the session;
Considering that the Preamble to the Constitution of the International Labour Organisation declares “recognition of the principle of freedom of association” to be a means of improving conditions of labour and of establishing peace;
Considering that the Declaration of Philadelphia reaffirms that “freedom of expression and of association are essential to sustained progress”;
Considering that the International Labour Conference, at its Thirtieth Session, unanimously adopted the principles which should form the basis for international regulation;
Considering that the General Assembly of the United Nations, at its Second Session, endorsed these principles and requested the International Labour Organisation to continue every effort in order that it may be possible to adopt one or several international Conventions;
adopts this ninth day of July of the year one thousand nine hundred and forty-eight the following Convention, which may be cited as the Freedom of Association and Protection of the Right to Organise Convention, 1948:
Part I. Freedom of Association
1. Each Member of the International Labour Organisation for which this Convention is in force undertakes to give effect to the following provisions.
Workers and employers, without distinction whatsoever, shall have the right to establish and, subject only to the rules of the organisation concerned, to join organisations of their own choosing without previous authorisation.
1. Workers’ and employers’ organisations shall have the right to draw up their constitutions and rules, to elect their representatives in full freedom, to organise their administration and activities and to formulate their programmes.
2. The public authorities shall refrain from any interference which would restrict this right or impede the lawful exercise thereof.
Workers’ and employers’ organisations shall not be liable to be dissolved or suspended by administrative authority.
Workers’ and employers’ organisations shall have the right to establish and join federations and confederations and any such organisation, federation or confederation shall have the right to affiliate with international organisations of workers and employers.
The provisions of Articles 2, 3 and 4 hereof apply to federations and confederations of workers’ and employers’ organisations.
The acquisition of legal personality by workers’ and employers’ organisations, federations and confederations shall not be made subject to conditions of such a character as to restrict the application of the provisions of Articles 2, 3 and 4 hereof.
1. In exercising the rights provided for in this Convention workers and employers and their respective organisations, like other persons or organised collectivities, shall respect the law of the land.
2. The law of the land shall not be such as to impair, nor shall it be so applied as to impair, the guarantees provided for in this Convention.
1. The extent to which the guarantees provided for in this Convention shall apply to the armed forces and the police shall be determined by national laws or regulations.
2. In accordance with the principle set forth in paragraph 8 of article 19 of the Constitution of the International Labour Organisation the ratification of this Convention by any Member shall not be deemed to affect any existing law, award, custom or agreement in virtue of which members of the armed forces or the police enjoy any right guaranteed by this Convention.
In this Convention the term “organisation” means any organisation of workers or of employers for furthering and defending the interests of workers or of employers.
Part II. Protection of the Right to Organise
Each Member of the International Labour Organisation for which this Convention is in force undertakes to take all necessary and appropriate measures to ensure that workers and employers may exercise freely the right to organise.
SCHEDULE 16 Section 170PA
PREAMBLE, AND ARTICLES 1 TO 6, OF THE CONVENTION CONCERNING
THE APPLICATION OF THE PRINCIPLES OF THE RIGHT TO ORGANISE
AND TO BARGAIN COLLECTIVELY
The General Conference of the International Labour Organisation,
Having been convened at Geneva by the Governing Body of the International Labour Office and having met in its Thirty-second Session on 8 June 1949, and
Having decided upon the adoption of certain proposals concerning the application of the principles of the right to organise and to bargain collectively, which is the fourth item on the agenda of the session, and
Having determined that these proposals shall take the form of an international Convention,
adopts this first day of July of the year one thousand nine hundred and forty-nine the following Convention, which may be cited as the Right to Organise and Collective Bargaining Convention, 1949:
1. Workers shall enjoy adequate protection against acts of anti-union discrimination in respect of their employment.
2. Such protection shall apply more particularly in respect of acts calculated to—
(a) make the employment of a worker subject to the condition that he shall not join a union or shall relinquish trade union membership;
(b) cause the dismissal of or otherwise prejudice a worker by reason of union membership or because of participation in union activities outside working hours or, with the consent of the employer, within working hours.
1. Workers’ and employers’ organisations shall enjoy adequate protection against any acts of interference by each other or each other’s agents or members in their establishment, functioning or administration.
2. In particular, acts which are designed to promote the establishment of workers’ organisations under the domination of employers or employers’ organisations, or to support workers’ organisations by financial or other means, with the object of placing such organisations under the control of employers or employers’ organisations, shall be deemed to constitute acts of interference within the meaning of this Article.
Machinery appropriate to national conditions shall be established, where necessary, for the purpose of ensuring respect for the right to organise as defined in the preceding Articles.
Measures appropriate to national conditions shall be taken, where necessary, to encourage and promote the full development and utilisation of machinery for voluntary negotiation between employers or employers’ organisations and workers’ organisations, with a view to the regulation of terms and conditions of employment by means of collective agreements.
1. The extent to which the guarantees provided for in this Convention shall apply to the armed forces and the police shall be determined by national laws or regulations.
2. In accordance with the principle set forth in paragraph 8 of article 19 of the Constitution of the International Labour Organisation the ratification of this Convention by any Member shall not be deemed to affect any existing law, award, custom or agreement in virtue of which members of the armed forces or the police enjoy any right guaranteed by this Convention.
This Convention does not deal with the position of public servants engaged in the administration of the State, nor shall it be construed as prejudicing their rights or status in any way.
SCHEDULE 2 Section 34
Omit “Vice President’s”, substitute “Organisations”.
Omit “the” (second occurring), substitute “a”.
Omit the definition, substitute:
“
‘Vice President’ :(a) means a Vice President of the Commission; and
(b) in the case of a reference to the Vice President assigned to the Bargaining Division—includes a person who is acting in an office of Vice President during a vacancy in the office;”.
Insert:
“
Omit the paragraph, substitute:
“(ab) 2 Vice Presidents;”.
Omit “Vice President”, substitute “Vice Presidents”.
Omit “the Vice President” (wherever occurring), substitute “a Vice President”.
Omit the paragraph, substitute:
“(ab) the Vice Presidents, according to the days on which their commissions took effect, or, if their commissions took effect on the same day, according to the precedence assigned to them by their commissions;”.
After “the Governor-General may appoint the” insert “senior”.
Omit the subsection, substitute:
“(1A) If, during a period referred to in subsection (1), the senior Vice President is unavailable to act in the office of President but the other Vice President is available, the Governor-General may appoint the other Vice President to act in that office.
“(1B) If, during a period referred to in subsection (1):
(a) neither Vice President is available to act in the office of President; or
(b) both offices of Vice President are vacant; or
(c) one of the offices of Vice President is vacant and the holder of the other is unavailable to act in the office of President;
the Governor-General may appoint any Presidential Member qualified to be appointed as President to act in the office of President.”.
Omit “or subsection (1A)”, substitute “, (1A) or (1B)”.
(a) Omit “the” (second occurring), substitute “a”;
(b) Omit “the office of”, substitute “an office of”.
Omit “the Vice President”, substitute “the holder of the office”.
Omit “The Vice President”, substitute “A Vice President”.
(a) Omit “the Vice President or a”, substitute “a Vice President or”.
(b) Omit “the office”, substitute “an office”.
Omit the subsection, substitute:
“(1) There is to be an Organisations Panel, consisting of:
(a) the Vice President not assigned to the Bargaining Division; and
(b) at least one other Presidential member (other than the President or a Vice President) assigned to the Panel by the President.”.
Omit “the Vice President”, substitute “a Vice President”.
Omit the subsection, substitute:
“(2) If the President delegates a power to only one of the Vice Presidents, he or she may, in addition, delegate that power to a Senior Deputy President to be exercised when that Vice President is unable, for any reason, to exercise that power personally.
“(3) If the President delegates the same power to both Vice Presidents, he or she may, in addition, delegate that power to a Senior Deputy President to be exercised when, for any reason, neither Vice President is able to exercise that power personally.”.
Omit “3A of Part VI”, substitute “2 of Part VIB”.
Insert:
“(eaa) a decision of a member of the Commission refusing to approve under Division 3 of Part VIB implementation of an agreement;”.
Omit “paragraph 134E(1)(e)”, substitute “paragraph 170MC(1)(g)”.
Insert:
“(baa) in the case of an appeal under paragraph (1)(eaa)—by any person who would have been bound by the agreement if implementation of it had been approved;”.
Omit “subparagraph 134E(1)(e)(i)”, substitute “subparagraph 170MC(1)(g)(i)”.
Omit “3A of Part VI”, substitute “2 of Part VIB”.
Omit “The President”, substitute “Subject to subsection (2A), the President”.
Insert:
“(2A) If dealing with a proceeding would involve performing or exercising any of the Bargaining Division’s functions and powers, the President must consult the Vice President assigned to the Bargaining Division before deciding to deal with that proceeding under subsection (2).”.
Omit “3A of Part VI”, substitute “2 of Part VIB”.
Omit the subsection, substitute:
“(8) This section does not apply to:
(a) an award constituted by a certified agreement or by an enterprise flexibility agreement; or
(b) a decision to certify, or to approve implementation of, an agreement.”.
Omit the paragraph, substitute:
“(c) in accordance with Division 2 of Part VIB, certify an agreement;
(ca) in accordance with Division 3 of Part VIB, approve implementation of an agreement;”.
After “an award” insert “(except a certified agreement or enterprise flexibility agreement)”.
Insert:
“(2D) Before taking action under subsection (2A) in relation to an enterprise flexibility agreement, the Commission must give the employer an opportunity to vary the agreement, so as to remove the discrimination, by an instrument made with the approval, obtained as directed by the Commission, of a majority of the persons who, as at the end of a day specified in the direction, were employees covered by the agreement.”.
Repeal the Division.
Insert:
“(1A) For the purposes of subsection (1), none of the following is an award or an order affecting an award:
(a) a decision to certify, or to approve implementation of, an agreement under Part VIB;
(b) a certified agreement;
(c) an enterprise flexibility agreement.”.
Omit “either of the following”, substitute “one or more of these”.
Insert:
“(iii) in the case of a decision—it is a decision to certify, or approve implementation of, an agreement under Part VIB;
(iv) the decision or determination is, in the Commission’s opinion, an order affecting a certified agreement or an enterprise flexibility agreement;”.
Insert:
“(ia) in the case of a decision to certify, or approve implementation of, an agreement under Part VIB—a copy of the agreement; and”.
Omit the paragraph, substitute:
“(b) ensure that copies of each of the following are available for inspection at each registry:
(i) the decision or determination; and
(ii) in the case of a decision to certify, or approve implementation of, an agreement under Part VIB—a copy of the agreement; and
(iii) any written reasons received by the Registrar for the decision or determination.”.
Omit the subsection, substitute:
“(4) The Industrial Registrar must ensure that the following are published as soon as practicable:
(a) a decision or determination covered by subsection (1) or (2), except:
(i) a decision to certify an agreement under Part VIB that applies only to a single business, part of a single business or a single place of work;
(ii) a decision to approve implementation of an agreement under Part VIB;
(iii) a decision or determination that is, in the Commission’s opinion, an order affecting:
(A) a certified agreement covered by subparagraph (i); or
(B) an enterprise flexibility agreement;
(b) any written reasons for a decision or determination covered by paragraph (a) that are received by a Registrar;
(c) a certified agreement:
(i) that does not apply only to a single business, part of a single business or a single place of work; and
(ii) a copy of which is given to a Registrar under subparagraph (2)(d)(ia).”.
Repeal the section.
SCHEDULE 3 Section 48
CONSEQUENTIAL AMENDMENTS OF THE TRADE PRACTICES
ACT 1974
Omit “subsection 45D(1A) or in”.
Omit “(other than subsection (1A)), 45E”.
Omit the paragraph.
Omit “, (eb)”.
Omit the subsection.
Omit “or (7A)”.
Omit “, (7A)”.
SCHEDULE 4 Section 62
CONSEQUENTIAL AMENDMENTS OF OTHER ACTS
After “Australia” insert “, or by the Industrial Relations Court of Australia,”.
Before “or a decision of the Family Court” insert “, a decision of the Industrial Relations Court of Australia or a Judge of that Court”.
Insert:
“(aa) without limiting paragraph (a) of this subsection, a Judge or Judges of the Industrial Relations Court of Australia; or”.
_________________________________________________________________________________
1. No. 86, 1988, as amended. For previous amendments, see No. 109, 1988; No. 153, 1989 (as amended by No. 28, 1991); Nos. 37, 71 and 108, 1990; Nos. 19, 62 and 122, 1991; Nos. 52, 92, 94, 109, 132, 179, 196, 212 and 215, 1992; and No. 1993.
2. No. 51, 1974, as amended. For previous amendments, see Nos. 56 and 63, 1974; Nos. 88 and 157, 1976; Nos. 81, 111 and 151, 1977; Nos. 206 and 207, 1978; No. 73, 1980; Nos. 61 and 176, 1981; No. 80, 1982; No. 39, 1983; Nos. 63 and 73, 1984; No. 165, 1984 (as amended by No. 17, 1986); No. 65, 1985; Nos. 8, 17 and 168, 1986; Nos. 23 and 141, 1987; No. 8, 1988 (as amended by No. 120, 1988); No. 20; 1988; No. 87, 1988 (as amended by No. 108, 1990); Nos. 28 and 34, 1989; Nos. 11 and 70, 1990; Nos. 49, 122, 136, 173 and 180, 1991; and Nos. 22, 104, 105, 106 and 222, 1992.
3. No. 24, 1987, as amended. For previous amendments, see No. 87, 1988; Nos. 70 and 83, 1990; and Nos. 165 and 222, 1992.
4. No. 21, 1922, as amended. For previous amendments, see No. 46, 1924; No. 41, 1928; No. 19, 1930; No. 21, 1931; No. 72, 1932; No. 38, 1933; Nos. 45 and 46, 1934; No. 72, 1936; No. 41, 1937; No. 72, 1939; No. 88, 1940; No. 5, 1941; No. 19, 1943; Nos. 11, 29 and 43, 1945; No. 16, 1946; Nos. 1, 38, 52 and 84, 1947; Nos. 35 and 75, 1948; Nos. 51 and 80, 1950; Nos. 46 and 48, 1951; No. 22, 1953; No. 63, 1954; No. 18, 1955; Nos. 13 and 39, 1957; No. 11, 1958; Nos. 17 and 105, 1960; Nos. 2 and 75, 1964; Nos. 47 and 85, 1966; Nos. 2 and 115, 1967; Nos. 59, 114 and 120, 1968; No. 6, 1972; Nos. 21, 71, 73 and 209, 1973; No. 59, 1974; No. 40, 1975; Nos. 193 and 194, 1976; Nos. 6 and 80, 1977; Nos. 36 and 170, 1978; Nos. 52 and
155, 1979; No. 177, 1980; Nos. 61, 1981; Nos. 26 and 80, 1982; No. 111, 1982 (as amended by No. 39, 1983); Nos. 39, 56 and 92, 1983; No. 63, 1984 (as amended by No. 165, 1984); No. 165, 1984; Nos. 65, 166 and 187, 1985; Nos. 28, 29 and 76; 1986; No. 153, 1986 (as amended by No. 141, 1987); Nos. 92, 99 and 141, 1987; Nos. 75, 87, 99 and 109, 1988; Nos. 150 and 153, 1989; Nos. 2, 73, 122, 199, 205 and 208, 1991; Nos. 70, 94, 196 and 215, 1992; and No. 27, 1993.
5. No. 65, 1977, as amended. For previous amendments, see No. 125, 1979; No. 176, 1981; No. 80, 1982; Nos. 63 and 72, 1984; and No. 109, 1992.
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House of Representatives on 28 October 1993
Senate on 24 November 1993
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