Industrial Relations Reform Act 1994 (Qld)

Queensland INDUSTRIAL RELATIONS REFORM ACT 1994 Act No. 12 of 1994

Queensland INDUSTRIAL RELATIONS REFORM ACT 1994 TABLE OF PROVISIONS Section Page PART 1—PRELIMINARY 1 Short title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 PART 2—AMENDMENT OF INDUSTRIAL RELATIONS ACT 1990 2 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 3 Amendment of s 3 (Objects) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 4 Amendment of s 5 (Meaning of terms) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 5 Insertion of new ss 30A and 30B . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 30A Performance of Commission’s functions (s 90AA Cwlth) . . . . . . . . 17 30B Commission decisions to be in plain English (s 143(2A) Cwlth) . . 18 6 Insertion of new Divs 4–7 in Pt 4 (Industrial Relations Commission) . . . . 18 Division 4—Minimum wages 49AA Object of Division (s 170AA Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . 18 49AB Meaning of expressions (s 170AB Cwlth) . . . . . . . . . . . . . . . . . . . . . 19 49AC Orders setting minimum wages (s 170AC Cwlth) . . . . . . . . . . . . . . . 19 49AD Orders only on application (s 170AD Cwlth) . . . . . . . . . . . . . . . . . . 19 49AE When Commission may make order (s 170AE Cwlth) . . . . . . . . . . . 19 49AF Matters to be considered when setting minimum wages (s 170AF Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 49AG Division does not limit other rights (s 170AG Cwlth) . . . . . . . . . . . 21 Division 5—Equal remuneration for work of equal value 49BA Object of Division (s 170BA Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . 21 49BB Meaning of expressions (s 170BB Cwlth) . . . . . . . . . . . . . . . . . . . . . 21 49BC Orders requiring equal remuneration (s 170BC Cwlth) . . . . . . . . . . 21

2 Industrial Relations Reform No. 12, 1994 49BD Orders only on application (s 170BD Cwlth) . . . . . . . . . . . . . . . . . . 21 49BE When Commission must and may only make order (s 170BC Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 49BF Immediate or progressive introduction of equal remuneration (s 170BF Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 49BG Employer not to reduce remuneration (s 170BG Cwlth) . . . . . . . . . 22 49BH Division does not limit other rights (s 170BH Cwlth) . . . . . . . . . . . 22 Division 6—Further provisions about orders under Division 4 or 5 49CA Orders to be written (s 170JA Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . 23 49CB When orders take effect (s 170JB Cwlth) . . . . . . . . . . . . . . . . . . . . . 23 49CC Compliance with orders (s 170JC Cwlth) . . . . . . . . . . . . . . . . . . . . . 23 49CD Amendment and revocation of orders (s 170JD Cwlth) . . . . . . . . . . 23 49CE Inconsistent awards or orders (s 170JG Cwlth) . . . . . . . . . . . . . . . . . 23 Division 7—Industry consultative councils 49D Industry consultative councils (s 133 Cwlth) . . . . . . . . . . . . . . . . . . 24 7 Amendment of s 70 (Basis of procedures and decisions of the Commission and Industrial Magistrates) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 8 Amendment of s 83 (Representation of parties) . . . . . . . . . . . . . . . . . . . . . . 25 9 Replacement of s 89 (Enforcement of Commission’s orders) . . . . . . . . . . . 25 89 Enforcement of Commission’s orders . . . . . . . . . . . . . . . . . . . . . . . . . 25 10 Amendment of Pt 10 (Awards and industrial agreements) . . . . . . . . . . . . . . 26 Division 1—The award system Subdivision 1—Objects of Division 105A Objects of Division (Cwlth s 88A) . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 Subdivision 3—Paid rates awards 108A Objects of Subdivision (s 170SA Cwlth) . . . . . . . . . . . . . . . . . . . . . . 27 108B Making or amending paid rates awards (s 170UB Cwlth) . . . . . . . . 27 108C Commission to maintain existing paid rates awards (s 170UC Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 108D Party acting inconsistently with award’s status as a paid rates award (s 170UD Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 108E Statement identifying paid rates award (s 170UE Cwlth) . . . . . . . . 29 11 Amendment of s 128 (Persons bound by agreement) . . . . . . . . . . . . . . . . . . 29 12 Amendment of s 131 (Powers of Commission re awards) . . . . . . . . . . . . . . 30

3 Industrial Relations Reform No. 12, 1994 13 Insertion of new ss 131A and 131B . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 131A Commission to include enterprise flexibility provisions in awards (s 113A Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 131B Amendment of award to give effect to agreement negotiated under enterprise flexibility provision (s 113B Cwlth) . . 30 14 Insertion of new s 134A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 134A Commission must review awards and industrial agreements (s 150A Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 15 Insertion of new Pt 10A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 PART 10A—PROMOTING BARGAINING AND FACILITATING AGREEMENTS Division 1—Objects and interpretation 139AA Objects of Part (s 170LA Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 139AB Definitions (s 170LB Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 Division 2—Certified agreements 139BA Certified agreements (s 170MA Cwlth) . . . . . . . . . . . . . . . . . . . . . . 35 139BB Organisations entitled to be heard (s 170MB Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 139BC Certification of agreements (s 170MC Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 139BD When Commission must refuse to certify agreements (s 170MD Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . 38 139BE How agreement may provide for amendment (s 170ME Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 139BF Other options open to Commission instead of refusing to certify agreement (s 170MF Cwlth) . . . . . . . 40 139BG Commission to protect interests of certain employees (s 170MG Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . 41 139BH Procedures for preventing and settling disputes (s 170MH Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 139BI Operation of certified agreements (s 170MI Cwlth) . . . . . . . . . . . . . 41 139BJ Party may retire from a certified agreement . . . . . . . . . . . . . . . . . . . 42 139BK Extension of certified agreements (s 170MJ Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 139BL Effect of certified agreements (s 170MK Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

4 Industrial Relations Reform No. 12, 1994 139BM Amendment of certified agreement as provided in the agreement (s 170ML Cwlth) . . . . . . . . . . . . . . . . 44 139BN Certified agreements may be amended or terminated by Full Bench (s 170MM Cwlth) . . . . . . . . 45 139BO Review of certified agreements (s 170MM Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 139BP Certified agreements may be terminated by parties (s 170MN Cwlth) . . . . . . . . . . . . . . . . . . . . . . 46 139BQ Enforcement of certified agreements . . . . . . . . . . . . . . . . . . . . . . . . . 47 Division 3—Enterprise flexibility agreements 139CA Employer may apply for approval of implementation of enterprise flexibility agreement (s 170NA Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 139CB Organisations entitled to be heard (s 170NB Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 139CC Approval of implementation of agreement (s 170NC Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48 139CD When Commission must refuse to approve implementation of agreements (s 170ND Cwlth) . . . . . . . . 50 139CE How agreement may provide for its amendment (s 170NE Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51 139CF Other options open to Commission instead of refusing to approve implementation (s 170NF Cwlth) . . 52 139CG Commission to protect interests of certain employees (s 170NG Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . 53 139CH Procedures for preventing and settling disputes (s 170NI Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53 139CHA Provisions relevant when business has distinct parts (s 170LC Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . . . 54 139CI Operation of enterprise flexibility agreements (s 170NJ Cwlth) . . . 54 139CJA Person may retire from enterprise flexibility agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55 139CJ Extension of enterprise flexibility agreements (s 170NK Cwlth) . . 55 139CK Effect of enterprise flexibility agreements (s 170NL Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56 139CL Amendment of enterprise flexibility agreement as provided in the agreement (s 170NM Cwlth) . . . . . . 57 139CM Enterprise flexibility agreements may be amended or terminated by Full Bench (s 170NN Cwlth) . . 57

5 Industrial Relations Reform No. 12, 1994 139CN Review of enterprise flexibility agreements (s 170NN Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58 139CO Enterprise flexibility agreements may be terminated by persons bound (s 170NO Cwlth) . . . . . . . . . . 58 139CP Eligible union may agree to be bound by enterprise flexibility agreement (s 170NP Cwlth) . . . . . . 59 Division 4—Immunity from civil liability for protected action during bargaining period 139DA Object of Division (s 170PA Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . 60 139DC Division’s purpose (s 170PC Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . 61 139DD Initiation of bargaining period (s 170PD Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61 139DE Particulars to accompany notice (s 170PE Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62 139DF When bargaining period begins (s 170PF Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62 139DG Protected action for which immunity is provided (s 170PG Cwlth) . . . . . . . . . . . . . . . . . . . . . . . 62 139DH 72 hours’ notice of action must be given (s 170PH Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63 139DI Negotiation must precede industrial action (s 170PI Cwlth) . . . . . . 64 139DJ What happens if Commission orders a ballot under s 190 (s 170PJ Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64 139DK Industrial action must be properly authorised (s 170PK Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65 139DL What happens if application to certify agreement is not made within 21 days (s 170PL Cwlth) . . . 66 139DM Immunity for protected action (s 170PM Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66 139DN When bargaining period ends (s 170PN Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66 139DO Power of Commission to suspend or terminate bargaining period (s 170PO Cwlth) . . . . . . . . . . . . . . . . . . 66 139DP What happens if Commission terminates a bargaining period under s 139DO(1)(b)? (s 170PP Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68

6 Industrial Relations Reform No. 12, 1994 Division 5—Conciliation in relation to proposed agreements 139EA Commission may conciliate proposed agreements under this Part (s 170QH Cwlth) . . . . . . . . . . 69 139EB Directions and orders to assist the making of agreements (s 170QI Cwlth) . . . . . . . . . . . . . . . . . . . . . . . 69 139EC Commission orders about negotiations for agreements under this Part (s 170QK Cwlth) . . . . . 69 139ED Representation of employees in negotiations for enterprise flexibility agreements (s 170RB Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70 Division 6—Provisions common to certified agreements and enterprise flexibility agreements 139FA Employer not to discriminate between union members and non-union members when negotiating agreements (s 170RA Cwlth) . . . . . . . . . . . . . . . . . . . . . 71 139FB Components of wage rates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71 139FC Effect of appeal decisions on agreements . . . . . . . . . . . . . . . . . . . . . 72 139FD Inconsistency between agreements and contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72 16 Amendment of s 159 (Entitlement to long service leave) . . . . . . . . . . . . . . 73 17 Replacement of s 164 (Continuous service of casual employees) . . . . . . . 73 164 Continuous service of casual employees . . . . . . . . . . . . . . . . . . . . . . 73 18 Insertion of new s 165A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74 165A Time and manner of taking long service leave—casual employees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75 19 Amendment of s 166 (Payment for long service leave) . . . . . . . . . . . . . . . . 75 20 Amendment of Pt 11 (General conditions of employment) . . . . . . . . . . . . . 76 Division 3A—Parental leave Subdivision 1—Preliminary 174AA Object of Division (s 170KA Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . 76 174AB Basic principles (Sch 14 cl 1 Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . 76 174AC Definitions (Sch 14 cl 2 Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77 Subdivision 2—Maternity leave 174BA Entitlement to maternity leave (Sch 14 cl 3 Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79

7 Industrial Relations Reform No. 12, 1994 174BB Conditions of entitlement to maternity leave (Sch 14 cl 3 Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . 80 174BC Period of maternity leave (Sch 14 cl 4 Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82 174BD Entitlement reduced by other maternity leave available to employee (Sch 14 cl 5 Cwlth) . . . . . . 83 174BE Taking annual or long service leave instead of, or in conjunction with, maternity leave (Sch 14 cl 6 Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84 174BF Extending maternity leave (Sch 14 cl 7 Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84 174BG Shortening maternity leave (Sch 14 cl 8 Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85 174BH Effect on maternity leave of failure to complete 1 year of continuous service (Sch 14 cl 9 Cwlth) . . . . 85 174BI Effect on maternity leave if pregnancy terminates or child dies (Sch 14 cl 10 Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85 174BJ Effect on maternity leave of ceasing to be the primary care-giver (Sch 14 cl 11 Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86 174BK Return to work after maternity leave (Sch 14 cl 12 Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87 174BL Transfer to safe duties because of pregnancy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87 Subdivision 3—Paternity leave 174CA Entitlement to paternity leave (Sch 14 cl 13 Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88 174CB Conditions of entitlement to short paternity leave (Sch 14 cl 14 Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . 88 174CC Conditions of entitlement to long paternity leave (Sch 14 cl 15 Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . 89 174CD Period of long paternity leave (Sch 14 cl 15 Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90 174CE Entitlement reduced by other paternity leave available to employee (Sch 14 cl 16 Cwlth) . . . . . 91 174CF Taking annual or long service leave instead of, or in conjunction with, paternity leave (Sch 14 cl 17 Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92 174CG Extending long paternity leave (Sch 14 cl 18 Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93

8 Industrial Relations Reform No. 12, 1994 174CH Shortening paternity leave (Sch 14 cl 19 Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93 174CI Effect on long paternity leave of failure to complete 1 year of continuous service (Sch 14 cl 20 Cwlth) . . . . . . . . . . . . . . . 93 174CJ Effect on long paternity leave if pregnancy terminates or child dies (Sch 14 cl 21 Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94 174CK Effect on paternity leave of ceasing to be the primary care-giver (Sch 14 cl 22 Cwlth) . . . . . . . . . . . . . . 94 174CL Return to work after paternity leave (Sch 14 cl 23 Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95 Subdivision 4—General 174DA Employee’s duty if excessive leave granted or if maternity leave and paternity leave overlap (Sch 14 cl 24 Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95 174DB Employer to warn replacement employee that employment is only temporary (Sch 14 cl 25 Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97 174DC Parental leave and continuity of service (Sch 14 cl 26 Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97 174DD Effect of Division on other laws (Sch 14 cl 27 Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97 174DE Regulations for adoption leave (s 170KC Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98 Division 4—Dismissal Subdivision 1—Object and interpretation 175AA Object of Division (s 170CA Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . 98 175AB Meaning of expressions (s 170CB Cwlth) . . . . . . . . . . . . . . . . . . . . 98 175AC Exclusion of employees from Division (s 170CC Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98 Subdivision 2—Requirements for lawful dismissal 175BA When dismissal is unlawful (ss 170DE, 170DF and 170DG Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . 99 175BB Opportunity to defend against allegations before dismissal (s 170DC Cwlth) . . . . . . . . . . . . . . . . . 100 175BC Notice of dismissal or compensation to be given (s 170DB Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100 175BD Contravention of Subdivision not an offence (s 170EG Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101

9 Industrial Relations Reform No. 12, 1994 Subdivision 3—Remedies for unlawful dismissal 175CA Orders only on application (s 170EA Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101 175CB Conciliation before application heard (s 170ED Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102 175CC Orders for unlawful dismissal other than under s 175EC (s 170EE Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . 102 175CD Orders for unlawful dismissal under s 175EC (s 170EF Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103 175CE Effect of order on leave . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104 175CF Costs for frivolous or vexatious applications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104 175CG Further orders against employer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104 Subdivision 4—Orders giving effect to Articles 12 and 13 of Convention 175DA Orders giving effect to Articles 12 and 13 of Convention (s 170FA Cwlth) . . . . . . . . . . . . . . . . . . . . . . . 104 175DB Orders only on application (s 170FB Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105 175DC Commission’s powers not limited by Sdiv 5 (s 170FE Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105 Subdivision 5—Dismissals of 15 or more employees 175EA Orders if employer does not consult industrial organisation about proposed dismissals (s 170GA Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105 175EB Orders only on application (s 170GB Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106 175EC Employer must notify CES of proposed dismissals (s 170DD Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . 106 Subdivision 6—Miscellaneous 175FA Division does not limit other rights (s 170HB Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107 175FB Orders to be written (s 170JA Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . 107 175FC Inconsistent awards, orders etc. (s 170JG Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107 21 Insertion of new Div 1A in Pt 13 (Industrial organisations) . . . . . . . . . . . . . 107 Division 1A—Preliminary 194A Objects of Part (s 187A Cwlth) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108

10 Industrial Relations Reform No. 12, 1994 22 Amendment of s 196 (Criteria for registration) . . . . . . . . . . . . . . . . . . . . . . . 108 23 Amendment of s 197 (Continued registration of small industrial organisations) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108 24 Replacement of s 273 (Fixing hearing in relation to amalgamation etc.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109 273 Fixing hearing for amalgamation etc. . . . . . . . . . . . . . . . . . . . . . . . . 109 25 Amendment of s 275 (Approval for submission to ballot of amalgamation not involving extension of eligibility rules etc.) . . . . . . . . . 110 26 Amendment of s 276 (Objections in relation to amalgamation involving extension of eligibility rules etc.) . . . . . . . . . . . . . . . . . . . . . . . . . 111 27 Amendment of s 277 (Approval for submission to ballot of amalgamation involving extension of eligibility rules etc.) . . . . . . . . . . . . . 111 28 Amendment of s 283 (Exemption from ballot) . . . . . . . . . . . . . . . . . . . . . . . 112 29 Insertion of new s 283A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112 283A Exemption from ballot—recognition of federal ballot . . . . . . . . . . . 112 30 Amendment of s 342 (Prejudice of employee by reason of membership of industrial organisation) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114 31 Amendment of s 348 (Appointment of industrial inspectors) . . . . . . . . . . . . 114 32 Amendment of s 362 (Time and wages record of award employees) . . . . . 115 33 Amendment of s 363 (Wages record of non-award employees) . . . . . . . . . 115 34 Insertion of new s 382 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116 382 Notices and applications to be written . . . . . . . . . . . . . . . . . . . . . . . . 116 35 Amendment of s 428 (Avoiding Act’s obligations) . . . . . . . . . . . . . . . . . . . . 116 36 Amendment of s 466 (Breaches of awards etc. generally) . . . . . . . . . . . . . . 117 37 Insertion of new s 467A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118 467A Employees not to be dismissed etc. for engaging in industrial action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118 38 Insertion of new ss 487–490 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119 487 Transitional certified agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119 488 Transitional provision about dismissals . . . . . . . . . . . . . . . . . . . . . . . 120 489 Transitional provision about small industrial organisations . . . . . . . 120 490 Numbering and renumbering of Act . . . . . . . . . . . . . . . . . . . . . . . . . . 121 39 Insertion of new Schs 1–13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121

11 Industrial Relations Reform No. 12, 1994 SCHEDULE 1 MINIMUM WAGES CONVENTION SCHEDULE 2 EQUAL REMUNERATION CONVENTION SCHEDULE 3 CONVENTION ON THE ELIMINATION OF ALL FORMS OF DISCRIMINATION AGAINST WOMEN SCHEDULE 4 DISCRIMINATION (EMPLOYMENT AND OCCUPATION) CONVENTION SCHEDULE 5 ECONOMIC, SOCIAL AND CULTURAL RIGHTS COVENANT SCHEDULE 6 EQUAL REMUNERATION RECOMMENDATION SCHEDULE 7 DISCRIMINATION (EMPLOYMENT AND OCCUPATION) RECOMMENDATION SCHEDULE 8 FAMILY RESPONSIBILITIES CONVENTION SCHEDULE 9 WORKERS WITH FAMILY RESPONSIBILITIES RECOMMENDATION SCHEDULE 10 TERMINATION OF EMPLOYMENT CONVENTION SCHEDULE 11 FREEDOM OF ASSOCIATION AND PROTECTION OF THE RIGHT TO ORGANISE CONVENTION SCHEDULE 12 RIGHT TO ORGANISE AND COLLECTIVE BARGAINING CONVENTION SCHEDULE 13 TERMINATION OF EMPLOYMENT RECOMMENDATION PART 3—AMENDMENT OF PUBLIC SERVICE MANAGEMENT AND EMPLOYMENT ACT 1988 40 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 225

12 Industrial Relations Reform No. 12, 1994 41 Amendment of s 40 (Cooperation between State and Commonwealth Services) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 225 PART 4—AMENDMENT OF VOCATIONAL EDUCATION, TRAINING AND EMPLOYMENT ACT 1991 42 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 225 43 Relocation of Schedule (National Vocational Education and Training Statement) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 226 SCHEDULE . . . . . . . . . . . . . . . . . . . . . . . . . 227 MINOR AMENDMENTS

Queensland Industrial Relations Reform Act 1994 Act No. 12 of 1994 An Act to amend the Industrial Relations Act 1990 to further promote workplace reforms and protect workers’ entitlements, and for other purposes [Assented to 30 March 1994]

14 Industrial Relations Reform The Parliament of Queensland enacts— No. 12, 1994 PART 1—PRELIMINARY ˙ Short title 1. This Act may be cited as the Industrial Relations Reform Act 1994 . PART 2—AMENDMENT OF INDUSTRIAL RELATIONS ACT 1990 ˙ Act amended 2. This Part and the Schedule amend the Industrial Relations Act 1990 . ˙ Amendment of s 3 (Objects) 3.(1) Section 3, after paragraph (a)— insert— ‘ (aa) to encourage and assist the making of agreements, between the parties involved in industrial relations, to decide matters about the relationship between employers and employees, particularly at the enterprise or workplace level; and (ab) to provide the means for— (i) establishing and maintaining an effective framework for protecting wages and employment conditions through awards; and (ii) ensuring that labour standards meet Australia’s international obligations; and (ac) to provide a framework of rights and responsibilities for the

15 Industrial Relations Reform No. 12, 1994 parties involved in industrial relations that— (i) encourages fair and effective bargaining; and (ii) ensures the parties abide by agreements between them; and ’. (2) Section 3, after paragraph (g)— insert— ‘ (ga)to help prevent and eliminate discrimination on the basis of— (i) an attribute for which discrimination is prohibited under the Anti-Discrimination Act 1991 ; or (ii) family responsibilities. ’. (3) Section 3(d)— omit ‘ recognise and encourage the formation ’, insert ‘ encourage the formation and registration ’. ˙ Amendment of s 5 (Meaning of terms) 4.(1) Section 5(1), definition “certified agreement” — omit . (2) Section 5(1)— insert— ‘ “Anti-Discrimination Conventions” means— (a) the Equal Remuneration Convention; and (b) the Convention on the Elimination of all Forms of Discrimination against Women (the English text of which is set out in Schedule 3); and (c) the Discrimination (Employment and Occupation) Convention; and (d) Articles 3 and 7 of the Economic, Social and Cultural Rights Covenant; “certified agreement” means an agreement certified under Part 10A, Division 2 that is in force or a certified agreement as amended under the Division;

16 Industrial Relations Reform No. 12, 1994 “Discrimination (Employment and Occupation) Convention” means the Discrimination (Employment and Occupation) Convention 1958 (the English text of which is set out in Schedule 4); “Discrimination (Employment and Occupation) Recommendation” means the Discrimination (Employment and Occupation) Recommendation 1958 (the English text of which is set out in Schedule 7); “discriminatory provision” means a provision about employment that discriminates against an employee on the basis of— (a) an attribute for which discrimination is prohibited under the Anti-Discrimination Act 1991 ; or (b) family responsibilities; but does not include a provision that— (c) discriminates on the basis of the inherent requirements of the employment; or (d) discriminates— (i) for an institution conducted to conform with the doctrines, tenets, beliefs or teachings of a particular religion or creed—about staff membership on the basis of the doctrines, tenets, beliefs or teachings; and (ii) in good faith to avoid injury to the religious susceptibilities of adherents of the religion or creed; or (e) discriminates by remunerating a young employee according to the employee’s age; “Economic, Social and Cultural Rights Covenant” means the International Covenant on Economic, Social and Cultural Rights (the English text of the Preamble, and Parts II and III of which is set out in Schedule 5); “enterprise flexibility agreement” means an agreement approved for implementation under Part 10A, Division 3 that is in force or an enterprise flexibility agreement as amended under the Division; “Equal Remuneration Convention” means the Equal Remuneration Convention 1951 (the English text of which is set out in Schedule 2);

17 Industrial Relations Reform No. 12, 1994 “Equal Remuneration Recommendation” means the Equal Remuneration Recommendation 1951 (the English text of which is set out in Schedule 6); “Family Responsibilities Convention” means the Workers with Family Responsibilities Convention 1981 (the English text of which is set out in Schedule 8); “Family Responsibilities Recommendation” means the Workers with Family Responsibilities Recommendation 1981 (the English text of which is set out in Schedule 9); “Full Bench” means the Full Bench of the Commission; “industrial action” means a lockout or strike; “Minimum Wages Convention” means the Minimum Wage Fixing Convention 1970 (the English text of which is set out in Schedule 1); “paid rates award” means an award that specifies actual entitlements, rather than minimum entitlements, for wages and employment conditions; “Termination of Employment Convention” means the Termination of Employment Convention 1982 (the English text of which is set out in Schedule 10); ’. (3) Section 5(1), definition “decision” , after ‘approved’— insert ‘ , approved for implementation ’. ˙ Insertion of new ss 30A and 30B 5. After section 30 (in Division 1)— insert— ˙ ‘Performance of Commission’s functions (s 90AA Cwlth) ‘30A.(1) The Commission must perform its functions under any provision of this Act in a way that furthers the objects of this Act relevant to the provision. ‘(2) In performing the functions, the Commission must— (a) ensure, so far as it can, that the system of awards provides for secure, relevant and consistent wages and employment

18 Industrial Relations Reform No. 12, 1994 conditions; and (b) have proper regard to the interests of the parties immediately concerned and of the community as a whole; and (c) take into account the principles embodied in the Family Responsibility Convention, particularly those about— (i) preventing discrimination against workers who have family responsibilities; or (ii) helping workers to reconcile their employment and family responsibilities. ‘(3) To avoid doubt, it is declared that changes necessary to maintain wages and employment conditions at a relevant level— (a) may be implemented in stages to achieve consistency over a period; and (b) may be made on condition that relevant parties comply with principles established by the Commission. ˙ ‘Commission decisions to be in plain English (s 143(2A) Cwlth) ‘30B. The Commission must ensure that its written decisions are— (a) written in plain English; and (b) structured in a way that is as easy to understand as the subject matter allows. ’. ˙ Insertion of new Divs 4–7 in Pt 4 (Industrial Relations Commission) 6. In Part 4— insert— ‘Division 4—Minimum wages ˙ ‘Object of Division (s 170AA Cwlth) ‘49AA. The object of this Division is to give effect to the Minimum Wages Convention.

19 Industrial Relations Reform No. 12, 1994 ˙ ‘Meaning of expressions (s 170AB Cwlth) ‘49AB. If an expression used in this Division is also used in the Minimum Wages Convention, it has the same meaning as in the Convention. ˙ ‘Orders setting minimum wages (s 170AC Cwlth) ‘49AC. The Commission may make an order setting— (a) the same minimum wage for all employees in a specified group; or (b) different minimum wages for different categories of employees in a specified group. ˙ ‘Orders only on application (s 170AD Cwlth) ‘49AD. The Commission may make an order under this Division only if it has received an application from— (a) an employee to be covered by the order; or (b) an industrial organisation whose rules entitle it to represent the industrial interests of employees to be covered by the order. ˙ ‘When Commission may make order (s 170AE Cwlth) ‘49AE.(1) The Commission must, and may only, make an order if satisfied— (a) coverage by a system of minimum wages is appropriate, given the employment conditions of the group of employees to be covered by the order; and (b) the order will operate for at least some of the employees in the specified group having regard to employees ineligible under subsection (3). ‘(2) An order must specify which of the group’s employees are excluded from its operation because they are ineligible. ‘(3) An employee is ineligible only if—

20 Industrial Relations Reform No. 12, 1994 (a) minimum wages for the employee are set by an award, industrial agreement, certified agreement or enterprise flexibility agreement; or (b) proceedings have been commenced under Part 10 or Part 10A for the setting or adjustment of minimum wages for the employee. ‘(4) Before deciding which group an order should cover, and whether it is satisfied under subsection (1)(a), the Commission must— (a) give the following organisations an opportunity to express their views— (i) an industrial organisation whose rules entitle it to represent the industrial interests of any of the employees concerned; (ii) an industrial organisation whose rules entitle it to represent the industrial interests of employers of the employees; (iii) another organisation representing employers of the employees; and (b) take the views into account. ‘(5) Before making an order, the Commission must give each employer of employees in the group to be covered by the order an opportunity, as prescribed by regulation, to be heard about the making of the order. ˙ ‘Matters to be considered when setting minimum wages (s 170AF Cwlth) ‘49AF. When setting minimum wages under this Division, the Commission must consider— (a) the principles it would apply when setting minimum wages under Part 10; and (b) the needs of workers and their families, taking into account the general level of wages, the cost of living, social security benefits and the relative living standards of other social groups; and (c) economic factors, including the requirements of economic development, levels of productivity and the desirability of reaching and keeping a high level of employment.

21 Industrial Relations Reform No. 12, 1994 ˙ ‘Division does not limit other rights (s 170AG Cwlth) ‘49AG. This Division does not limit any right a person or industrial organisation may otherwise have to establish minimum wages. ‘Division 5—Equal remuneration for work of equal value ˙ ‘Object of Division (s 170BA Cwlth) ‘49BA. The object of this Division is to give effect to— (a) the Anti-Discrimination Conventions; and (b) the Equal Remuneration Recommendation; and (c) the Discrimination (Employment and Recommendation. Occupation) ˙ ‘Meaning of expressions (s 170BB Cwlth) ‘49BB.(1) In this Division— “equal remuneration for work of equal value” means equal remuneration for men and women workers for work of equal value. ‘(2) If an expression used in this Division is also used in the Equal Remuneration Convention, it has the same meaning as in the Convention. ˙ ‘Orders requiring equal remuneration (s 170BC Cwlth) ‘49BC.(1) The Commission may make any order it considers appropriate to ensure employees covered by the order will receive equal remuneration for work of equal value. ‘(2) An order may provide for an increase in remuneration rates, including minimum rates. ˙ ‘Orders only on application (s 170BD Cwlth) ‘49BD. The Commission may make an order under this Division only if it has received an application from—

22 Industrial Relations Reform No. 12, 1994 (a) an employee to be covered by the order; or (b) an industrial organisation whose rules entitle it to represent the industrial interests of employees to be covered by the order; or (c) the Anti-Discrimination Commissioner. ˙ ‘When Commission must and may only make order (s 170BC Cwlth) ‘49BE. The Commission must, and may only, make an order if— (a) it is satisfied the employees to be covered by the order do not receive equal remuneration for work of equal value; and (b) the order can reasonably be regarded as appropriate and as giving effect to— (i) 1 or more of the Anti-Discrimination Conventions; or (ii) the Equal Remuneration Recommendation; or (iii) the Discrimination (Employment and Occupation) Recommendation. ˙ ‘Immediate or progressive introduction of equal remuneration (s 170BF Cwlth) ‘49BF. The order may introduce equal remuneration for work of equal value— (a) immediately; or (b) progressively, in specified stages. ˙ ‘Employer not to reduce remuneration (s 170BG Cwlth) ‘49BG.(1) An employer must not reduce an employee’s remuneration because an application or order has been made under this Division. ‘(2) If an employer purports to do so, the reduction is of no effect. ˙ ‘Division does not limit other rights (s 170BH Cwlth) ‘49BH. This Division does not limit any right a person or industrial

23 Industrial Relations Reform No. 12, 1994 organisation may otherwise have to secure equal remuneration for work of equal value. ‘Division 6—Further provisions about orders under Division 4 or 5 ˙ ‘Orders to be written (s 170JA Cwlth) ‘49CA. An order of the Commission under Division 4 or 5 must be written. ˙ ‘When orders take effect (s 170JB Cwlth) ‘49CB. An order of the Commission under Division 4 or 5 takes effect from the date of the order or a later specified date. ˙ ‘Compliance with orders (s 170JC Cwlth) ‘49CC. An order of the Commission under Division 4 or 5 is enforceable in the same way as an award. ˙ ‘Amendment and revocation of orders (s 170JD Cwlth) ‘49CD. The Commission may amend or revoke an order under Division 4 or 5 only if it has received an application from any of the following persons (whether or not named or described in the order)— (a) an employer, or representative of an employer, covered by the order; (b) an employee, or representative of any employee, covered by the order. ˙ ‘Inconsistent awards or orders (s 170JG Cwlth) ‘49CE. An award, industrial agreement, certified agreement, enterprise flexibility agreement or order of the Commission that is inconsistent with an order under Division 4 or 5 does not apply to the extent the inconsistency detrimentally affects the rights of the employees concerned.

24 Industrial Relations Reform No. 12, 1994 ‘Division 7—Industry consultative councils ˙ ‘Industry consultative councils (s 133 Cwlth) ‘49D.(1) In this section— “industry” includes— (a) a business, trade, manufacture, undertaking or calling of employers; and (b) a calling, service, employment, handicraft, industrial occupation or vocation of employees; and (c) a branch of an industry and a group of industries. ‘(2) The Commission must encourage and assist the establishment and effective operation of consultative councils for particular industries. ‘(3) The Commission must encourage the participants in an industry to use the relevant consultative council— (a) to develop measures to improve efficiency and competitiveness in the industry; and (b) to address barriers to workplace reform in the industry. ‘(4) To promote the effective operation of a consultative council for an industry, a Commissioner may, if the Chief Industrial Commissioner agrees— (a) chair the council’s meetings; or (b) take part in the council’s discussions; or (c) nominate another Commission member to chair the council’s meetings or take part in its discussions. ‘(5) The Chief Industrial Commissioner may agree only if the Chief Industrial Commissioner is satisfied the council properly represents— (a) industrial organisations, and associations, of employers in the industry; and (b) industrial organisations of employees in the industry. ’.

25 Industrial Relations Reform No. 12, 1994 ˙ Amendment of s 70 (Basis of procedures and decisions of the Commission and Industrial Magistrates) 7. Section 70(3), before paragraph (a)— insert— ‘ (aa)the objects of this Act; and ’. ˙ Amendment of s 83 (Representation of parties) 8. Section 83(1)(d)(ii)— omit, insert— ‘ (ii) with the Commission’s leave if the Commission considers representation by counsel or solicitor is desirable for the effective conduct of the proceedings and the proceedings are— (A) for the exercise of the Commission’s powers under section 39; or (B) about the rules of an industrial organisation, or an association seeking registration as an industrial organisation; or ’. ˙ Replacement of s 89 (Enforcement of Commission’s orders) 9. Section 89— omit, insert— ˙ ‘Enforcement of Commission’s orders ‘89.(1) The Commission may make an order about an industrial dispute directed to— (a) an industrial organisation; or (b) a person in a capacity as an officer or agent of an industrial organisation; or (c) another person. ‘(2) If an order may be directed either to an industrial organisation or a person, the Commission may make an order directed to the person only

26 Industrial Relations Reform No. 12, 1994 after considering whether it would be more appropriate to direct the order against the industrial organisation. ‘(3) An order must specify— (a) a time for complying with the order; and (b) if the order is made against a person—the person’s name. ‘(4) The Commission may extend the specified time. ‘(5) If a party to the industrial dispute considers the industrial organisation or person has not substantially complied with the order, the party may cause a notice to be issued under the rules of court calling on the industrial organisation or person to show cause to the Full Industrial Court at a specified time why the industrial organisation or person should not be dealt with under section 90. ’. ˙ Amendment of Pt 10 (Awards and industrial agreements) 10.(1) Part 10, before Division 1— insert— ‘Division 1—The award system ‘Subdivision 1—Objects of Division ˙ ‘Objects of Division (Cwlth s 88A) ‘105A. The objects of this Division are to ensure— (a) employees are protected by— (i) awards setting fair and enforceable minimum wages and employment conditions that are kept at a relevant level; and (ii) in appropriate cases, by paid rates awards setting fair and enforceable wages and employment conditions that are kept at a relevant level; and (b) awards (other than paid rates awards) act as a safety net of minimum wages and employment conditions underpinning direct bargaining; and

27 Industrial Relations Reform No. 12, 1994 (c) awards are suited to the efficient performance of work according to the needs of particular industries and enterprises, while employees’ interests are properly taken into account; and (d) when making, reviewing and amending awards, regard is had to stable and appropriate relativities based on skill, responsibility, the conditions under which work is performed, and the need for skill-based career paths; and (e) the Commission’s functions and powers in relation to making and amending awards are performed and exercised in a way that gives employees prompt access to fair and enforceable minimum wages and employment conditions, so far as they do not already have them. ’. (2) Part 10, Division 1— renumber as Subdivision 2. (3) Part 10, Division 2— omit, insert— ‘Subdivision 3—Paid rates awards ˙ ‘Objects of Subdivision (s 170SA Cwlth) ‘108A. The objects of this Subdivision are to ensure that— (a) in appropriate cases, employees are protected by paid rates awards setting fair and enforceable wages and employment conditions that are kept at a relevant level; and (b) paid rates 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. ˙ ‘Making or amending paid rates awards (s 170UB Cwlth) ‘108B.(1) This section applies if— (a) the Commission proposes— (i) to make a new award covering employees of a particular kind in an industry; or

28 Industrial Relations Reform No. 12, 1994 (ii) to amend an existing award to cover employees of a particular kind in an industry; and (b) the employees’ wages and employment conditions, so far as they have customarily been decided by an award, have been decided by a paid rates award. ‘(2) The Commission must— (a) make the new award as a paid rates award; or (b) amend the existing award to be a paid rates award; so far as the award decides the employees’ wages and employment conditions that have customarily been decided by a paid rates award. ‘(3) However, the Commission need not do so if— (a) it considers the matters that would be dealt with by the proposed award would be more appropriately dealt with by a certified agreement or an enterprise flexibility agreement; or (b) there is a reasonable prospect of the matters, that would be dealt with by the proposed award, being dealt with by a certified agreement or an enterprise flexibility agreement; or (c) it is satisfied that it would be against the public interest; or (d) the parties to the proposed award, or the award as proposed to be amended, have agreed to the award not being a paid rates award. ˙ ‘Commission to maintain existing paid rates awards (s 170UC Cwlth) ‘108C.(1) The Commission must maintain and amend existing paid rates awards, having regard to the objects of this Division and the Commission’s functions under section 30A(2). ‘(2) However, the Commission need not act under subsection (1) so far as the Commission is satisfied it is against the public interest. ‘(3) Section 30A(2)(a) does not require the Commission to ensure paid rates awards are consistent with awards that are not paid rates awards.

29 Industrial Relations Reform No. 12, 1994 ˙ ‘Party acting inconsistently with award’s status as a paid rates award (s 170UD Cwlth) ‘108D. The Commission may— (a) cancel a paid rates award and replace it with an award that is not a paid rates award; or (b) amend a paid rates award to stop it being a paid rates award; if the Commission is satisfied, after giving the parties to the award an opportunity to be heard, that the party has acted in a way so inconsistent with the award as to make it inappropriate for the award to continue as a paid rates award. ˙ ‘Statement identifying paid rates award (s 170UE Cwlth) ‘108E.(1) The Commission must include in a new paid rates award a statement that the award is a paid rates award. ‘(2) If the Commission amends— (a) an existing paid rates award; or (b) an existing award so that it becomes a paid rates award; the Commission must include in the amended award a statement that the award is a paid rates award, unless the award already contains the statement. ‘(3) If the Commission amends an award to stop it being a paid rates award, it must remove the statement from the award. ‘(4) This section does not affect the validity of an award or amendment. ’. ˙ Amendment of s 128 (Persons bound by agreement) 11. Section 128— insert— ‘(2) In this section— “party” to an industrial agreement includes an employer who is a successor, assignee or transmittee (whether immediate or not) to or of the whole or part of the party’s business, including a corporation that has acquired or taken over the whole or part of the party’s business. ’.

30 Industrial Relations Reform No. 12, 1994 ˙ Amendment of s 131 (Powers of Commission re awards) 12. Section 131— insert— ‘(4) The Commission may refrain from hearing, further hearing, or deciding an application to amend an award while— (a) it considers that, in all the circumstances, the parties concerned should try to negotiate a certified agreement or enterprise flexibility agreement to deal with the subject matter of the proposed amendment; and (b) it is satisfied that there is a reasonable prospect of the parties making the agreement. ’. ˙ Insertion of new ss 131A and 131B 13. After section 131— insert— ˙ ‘Commission to include enterprise flexibility provisions in awards (s 113A Cwlth) ‘131A.(1) This section applies when the Commission makes or amends an award. ‘(2) If it considers it appropriate, the Commission must include in the award a provision establishing a process for negotiating agreements at the enterprise or workplace level about how the award should be amended to make the enterprise or workplace operate more efficiently according to its particular needs. ˙ ‘Amendment of award to give effect to agreement negotiated under enterprise flexibility provision (s 113B Cwlth) ‘131B.(1) This section applies if an application is made for the amendment of an award, as it applies to an enterprise or workplace, to give effect to an agreement made under a provision included in the award under section 131A. ‘(2) The Commission may amend the award only if it is satisfied the

31 Industrial Relations Reform No. 12, 1994 amendment would not disadvantage the employees who would be affected by the amendment in relation to their employment conditions. ‘(3) An amendment disadvantages employees in relation to their employment conditions only if— (a) it would result in the reduction of the employees’ entitlements or protection under the award, another award or an industrial agreement; and (b) in the context of their employment conditions considered as a whole, the Commission considers the reduction is against the public interest. ‘(4) Each industrial organisation of employees that is a party to the award may be heard on the application. ‘(5) The Commission must not refuse to amend the award merely because an industrial organisation refuses to agree or consent to the amendment, if the Commission is satisfied the refusal is unreasonable. ’. ˙ Insertion of new s 134A 14. Before section 135 (in Division 5)— insert— ˙ ‘Commission must review awards and industrial agreements (s 150A Cwlth) ‘134A.(1) Each award or industrial agreement in force must be reviewed by the Commission— (a) within 3 years after— (i) it was made; or (ii) if it was made before the commencement of this section—the commencement; and (b) within 3 years after it was last reviewed under this section. ‘(2) After reviewing an award or industrial agreement, the Commission must take the steps that may be prescribed by regulation to remedy any of the following deficiencies found by it— (a) for an award or industrial agreement—

32 Industrial Relations Reform No. 12, 1994 (i) the award or industrial agreement contains a discriminatory provision; (ii) the award or industrial agreement contains obsolete or dated provisions; (iii) the award or industrial agreement is not structured in a way that is as easy to understand as the subject matter allows; (iv) the award or industrial agreement prescribes matters in unnecessary detail; (b) for an award— (i) the award’s terms are no longer appropriate having regard to the Commission’s function under section 30A(2)(a) to ensure the system of awards provides for secure, relevant and consistent wages and employment conditions; (ii) the award is not written in plain English; (c) for an industrial agreement—the agreement’s terms no longer provide for secure, relevant and consistent wages and employment conditions. ‘(3) The steps prescribed may include amending the award or industrial agreement after giving a party to the award or industrial agreement who has a genuine interest in the matter an opportunity to be heard. ’. ˙ Insertion of new Pt 10A 15. After Part 10— insert— ‘PART 10A—PROMOTING BARGAINING AND FACILITATING AGREEMENTS ‘Division 1—Objects and interpretation ˙ ‘Objects of Part (s 170LA Cwlth) ‘139AA.(1) The objects of this Part are—

33 Industrial Relations Reform No. 12, 1994 (a) to promote bargaining and assist agreements that will assist labour market reform by encouraging— (i) single bargaining units; and (ii) workplace bargaining directed at increased productivity; and (iii) continuous improvement in the workplace; and (iv) the achievement in the workplace of best practice, increased work satisfaction and career opportunities; and (b) to encourage the use of agreements, particularly at the enterprise or workplace 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) Section 70(3) does not apply to the performance of the Commission’s functions under this Part. ‘(4) The Commission’s functions under this Part may be performed by an Industrial Commissioner. ˙ ‘Definitions (s 170LB Cwlth) ‘139AB. In this Part— “eligible union” , for an agreement that applies to an enterprise carried on by an employer, means an industrial organisation of employees— (a) that is a party to an award or industrial agreement binding the employer for work performed in the enterprise; and (b) of which 1 or more employees whom the employer employs to perform work in the enterprise are members; “employer” in Division 3 includes 2 or more employers carrying on a business as a joint venture or common enterprise; “enterprise” means— (a) a business carried on by a single employer; or (b) a geographically distinct part of the business; or (c) 2 or more geographically distinct parts of the same business

34 Industrial Relations Reform No. 12, 1994 carried on by a single employer; “negotiating party” in Division 3 means the initiating party and the other proposed party mentioned in section 139DD; “part” of a single business includes— (a) a geographically distinct part of the single business; or (b) a distinct operational or organisational unit within the single business; “party” to an agreement includes an employer who is a successor, assignee or transmittee (whether immediate or not) to or of the whole or part of a party’s business, including a corporation that has acquired or taken over the whole or part of the party’s business; “period of the agreement” means the period of operation of the agreement specified in the agreement or the period as extended under either of the following sections— • section 139BK (Extension of certified agreements) • section 139CJ (Extension of enterprise flexibility agreements); “relevant industrial matter” in Division 4 means an industrial matter that is the subject of negotiations; “single business” means— (a) a business carried on by a single employer; or (b) a business carried on by 2 or more employers as a joint venture or common enterprise; or (c) a single project or undertaking; or (d) activities carried on by— (i) the State; or (ii) a body, association, office or other entity established for a public purpose under a State law; or (iii) another body in which the State has a controlling interest; “single enterprise” means— (a) a single business; or

35 Industrial Relations Reform No. 12, 1994 (b) part of a single business; or (c) a single workplace. ‘Division 2—Certified agreements ˙ ‘Certified agreements (s 170MA Cwlth) ‘139BA.(1) An employer or an industrial organisation of employers and an industrial organisation of employees may make a memorandum of agreement between them about an industrial matter. ‘(2) The parties to the agreement must apply to the Commission to certify the agreement. ˙ ‘Organisations entitled to be heard (s 170MB Cwlth) ‘139BB.(1) An industrial organisation of employees is entitled to be heard on an application to the Commission to certify an agreement, or to approve an extension or amendment of a certified agreement, applying to a single enterprise if— (a) the organisation is entitled to represent the industrial interests of the organisation’s members who are employed by an employer who is a party to the agreement to perform work in the single enterprise; or (b) the organisation— (i) is bound by an award that binds the employer for work performed in the single enterprise; and (ii) can show it has a genuine interest in the application. ‘(2) As soon as practicable after the application is made, the Commission must notify, as prescribed by regulation, each industrial organisation entitled to be heard that— (a) the application has been made; and (b) the industrial organisation is entitled to be heard on the application. ‘(3) This section does not affect another right of an industrial organisation

36 Industrial Relations Reform No. 12, 1994 of employees or of another entity to intervene or be heard, or apply to intervene or be heard, on an application. ˙ ‘Certification of agreements (s 170MC Cwlth) ‘139BC.(1) The Commission must, and may only, certify an agreement if satisfied— (a) the agreement does not disadvantage the employees covered by the agreement in relation to their employment conditions; and (b) the agreement includes procedures for preventing and settling disputes between the employers and employees covered by the agreement about matters arising under the agreement; and (c) the agreement either— (i) establishes a process for the parties to the agreement to consult each other about changes to the organisation or performance of work in any workplace to which the agreement relates; or (ii) states that it is not appropriate for the agreement to provide for the consultation; and (d) during the negotiations for the agreement, reasonable steps were taken to consult the employees covered by the agreement about the agreement; and (e) before the application for certification was made, reasonable steps were taken to inform the employees covered by the agreement of— (i) the agreement’s terms; and (ii) the effect of the terms; and (iii) in particular, the procedures mentioned in paragraph (b); and (iv) the intention to apply to the Commission to certify the agreement, and about the consequences of certification; and (f) if the agreement applies only to a single enterprise— (i) subject to subsections (4) and (5), the parties to the agreement include each industrial organisation of employees

37 Industrial Relations Reform No. 12, 1994 that— (A) is a party to the award or industrial agreement binding the employer; or (B) if no award or industrial agreement binds the employer—is entitled to represent the industrial interests of the employees who are covered by the agreement; and (ii) the agreement has been negotiated— (A) on the one hand, by each employer concerned or the employer’s representative; and (B) on the other hand, by a person representing all the other parties to the agreement; and (g) the agreement specifies its period of operation. ‘(2) Under subsection (1)(a), an agreement disadvantages employees in relation to their employment conditions only if— (a) certification of the agreement— (i) would result in the reduction of the employees’ entitlements or protection under an award or industrial agreement that binds the employer; or (ii) if no award or industrial agreement binds the employer—would not provide employee entitlements or protection at least equal to the employees’ entitlements or protection under an appropriate award or industrial agreement nominated in the agreement; and (b) in the context of the employment conditions considered as a whole, the Commission considers the reduction is against the public interest. ‘(3) Subsection (1)(d) and (e) does not apply if the Commission is satisfied— (a) the agreement applies only to a new business, project or undertaking; and (b) when the application for certification was made, no-one had been employed for the business, project or undertaking.

38 Industrial Relations Reform No. 12, 1994 ‘(4) Subsection (1)(f)(i) does not apply if the Commission is satisfied— (a) each industrial organisation of employees mentioned in the subsection has been given the opportunity to be a party to the agreement; and (b) at least 1 of the industrial organisations is a party to the agreement; and (c) the agreement is in the interests of the employees whose employment is covered by the agreement. ‘(5) Subsection (1)(f)(i) does not apply to an industrial organisation of employees if none of its members is employed in the single enterprise concerned. ˙ ‘When Commission must refuse to certify agreements (s 170MD Cwlth) ‘139BD.(1) The Commission may refuse to certify an agreement other than an agreement applying only to a single enterprise if it considers certifying the agreement would be against the public interest. ‘(2) The Commission must not certify an agreement if it considers a provision of the agreement is inconsistent with— (a) a provision of Part 4, Divisions 2 and 3 and Part 11, Division 4; or (b) a Commission order under those Divisions. ‘(3) The Commission must not certify an agreement if satisfied— (a) an employer has, in connection with negotiating the agreement, contravened 1 or more of the following sections— • section 139FA (Employer not to discriminate between union members and non-union members when negotiating agreements) • section 342 (Prejudice of employee by reason of membership of industrial organisation) • section 343 (Prejudice of employee by reason of non-membership of industrial organisation)

39 Industrial Relations Reform No. 12, 1994 • section 344 (Conduct in relation to holder of conscientious objector’s certificate); or (b) the employer has caused an entity, in connection with negotiations for the agreement, to engage in conduct that, had the employer engaged in it, would be a contravention by the employer of any of the sections mentioned in paragraph (a); or (c) an entity has, for the employer— (i) engaged in the conduct mentioned in paragraph (b); or (ii) caused another entity to engage in the conduct. ‘(4) Subsection (3) does not apply if the Commission is satisfied the contravention or conduct, and its effects, have been fully remedied. ‘(5) The Commission must not certify an agreement if it considers the agreement contains a discriminatory provision. ‘(6) The Commission may refuse to certify an agreement if it considers the agreement applies only to a part of a single business that— (a) is neither a geographically distinct part of the single business nor a distinct operational or organisational unit within the single business; and (b) is defined by the agreement so that the agreement will not cover employees it could reasonably cover, having regard to— (i) the nature of the work performed by the employees covered by the agreement; and (ii) the organisational and operational relationships between the part and the rest of the single business; and (c) it is unfair for the agreement not to cover the employees. ‘(7) This section applies despite section 139BC. ˙ ‘How agreement may provide for amendment (s 170ME Cwlth) ‘139BE.(1) If an agreement provides for any of its terms to be amended by a later agreement, the Commission may certify the agreement only if satisfied the agreement— (a) specifies the amendable terms and when and how they can be

40 Industrial Relations Reform No. 12, 1994 amended; and (b) provides that an amendment has effect only if— (i) it is agreed to by all the parties who are bound by the agreement when the amendment is made; and (ii) it is approved by the Commission under section 139BM. ‘(2) To avoid doubt, it is declared that subsection (1) does not apply to an agreement so far as the obligations under the agreement can change, because of the agreement’s terms, without the need for a later agreeement between the parties. ˙ ‘Other options open to Commission instead of refusing to certify agreement (s 170MF Cwlth) ‘139BF.(1) This section applies if the Commission has grounds not to certify an agreement under any of the following sections— • section 139BC (Certification of agreements) • section 139BD (When Commission to refuse to certify agreements) • section 139BE (How agreement may provide for amendment). ‘(2) The Commission may accept an undertaking about the agreement’s operation from 1 or more of the parties. ‘(3) The Commission may certify the agreement if satisfied the undertaking meets its concerns. ‘(4) If the undertaking is not complied with, the Commission may terminate the agreement after giving the parties an opportunity to be heard. ‘(5) In any case, before refusing to certify the agreement, the Commission must give the parties an opportunity— (a) to amend the agreement; or (b) to do what is necessary for the Commission to be able to certify the agreement.

41 Industrial Relations Reform No. 12, 1994 ˙ ‘Commission to protect interests of certain employees (s 170MG Cwlth) ‘139BG.(1) The Commission must comply with this section in performing its functions and exercising its powers about an application to certify an agreement. ‘(2) The Commission must identify the employees who may be covered by the agreement but whose interests may not have been sufficiently taken into account in the negotiations for, or the terms of, the agreement. ‘(3) Examples of employees whose interest may not have been taken into account are— (a) women; and (b) persons whose first language is not English; and (c) young persons. ‘(4) When deciding whether it is satisfied under section 139BC(1)(d) and (e), the Commission must do whatever is necessary to find out— (a) whether the employees were consulted about the agreement and informed of the matters mentioned in section 139BC(1)(e) in ways appropriate to their particular circumstances and needs; and (b) in particular, whether the effects on the relevant employees of the agreement’s terms were properly explained to the employees. ‘(5) If it considers there has been a failure to consult or explain as mentioned in subsection (4), the Commission must make the orders it considers necessary to remedy the failure and its effects. ˙ ‘Procedures for preventing and settling disputes (s 170MH Cwlth) ‘139BH. Dispute prevention and settling provisions in a certified agreement may empower the Commission to settle disputes, if the Commission approves of the provisions. ˙ ‘Operation of certified agreements (s 170MI Cwlth) ‘139BI.(1) A certified agreement comes into force when it is certified. ‘(2) A certified agreement remains in force unless—

42 Industrial Relations Reform No. 12, 1994 (a) it is terminated by the Commission under section 139BF(4); or (b) because of 1 or more orders or declarations under the relevant sections— (i) it is terminated; or (ii) all the remaining parties to the agreement are industrial organisations of employees; or (iii) all the remaining parties to the agreement are employers or industrial organisations of employers; or (c) it is amended by the parties, other than under section 139BN(4)(c); or (d) it is replaced by a new certified agreement or by an enterprise flexibility agreement. ‘(3) In this section— “relevant sections” means— • section 139BN (Certified agreements may be amended or terminated by Full Bench) • section 139BP (Certified agreements may be terminated by parties) • section139BQA (Party affected by industrial action may withdraw). ˙ ‘Party may retire from a certified agreement ‘139BJ.(1) A party to a certified agreement may file in the Industrial Registrar’s office a notice of intention to retire from the agreement at the end of a specified period of at least 30 days from the day of filing. ‘(2) The notice must be filed— (a) within 30 days before the end of the period of the agreement; or (b) if the agreement remains in force after the end of the period of the agreement because of section 139B1(2)—while the agreement remains in force because of section 139B1(2). ‘(3) At the end of the specified period, the party who filed the notice ceases to be a party to the certified agreement.

43 Industrial Relations Reform No. 12, 1994 ˙ ‘Extension of certified agreements (s 170MJ Cwlth) ‘139BK.(1) The period of a certified agreement may be extended if— (a) the parties agree to the extension; and (b) before the end of the period of operation of the agreement or the period as last extended under this section— (i) if the agreement applies only to a single enterprise—1 or more of the parties apply to the Commission to approve the extension; or (ii) otherwise—1 or more of the parties notify the Commission of the extension. ‘(2) If an application is made under subsection (1)(b)(i), the extension has effect at least until the application is decided, even if that happens after the period mentioned in subsection (1)(b). ‘(3) The Commission must approve the extension unless an industrial organisation of employees, entitled under section 139BB to be heard, satisfies the Commission the extension would not be in the interests of the employees covered by the agreement. ‘(4) If that happens, the Commission must not approve the extension. ˙ ‘Effect of certified agreements (s 170MK Cwlth) ‘139BL. While a certified agreement is in force— (a) subject to paragraph (b), the agreement’s terms prevail over the terms of an award or industrial agreement to the extent of the inconsistency; and (b) the agreement has no effect so far as it is inconsistent with an enterprise flexibility agreement approved for implementation before the agreement was certified; and (c) a term of the agreement can be amended by the parties, but only as provided in either of the following sections— • section 139BM (Amendment of certified agreement as provided in the agreement) • section 139BN (Certified agreements may be amended or

44 Industrial Relations Reform No. 12, 1994 terminated by Full Bench); and (d) the agreement may only be amended to remove ambiguity or uncertainty; and (e) the Commission may not exercise powers to amend the agreement other than under this Division. ˙ ‘Amendment of certified agreement as provided in the agreement (s 170ML Cwlth) ‘139BM.(1) If a certified agreement provides for any of its terms to be amended by a later agreement, the amendment takes effect only if approved by the Commission on application by the parties bound by the agreement when the amendment was made. ‘(2) The Commission must, and may only, approve the amendment if satisfied— (a) the amendment was made as required by the agreement; and (b) the amendment has been agreed to by all parties bound by the agreement when the amendment was made; and (c) the Commission would have no grounds under a relevant section to refuse to certify the agreement as amended if— (i) the application for approval were an application to the Commission to certify the agreement as amended; and (ii) the agreement as in force before the amendment takes effect were not in force. ‘(3) In this section— “relevant section” means 1 of the following— • section 139BC (Certification of agreements) • section 139BD (When Commission must refuse to certify agreements). ‘Procedure if grounds to refuse amendments exist (s 170ML Cwlth) ‘139BMA.(1) This section applies if the Commission has grounds to refuse to approve the amendment of a certified agreement under

45 Industrial Relations Reform No. 12, 1994 section 139BM (Amendment of certified agreement as provided in the agreement). ‘(2) The Commission may accept an undertaking from 1 or more of the parties about the agreement’s operation as amended and, if it is satisfied the undertaking meets the Commission’s concerns, may approve the amendment. ‘(3) If an undertaking is not observed, the Commission may set aside the amendment after giving the parties an opportunity to be heard. ‘(4) In any case, before refusing to approve the amendment, the Commission must give the parties an opportunity to do what is necessary for the Commission to be able to approve the amendment. ˙ ‘Certified agreements may be amended or terminated by Full Bench (s 170MM Cwlth) ‘139BN.(1) While a certified agreement is in force, the Full Bench may review the agreement’s operation after giving the parties to the agreement an opportunity to be heard. ‘(2) The Full Bench may do so only— (a) on its own initiative; or (b) on application by a party to the agreement. ‘(3) The remainder of this section applies if the Full Bench finds— (a) for any agreement—that the continued operation of the agreement would be unfair to the employees covered by the agreement; or (b) for an agreement that does not apply only to a single enterprise—that the continued operation of the agreement would be against the public interest. ‘(4) The Full Bench may— (a) terminate the agreement; or (b) accept an undertaking about the agreement’s operation; or (c) permit the parties to amend the agreement. ‘(5) If an undertaking is not complied with, the Full Bench may terminate the agreement after giving the parties an opportunity to be heard.

46 Industrial Relations Reform No. 12, 1994 ˙ ‘Review of certified agreements (s 170MM Cwlth) ‘139BO. The Full Bench must review the operation of each certified agreement— (a) within 3 years after— (i) it was made; or (ii) if it was made before the commencement of this section and was not reviewed by the Full Bench before the commencement—the commencement; and (b) within 3 years after it was last reviewed by the Full Bench. ‘Party may withdraw by consent (s 170MN Cwlth) ‘139BPA.(1) In this section— “relevant party” to an agreement means— (a) for a party to the agreement who is an employer or an industrial organisation of employers—a party who is an industrial organisation of employees; or (b) for a party to the agreement who is an industrial organisation of employees—a party who is an employer or an industrial organisation of employers. ‘(2) A party to a certified agreement may, with the consent of all the relevant parties, notify the Commission that the party does not want to remain bound by the agreement. ‘(3) The Commission may declare that the notifier is no longer bound if satisfied that it is in the public interest to make the declaration. ˙ ‘Certified agreements may be terminated by parties (s 170MN Cwlth) ‘139BP.(1) All the parties to a certified agreement may jointly notify the Commission that they want the agreement to be terminated. ‘(2) The Commission may declare that the agreement is terminated if satisfied that it is in the public interest to make the declaration.

47 Industrial Relations Reform No. 12, 1994 ‘Party affected by industrial action may withdraw (s 170MM Cwlth) ‘139BQA.(1) If a party to a certified agreement engages in industrial action about a matter dealt with in the agreement, another party affected by the industrial action may apply to the Commission for a declaration that the applicant is no longer bound by the agreement. ‘(2) The Commission may declare that the applicant is no longer bound if satisfied it is in the public interest to make the declaration. ˙ ‘Enforcement of certified agreements ‘139BQ. An agreement certified under this Division is enforceable in the same way as an award. ‘Division 3—Enterprise flexibility agreements ˙ ‘Employer may apply for approval of implementation of enterprise flexibility agreement (s 170NA Cwlth) ‘139CA.(1) An employer carrying on an enterprise may prepare an agreement about an industrial matter relating to the enterprise. ‘(2) The employer may apply to the Commission to approve implementation of the agreement. ˙ ‘Organisations entitled to be heard (s 170NB Cwlth) ‘139CB.(1) On an application to the Commission— (a) to approve implementation of an agreement; or (b) to extend an enterprise flexibility agreement’s period of operation; an industrial organisation of employees is entitled to be heard if it is bound by an award or industrial agreement that binds the employer for work performed in the enterprise. ‘(2) As soon as practicable after the application is made, the Commission must notify (as prescribed by regulation) each industrial organisation of employees entitled to be heard that—

48 Industrial Relations Reform No. 12, 1994 (a) the application has been made; and (b) the industrial organisation is entitled to be heard on the application. ‘(3) This section does not affect any other right of an industrial organisation of employees or another entity to intervene or be heard, or to apply to intervene or be heard, on an application. ˙ ‘Approval of implementation of agreement (s 170NC Cwlth) ‘139CC.(1) In this section— “majority of employees” means a majority of the persons who were employees covered by the agreement as at the end of a day specified in the application that is not earlier than 7 days before the application was made. ‘(2) The Commission must, and may only, approve implementation of an agreement if satisfied— (a) the agreement applies only to the enterprise mentioned in section 139CA and is only about an industrial matter; and (b) the wages and employment conditions of the employees covered by the agreement are regulated by 1 or more awards or industrial agreements that bind the employer; and (c) the agreement covers all of the employees— (i) whose wages and employment conditions are regulated by 1 or more awards or industrial agreements that bind the employer; and (ii) who the employer employs to perform work in the enterprise; and (d) the agreement does not disadvantage the employees covered by the agreement about their employment conditions; and (e) the agreement includes procedures for preventing and settling disputes between the persons bound by the agreement about matters arising under the agreement; and (f) the agreement either—

49 Industrial Relations Reform No. 12, 1994 (i) establishes a process for the persons bound by the agreement to consult each other about changes to the organisation or performance of work in the enterprise; or (ii) states that it is not appropriate for the agreement to provide for the consultation; and (g) during the negotiations for the agreement, reasonable steps were taken to consult the employees covered by the agreement about the agreement; and (h) before the application for approval was made, reasonable steps were taken to inform the employees covered by the agreement of— (i) the agreement’s terms; and (ii) the effect of the terms; and (iii) in particular, the procedures mentioned in paragraph (e); and (iv) the intention to apply to the Commission to approve implementation, and the consequences of approval; and (i) a majority of employees have (on or before the day specified in the application) genuinely agreed to be bound by the agreement, even if they agreed at different times; and (j) the agreement specifies its period of operation. ‘(3) Under subsection (2)(d), an agreement disadvantages employees in relation to their employment conditions only if— (a) approval of implementation would result in the reduction of the employees’ entitlements or protection under an award or industrial agreement; and (b) in the context of the employment conditions considered as a whole, the Commission considers the reduction is against the public interest. ˙ ‘When Commission must refuse to approve implementation of agreements (s 170ND Cwlth) ‘139CD.(1) The Commission must not approve implementation if it considers a provision of the agreement is inconsistent with—

50 Industrial Relations Reform No. 12, 1994 (a) a provision of Part 4, Division 2 or 3 or Part 11, Division 4; or (b) an order of the Commission under the Divisions. ‘(2) The Commission may refuse to approve implementation if satisfied that approving implementation would be against the public interest because of exceptional circumstances. ‘(3) Approving implementation is not against the public interest merely because the agreement is inconsistent with principles established by the Full Bench that apply when determining wages and employment conditions by awards. ‘(4) The Commission must not approve implementation if satisfied— (a) the employer has, in connection with negotiating the agreement, contravened 1 or more of the following provisions— • section 139FA (Employer not to discriminate between union members and non-union members when negotiating agreements) • section 139ED(3) (Representation of employees in negotiations for enterprise flexibility agreements) • section 342 (Prejudice of employees by reason of membership of industrial organisation) • section 343 (Prejudice of employee by reason of non-membership of industrial organisation) • section 344 (Conduct in relation to holder of conscientious objector’s certificate); or (b) the employer has caused an entity, in connection with negotiations for the agreement, to engage in conduct that, had the employer engaged in it, would be a contravention by the employer of any of the provisions mentioned in paragraph (a); or (c) an entity has, for the employer— (i) engaged in the conduct mentioned in paragraph (b); or (ii) caused another entity to engage in the conduct. ‘(5) Subsection (4) does not apply if the Commission is satisfied the contravention or conduct, and its effects, have been fully remedied.

51 Industrial Relations Reform No. 12, 1994 ‘(6) The Commission may refuse to approve implementation, or may adjourn an application to approve the implementation, if it is satisfied the employer did not— (a) before or as soon as practicable after negotiations for the agreement began, notify each industrial organisation that was at the time an eligible union about the negotiations; or (b) give the industrial organisation a reasonable opportunity to take part in the negotiations and to agree, before the application for approval was made, to be bound by the agreement. ‘(7) Subsection (6) does not apply to an industrial organisation if the employer could not reasonably have known when, or within a reasonable period after, the negotiations for the agreement began that the organisation was an eligible union. ‘(8) When deciding what action to take under subsection (6), the Commission must consider whether it considers the failure was intentional and other relevant circumstances. ‘(9) The Commission must not approve implementation if it considers the agreement contains a discriminatory provision. ‘(10) This section applies despite section 139CC (Approval of implementation of agreement). ˙ ‘How agreement may provide for its amendment (s 170NE Cwlth) ‘139CE.(1) If an agreement provides for any of its terms to be amended by a later agreement applying to the enterprise, the Commission must not approve implementation of the agreement unless satisfied the agreement specifies— (a) the amendable terms; and (b) when and how the terms can be amended. ‘(2) To avoid doubt, it is declared that subsection (1) does not apply to an agreement so far as the obligations under the agreement can change because of the terms of the agreement itself.

204 Industrial Relations Reform No. 12, 1994 terminations on the workers concerned such as finding alternative employment. 2. The applicability of paragraph 1 of this Article may be limited by the methods of implementation referred to in Article 1 of this Convention to cases in which the number of workers whose termination of employment is contemplated is at least a specified number or percentage of the workforce. 3. For the purposes of this Article the term “the workers’ representatives concerned” means the workers’ representatives recognised as such by national law or practice, in conformity with the Workers’ Representatives Convention, 1971. Division B—Notification to the competent authority Article 14 1. When the employer contemplates terminations for reasons of an economic, technological, structural or similar nature, he shall notify, in accordance with national law and practice, the competent authority thereof as early as possible, giving relevant information, including a written statement of the reasons for the terminations, the number and categories of workers likely to be affected and the period over which the terminations are intended to be carried out. 2. National laws or regulations may limit the applicability of paragraph 1 of this Article to cases in which the number of workers whose termination of employment is contemplated is at least a specified number or percentage of the workforce. 3. The employer shall notify the competent authority of the terminations referred to in paragraph 1 of this Article a minimum period of time before carrying out the terminations, such period to be specified by national laws or regulations.

205 Industrial Relations Reform No. 12, 1994 PART IV—FINAL PROVISIONS Article 15 The formal ratifications of this Convention shall be communicated to the Director-General of the International Labour Office for registration. Article 16 1. This Convention shall be binding only upon those Members of the International Labour Organisation whose ratifications have been registered with the Director-General. 2. It shall come into force twelve months after the date on which the ratifications of two Members have been registered with the Director-General. 3. Thereafter, this Convention shall come into force for any Member twelve months after the date on which its ratification has been registered. Article 17 1. A Member which has ratified this Convention may denounce it after the expiration of ten years from the date on which the Convention first comes into force, by an act communicated to the Director-General of the International Labour Office for registration. Such denunciation shall not take effect until one year after the date on which it is registered. 2. Each Member which has ratified this Convention and which does not, within the year following the expiration of the period of ten years mentioned in the preceding paragraph, exercise the right of denunciation provided for in this Article, will be bound for another period of ten years and, thereafter,

206 Industrial Relations Reform No. 12, 1994 may denounce this Convention at the expiration of each period of ten years under the terms provided for in this Article. Article 18 1. The Director-General of the International Labour Office shall notify all Members of the International Labour Organisation of the registration of all ratifications and denunciations communicated to him by the Members of the Organisation. 2. When notifying the Members of the Organisation of the registration of the second ratification communicated to him, the Director-General shall draw the attention of the Members of the Organisation to the date upon which the Convention will come into force. Article 19 The Director-General of the International Labour Office shall communicate to the Secretary-General of the United Nations for registration in accordance with article 102 of the Charter of the United Nations full particulars of all ratifications and acts of denunciation registered by him in accordance with the provisions of the preceding Articles. Article 20 At such times as it may consider necessary the Governing Body of the International Labour Office shall present to the General Conference a report on the working of this Convention and shall examine the desirability of placing on the agenda of the conference the question of its revision in whole or in part.

207 Industrial Relations Reform No. 12, 1994 Article 21 1. Should the Conference adopt a new Convention revising this Convention in whole or in part, then, unless the new Convention otherwise provides— (a) the ratification by a Member of the new revising Convention shall ipso jure involve the immediate denunciation of this Convention, notwithstanding the provisions of Article 17 above, if and when the new revising Convention shall have come into force; (b) as from the date when the new revising Convention comes into force this Convention shall cease to be open to ratification by the Members. 2. This Convention shall in any case remain in force in its actual form and content for those Members which have ratified it but have not ratified the revising Convention. Article 22 The English and French versions of the text of this Convention are equally authoritative. The foregoing is the authentic text of the Convention duly adopted by the General Conference of the International Labour Organisation during its Sixty-eighth Session which was held at Geneva and declared closed the twenty-third day of June 1982. IN FAITH WHEREOF we have appended our signatures this twenty-third day of June 1982.

208 Industrial Relations Reform No. 12, 1994 ‘SCHEDULE 11 ‘FREEDOM OF ASSOCIATION AND PROTECTION OF THE RIGHT TO ORGANISE CONVENTION section 139DA 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:

209 Industrial Relations Reform No. 12, 1994 PART I—FREEDOM OF ASSOCIATION Article 1 1. Each Member of the International Labour Organisation for which this Convention is in force undertakes to give effect to the following provisions. Article 2 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. Article 3 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. Article 4 Workers’ and employers’ organisations shall not be liable to be dissolved or suspended by administrative authority. Article 5 Workers’ and employers’ organisations shall have the right to establish

210 Industrial Relations Reform No. 12, 1994 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. Article 6 The provisions of Articles 2, 3 and 4 hereof apply to federations and confederations of workers’ and employers’ organisations. Article 7 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. Article 8 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. Article 9 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

211 Industrial Relations Reform No. 12, 1994 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. Article 10 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 Article 11 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.

212 Industrial Relations Reform No. 12, 1994 ‘SCHEDULE 12 ‘RIGHT TO ORGANISE AND COLLECTIVE BARGAINING CONVENTION section 139DA 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: Article 1 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

213 Industrial Relations Reform No. 12, 1994 of union membership or because of participation in union activities outside working hours or, with the consent of the employer, within working hours. Article 2 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. Article 3 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. Article 4 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.

214 Industrial Relations Reform No. 12, 1994 Article 5 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. Article 6 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.

215 Industrial Relations Reform No. 12, 1994 ‘SCHEDULE 13 ‘TERMINATION OF EMPLOYMENT RECOMMENDATION section 175AA 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 Sixty-eighth Session on 2 June 1982, and Having decided upon the adoption of certain proposals with regard to termination of employment at the initiative of the employer, which is the fifth item on the agenda of the session, and Having determined that these proposals shall take the form of a Recommendation supplementing the Termination of Employment Convention, 1982; adopts this twenty-second day of June of the year one thousand nine hundred and eighty-two, the following Recommendation, which may be cited as the Termination of Employment Recommendation, 1982: I—METHODS OF IMPLEMENTATION, SCOPE AND DEFINITIONS 1. The provisions of this Recommendation may be applied by national laws or regulations, collective agreements, works rules, arbitration awards or court decisions or in such other manner consistent with national practice as may be appropriate under national conditions. 2.(1) This Recommendation applies to all branches of economic activity

216 Industrial Relations Reform No. 12, 1994 and to all employed persons. (2) A Member may exclude the following categories of employed persons from all or some of the provisions of this Recommendation— (a) workers engaged under a contract of employment for a specified period of time or a specified task; (b) workers serving a period of probation or a qualifying period of employment, determined in advance and of reasonable duration; (c) workers engaged on a casual basis for a short period. (3) In so far as necessary, measures may be taken by the competent authority or through the appropriate machinery in a country, after consultation with the organisations of employers and workers concerned, where such exist, to exclude from the application of this Recommendation or certain provisions thereof categories of employed persons whose terms and conditions of employment are governed by special arrangements, which as a whole provide protection that is at least equivalent to the protection afforded under the Recommendation. (4) In so far as necessary, measures may be taken by the competent authority or through the appropriate machinery in a country, after consultation with the organisations of employers and workers concerned, where such exist, to exclude from the application of this Recommendation or certain provisions thereof other limited categories of employed persons in respect of which special problems of a substantial nature arise in the light of the particular conditions of employment of the workers concerned or the size or nature of the undertaking that employs them. 3.(1) Adequate safeguards should be provided against recourse to contracts of employment for a specified period of time the aim of which is to avoid the protection resulting from the Termination of Employment Convention, 1982, and this Recommendation. (2) To this end, for example, provision may be made for one or more of the following— (a) limiting recourse to contracts for a specified period of time to cases in which, owing either to the nature of the work to be effected or to the circumstances under which it is to be effected or to the interests of the worker, the employment relationship cannot

217 Industrial Relations Reform No. 12, 1994 be of indeterminate duration; (b) deeming contracts for a specified period of time, other than in the cases referred to in clause (a) of this subparagraph, to be contracts of employment of indeterminate duration; (c) deeming contracts for a specified period of time, when renewed on one or more occasions, other than in the cases mentioned in clause (a) of this subparagraph, to be contracts of employment of indeterminate duration. 4. For the purpose of this Recommendation the terms “termination” and “termination of employment” mean termination of employment at the initiative of the employer. II—STANDARDS OF GENERAL APPLICATION Justification for Termination 5. In addition to the grounds referred to in Article 5 of the Termination of Employment Convention, 1982, the following should not constitute valid reasons for termination— (a) age, subject to national law and practice regarding retirement; (b) absence from work due to compulsory military service or other civic obligations, in accordance with national law and practice. 6.(1) Temporary absence from work because of illness or injury should not constitute a valid reason for termination. (2) The definition of what constitutes temporary absence from work, the extent to which medical certification should be required and possible limitations to the application of subparagraph (1) of this Paragraph should be determined in accordance with the methods of implementation referred to in Paragraph 1 of this Recommendation.

218 Industrial Relations Reform No. 12, 1994 Procedure prior to or at the time of termination 7. The employment of a worker should not be terminated for misconduct of a kind that under national law or practice would justify termination only if repeated on one or more occasions, unless the employer has given the worker appropriate written warning. 8. The employment of a worker should not be terminated for unsatisfactory performance, unless the employer has given the worker appropriate instructions and written warning and the worker continues to perform his duties unsatisfactorily after a reasonable period of time for improvement has elapsed. 9. A worker should be entitled to be assisted by another person when defending himself, in accordance with Article 7 of the Termination of Employment Convention, 1982, against allegations regarding his conduct or performance liable to result in the termination of his employment; this right may be specified by the methods of implementation referred to in Paragraph 1 of this Recommendation. 10. The employer should be deemed to have waived his right to terminate the employment of a worker for misconduct if he has failed to do so within a reasonable period of time after he has knowledge of the misconduct. 11. The employer may consult workers’ representatives before a final decision is taken on individual cases of termination of employment. 12. The employer should notify a worker in writing of a decision to terminate his employment. 13.(1) A worker who has been notified of termination of employment or whose employment has been terminated should be entitled to receive, on request, a written statement from his employer of the reason or reasons for the termination.

219 Industrial Relations Reform No. 12, 1994 (2) Subparagraph (1) of this Paragraph need not be applied in the case of collective termination for the reasons referred to in Articles 13 and 14 of the Termination of Employment Convention, 1982, if the procedure provided for therein is followed. Procedure of appeal against termination 14. Provision may be made for recourse to a procedure of conciliation before or during appeal proceedings against termination of employment. 15. Efforts should be made by public authorities, workers’ representatives and organisations of workers to ensure that workers are fully informed of the possibilities of appeal at their disposal. Time off from work during the period of notice 16. During the period of notice referred to in Article 11 of the Termination of Employment Convention, 1982, the worker should, for the purpose of seeking other employment, be entitled to a reasonable amount of time off without loss of pay, taken at times that are convenient to both parties. Certificate of employment 17. A worker whose employment has been terminated should be entitled to receive, on request, a certificate from the employer specifying only the dates of his engagement and termination of his employment and the type or types of work on which he was employed; nevertheless, and at the request of the worker, an evaluation of his conduct and performance may be given in this certificate or in a separate certificate.

220 Industrial Relations Reform No. 12, 1994 Severance allowance and other income protection 18.(1) A worker whose employment has been terminated should be entitled, in accordance with national law and practice, to— (a) a severance allowance or other separation benefits, the amount of which should be based, inter alia, on length of service and the level of wages, and paid directly by the employer or by a fund constituted by employers’ contributions; or (b) benefits from unemployment insurance or assistance or other forms of social security, such as old-age or invalidity benefits, under the normal conditions to which such benefits are subject; or (c) a combination of such allowance and benefits. (2) A worker who does not fulfil the qualifying conditions for unemployment insurance or assistance under a scheme of general scope need not be paid any allowance or benefit referred to in subparagraph (1)(a) of this Paragraph solely because he is not receiving an unemployment benefit under subparagraph (1)(b). (3) Provision may be made by the methods of implementation referred to in Paragraph 1 of this Recommendation for loss of entitlement to the allowance or benefits referred to in subparagraph (1)(a) of this Paragraph in the event of termination for serious misconduct. III—SUPPLEMENTARY PROVISIONS CONCERNING TERMINATIONS OF EMPLOYMENT FOR ECONOMIC, TECHNOLOGICAL, STRUCTURAL OR SIMILAR REASONS 19.(1) All parties concerned should seek to avert or minimise as far as possible termination of employment for reasons of an economic, technological, structural or similar nature, without prejudice to the efficient operation of the undertaking, establishment or service, and to mitigate the adverse effects of any termination of employment for these reasons on the

221 Industrial Relations Reform No. 12, 1994 worker or workers concerned. (2) Where appropriate, the competent authority should assist the parties in seeking solutions to the problems raised by the terminations contemplated. Consultations on major changes in the undertaking 20.(1) When the employer contemplates the introduction of major changes in production, program, organisation, structure or technology that are likely to entail terminations, the employer should consult the workers’ representatives concerned as early as possible on, inter alia, the introduction of such changes, the effects they are likely to have and the measures for averting or mitigating the adverse effects of such changes. (2) To enable the workers’ representatives concerned to participate effectively in the consultations referred to in subparagraph (1) of this Paragraph, the employer should supply them in good time with all relevant information on the major changes contemplated and the effects they are likely to have. (3) For the purposes of this Paragraph the term “the workers’ representatives concerned” means the workers’ representatives recognised as such by national law or practice, in conformity with the Workers’ Representatives Convention, 1971. Measures to avert or minimise termination 21. The measures which should be considered with a view to averting or minimising terminations of employment for reasons of an economic, technological, structural or similar nature might include, inter alia, restriction of hiring, spreading the workforce reduction over a certain period of time to permit natural reduction of the workforce, internal transfers, training and retraining, voluntary early retirement with appropriate income protection, restriction of overtime and reduction of normal hours of work. 22. Where it is considered that a temporary reduction of normal hours of

222 Industrial Relations Reform No. 12, 1994 work would be likely to avert or minimise terminations of employment due to temporary economic difficulties, consideration should be given to partial compensation for loss of wages for the normal hours not worked, financed by methods appropriate under national law and practice. Criteria for selection for termination 23.(1) The selection by the employer of workers whose employment is to be terminated for reasons of an economic, technological, structural or similar nature should be made according to criteria, established wherever possible in advance, which give due weight both to the interests of the undertaking, establishment or service and to the interests of the workers. (2) These criteria, their order of priority and their relative weight, should be determined by the methods of implementation referred to in Paragraph 1 of this Recommendation. Priority of rehiring 24.(1) Workers whose employment has been terminated for reasons of an economic, technological, structural or similar nature, should be given a certain priority of rehiring if the employer again hires workers with comparable qualifications, subject to their having, within a given period from the time of their leaving, expressed a desire to be rehired. (2) Such priority of rehiring may be limited to a specified period of time. (3) The criteria for the priority of rehiring, the question of retention of rights—particularly seniority rights—in the event of rehiring, as well as the terms governing the wages of rehired workers, should be determined according to the methods of implementation referred to in Paragraph 1 of this Recommendation. Mitigating the effects of termination 25.(1) In the event of termination of employment for reasons of an

223 Industrial Relations Reform No. 12, 1994 economic, technological, structural or similar nature, the placement of the workers affected in suitable alternative employment as soon as possible, with training or retraining where appropriate, should be promoted by measures suitable to national circumstances, to be taken by the competent authority, where possible with the collaboration of the employer and the workers’ representatives concerned. (2) Where possible, the employer should assist the workers affected in the search for suitable alternative employment, for example through direct contacts with other employers. (3) In assisting the workers affected in obtaining suitable alternative employment or training or retraining, regard may be had to the Human Resources Development Convention and Recommendation, 1975. 26.(1) With a view to mitigating the adverse effects of termination of employment for reasons of an economic, technological, structural or similar nature, consideration should be given to providing income protection during any course of training or retraining and partial or total reimbursement of expenses connected with training or retraining and with finding and taking up employment which requires a change of residence. (2) The competent authority should consider providing financial resources to support in full or in part the measures referred to in subparagraph (1) of this Paragraph, in accordance with national law and practice. IV—EFFECT ON EARLIER RECOMMENDATION 27. This Recommendation and the Termination of Employment Convention, 1982, supersede the Termination of Employment Recommendation, 1963. ’.

224 Industrial Relations Reform No. 12, 1994 PART 3—AMENDMENT OF PUBLIC SERVICE MANAGEMENT AND EMPLOYMENT ACT 1988 ˙ Act amended 40. This Part amends the Public Service Management and EmploymentAct 1988 . ˙ Amendment of s 40 (Cooperation between State and Commonwealth Services) 41. Section 40(2) and (3)— omit, insert— ‘(2) The Governor in Council, or a Minister authorised by the Governor in Council, may make arrangements with the appropriate Commonwealth authority for performance by an officer of the Commonwealth public service, for the Queensland Government, of any work or services or of duties of any office within the Queensland public service. ‘(3) The Governor in Council, or a Minister authorised by the Governor in Council, at the request of the appropriate Commonwealth authority may authorise and cause any work or services to be performed for the Commonwealth Government by an officer of the Queensland public service. ’. PART 4—AMENDMENT OF VOCATIONAL EDUCATION, TRAINING AND EMPLOYMENT ACT 1991 ˙ Act amended 42. This Part amends the VocationalEducation,TrainingandEmployment Act 1991 .

225 Industrial Relations Reform No. 12, 1994 ˙ Relocation of Schedule (National Vocational Education and Training Statement) 43. Schedule— relocate after Part 5.

226 Industrial Relations Reform No. 12, 1994 ¡ SCHEDULE MINOR AMENDMENTS section 3 1. Sections 5(1) (definitions “bonus payment”, “eligible employee” and “young employee”), 16, 32, 36(4)(a) and (b), (7) and (8), 37(2), 39(1)(a) and (b), 40(1) and (3), 41(1) and (4), 52(a)(v), 53(1) and (2), 77(2), 78(2)(a)(ii), 79(c), 90(1)(b), 98(6)(a), 140(1) and (4), 141(1), (6), (7) and (9), 142, 143, 144, 145(5), 146(1), 149(1), 151(1), (2) and (4), 152(1), (2) and (8), 153(2)(b), 154(a) and (b), 156(1), 157(1), 158(1) and (3), 160(1)(c)(iv)(A), 165(1), (3) and (4), 166(2) and (4), 170(1)(d), 171(1)(a) and (3), 187(10), 204(b)(ii) and (c)(i), 259(6), 264(5)(c), 291(2)(c)(ii)(A), 309(1)(a)(i) and (ii), 310(2)(a), 314(c) and (d), 342(1)(c), 343(4), 344(1), 358(2)(b)(i), 359(4)(a)(iii), 362(3)(c)(i) and (4), 373, 374, 377(3), 385(b), 386, 405(6)(c), 412, 462(1)(a), (3) and (4), 464(1)— omit ‘ or certified agreement ’, insert ‘ , certified agreement or enterprise flexibility agreement ’. 2. Sections 5(1) (definition “party”), 6(3)(d)(i), 13(1)(b)(iii)(B), 15, 17(a)(ii), 49(1)(a)(vi), 52(a)(ii) and (iii)(A) and (B), 159(1)(a), 180(2), 353(1)(c), (e) and (g) and (4), 362(1)(a) and (b) and (3)(c)(iii) and (f), 363(1)(a) and (b), 383, 385, 405(1) and (2)(a) and (b), 461(1) and (2), 463(1) and (3), 466(1), (3) and (4), 467(1), 469(2)(a), 472(a), after ‘certified agreement’— insert ‘ , enterprise flexibility agreement ’. 3. Section 34(3) and (4)— omit ‘ Employment, Vocational Education and Training Act 1988 ’, insert ‘ Vocational Education, Training and Employment Act 1991 ’.

227 Industrial Relations Reform No. 12, 1994 4. Section 36(4)(b), after ‘industrial agreement’ (1st mention)— insert ‘ , certified agreement, enterprise flexibility agreement ’. 5. Section 41(1), 2nd and 3rd mentions— omit ‘ industrial agreement ’, insert ‘ agreement ’. 6. Section 78(2)— insert— ‘ (ca) a copy of an enterprise flexibility agreement, bearing a certificate purporting to be that of the Industrial Registrar that is a true copy, is admissible as evidence of the agreement, its execution as shown in the copy and its approval by the Commission; and ’. 7. Section 90(1) and (2)— omit ‘ section 89(4) ’, insert ‘ section 89(5) ’. 8. Section 93(3)— omit . 9. Sections 135(1), 136, 138 and 139(1)— omit ‘ , industrial agreement or certified agreement ’, insert ‘ or industrial agreement ’. 10. Sections 140(1) and 149(1), after ‘employer, and an’ insert ‘ employee or ’. 11. Section 153(2)(a)— omit ‘ Employment, Vocational Education and Training Act 1988 ’, insert ‘ Vocational Education, Training and Employment Act 1991 ’.

228 Industrial Relations Reform No. 12, 1994 12. Section 204(c)(ii), after ‘award’— insert ‘ , industrial agreement, certified agreement, enterprise flexibility agreement ’. 13. Sections 275(1)(d) and 277(1)(b)— omit ‘ and certified agreements ’, insert ‘ , certified agreements and enterprise flexibility agreements ’. The State of Queensland 1994