National Security (Holidays and Annual Leave) Regulations (Cth)

STATUTORY RULES.

1943. No. 260.

 

REGULATIONS UNDER THE NATIONAL SECURITY ACT 1939-1943.*

I, THE GOVERNOR-GENERAL in and over the Commonwealth of Australia, acting with the advice of the Federal Executive Council, hereby make the following Regulations under the National Security Act 1939-1943.

Dated this thirteenth day of October, 1943.

(SGD.) GOWRIE.

Governor-General.

By His Excellency’s Command,

(Sgd.) E. J. HOLLOWAY

for and on behalf of the Minister of State for Defence.

 

National Security (Holidays and Annual Leave) Regulations.

Citation.

1. These Regulations may be cited as the National Security (Holidays and Annual Leave) Regulations.

Administration.

2. These Regulations shall be administered by the Minister of State for Labour and National Service.

Repeal.

3. The National Security (Holidays and Annual Leave) Regulations (comprising Statutory Rules 1942, No. 418, as amended by Statutory Rules 1942, No. 541; and 1943, Nos. 19, 47, 61, 89, 101, 102 and 145) are repealed.

Definitions.

4. In these Regulations, unless the contrary intention appears—

“employee” means a person—

(a) who is employed at or in any establishment, factory, mine, dockyard or workshop, and who is engaged, wholly or partly, in production for war or defence purposes, or in the repair or overhaul of munitions of war;

(b)who is engaged in connexion with the construction of works for defence purposes or of works declared by the Minister to be essential for the defence of the Commonwealth;

 

* Notified in the Commonwealth Gazette on October, 1943.

6087—Price 5d. 9/11.10.1943.

(c) who is employed in any Commonwealth or State Department, or by any authority of the Commonwealth or of a State, and who is engaged on work associated with the prosecution of the war; or

(d) who is employed in connexion with—

(i) any transport service; or

(ii) the production or distribution of coal, electricity or gas,

necessary for the carrying on of any production, repair, overhaul, construction or work specified in the preceding paragraphs of this definition or for any other purpose associated with the prosecution of the war;

“employer” means an employer of any employee and, where an employer is a body corporate, includes a director, officer or agent of an employer who is actively concerned in the conduct of the business of the body corporate;

“holiday”, in relation to any employee or employer, means a day which is ordinarily observed, or which, but for circumstances arising out of the war or the provisions of any regulation under the National Security Act 1939-1943, would be a day which is ordinarily observed as a holiday at the place at which the employer is engaged in business or the employee is employed;

“Industrial Authority” means the Commonwealth Court of Conciliation and Arbitration and includes any other tribunal or person constituted by or under any law of the Commonwealth for the purpose of hearing and determining industrial disputes and making awards or orders in settlement thereof, and any tribunal which is a State Industrial Authority within the meaning of the Commonwealth Conciliation and Arbitration Act 1904-1934, and also includes the Public Service Arbitrator;

“law” means law of the Commonwealth or of a State or Territory of the Commonwealth and includes industrial award, order, determination or agreement;

“leave” means annual leave or leave of absence for the purposes of recreation;

“munitions of war” includes—

(a)the whole or any part of any ship, submarine, aircraft, tank or similar vehicle or engine, arms, armaments, ammunition, vehicle, bomb, torpedo, mine, weapon or device (whether actual or experimental); and

(b)any machine, machine tool, tool, gauge, jig, die, template or mould necessary for the manufacture, production, repair or overhaul of munitions of war;

Directions as to work on holidays.

5.—(1.) Notwithstanding the provisions of any other law, except in the case of—

(a) illness or incapacity;

(b) absence of an employee on a day during a period of leave;

(c) a domestic or other pressing emergency; or

(d)attendance at a camp of continuous training of an employee or employer who is a member of the Defence Force,

an employee or employer who is directed by a Minister to work during a holiday shall not, without reasonable cause (proof whereof shall lie upon him), fail to perform his duties or absent himself from his place of employment or business or from the place where his duties are usually performed, at any time on that holiday during the period during which he is required by the terms and conditions of his employment to be, on an ordinary working day or business day, at that place of employment or business, or, where there are no such requirements, during which it is customary or usual for an employee or employer engaged in similar classes of employment or business to be, on an ordinary working day or business day, at the place of employment or business.

(2.) Any employee of an employer to whom a direction has been given, who is required by that employer to work during a holiday, shall be deemed to have been directed under this regulation so to work.

(3.) Subject to this regulation, compensation for work on a holiday in pursuance of a direction shall be as prescribed by the appropriate law.

(4.) Where an employee who works on a holiday in pursuance of a direction is not entitled under any law to additional payment for so working, any Industrial Authority having jurisdiction to determine disputes or claims in respect of rates of pay or conditions of employment in relation to the work on which the employee is employed may, upon the application of the employee or any organization of employees to which he belongs, determine that the employee shall be entitled, for so working, to additional payment at such rate as, in all the circumstances (including the regularity of the employee’s attendance at work), the Industrial Authority thinks just, and the employee shall thereupon be entitled to payment accordingly.

(5.) For the purposes of this regulation—

“ direction” means a direction under this regulation.

Restrictions on annual leave.

6.—(1.) Where a Minister is of opinion that it is necessary for the efficient prosecution of the war that leave should not be granted by an employer or taken by an employee, or should be so granted or taken only at a time and in accordance with conditions (if any) determined by the Minister, the Minister may, by notice published in the Gazette, declare the employer or employee to be an employer or an employee to whom this regulation applies.

(2.) Notwithstanding the provisions of any other law, but subject to this regulation, an employer shall not grant, and an employee shall not take, any leave to which the employee is entitled or for which the employee is eligible under any law, except in the case of—

(a) illness or incapacity;

(b) a domestic or other pressing emergency; or

(c) attendance at a camp of continuous training of an employee who is a member of the Defence Force,

or except at the time and in accordance with the conditions (if any) determined by the Minister.

(3.) The terms of any such determination shall, unless published in the Gazette, be communicated in writing by the Minister to the employer of any employee affected thereby and, in any case, shall be posted by the employer in a conspicuous position at the place of employment of his employees.

(4.) Where, in pursuance of any law, any person is entitled to, or eligible for, the grant of leave and is not granted the leave by reason only of this regulation, his employer shall, subject to the provisions of this regulation, grant him leave at some other time within six months after the time at which the leave would ordinarily have been granted, and the period of the leave so granted shall be the period of leave to or for which the employee is entitled or eligible by reason of leave not having been granted to him for the period for which leave is ordinarily so granted.

(5.) Where an employee is not granted leave in accordance with the provisions of the last preceding sub-regulation or the Minister determines that it is unlikely that leave will be so granted, the employee shall be entitled to be paid by his employer, in accordance with the provisions of this regulation, such sum, in lieu of leave, as would have been payable to him in respect of the period of leave if it had been granted to him:

Provided that the Minister may, by notice published in the Gazette, declare that the provisions of this sub-regulation shall not apply to any employee referred to in paragraph (c) of the definition of “employee” in regulation 4 of these Regulations.

(6.) The payment to be made by an employer under the last preceding sub-regulation shall be made on the first pay day after such date as is agreed upon by the employer and representatives of the employees concerned or, in the absence of agreement, as is fixed by the Minister after consultation with the employer and representatives of those employees.

(7.) Notwithstanding anything contained in the last two preceding sub-regulations, where an employee is entitled under sub-regulation (5.) of this regulation to be paid a sum in lieu of leave, he may, by so informing his employer on a day on which he is at work and before the date on which the payment of the sum is to be made, elect to forego payment of that sum and to retain in lieu thereof the rights to which he would have been entitled, but for this regulation, under any other law, in respect of leave which, by reason of this regulation, is not granted to him, and he shall thereupon retain those rights accordingly.

(8.) In this regulation—

“employee” or “employer” means an employee or employer to whom this regulation has been declared to apply;

“the Minister”, in relation to an employer or employee in respect of whom a declaration has been made under this regulation, means the Minister by whom the declaration was made.

Terms and conditions as to performance of extra duties.

7.—(1.) Where the terms and conditions on which any employee is employed do not empower his employer to require him to perform his duties on a holiday or during hours which are not, in respect of that employee, the ordinary hours of work or business, or to refuse, either unconditionally or subject to conditions, to grant him leave, and a Minister or the employer is of opinion that it is necessary for the

efficient prosecution of the war that the employee should so perform his duties or that the employer should be empowered to require the employee so to perform his duties, or that the employee should not be granted leave or should be granted leave only at a time and in accordance with conditions (if any) determined by an Industrial Authority, the Minister or employer may refer to any Industrial Authority the question—

(a) as to whether the employee should so perform his duties;

(b)as to whether the employer should be empowered to require the employee so to perform his duties;

(c) as to whether the employee should not be granted leave; or

(d)as to the time at which and the conditions in accordance with which the employee should be granted leave,

and the question as to the compensation (if any) which should be made to the employee for any such performance of his duties or in respect of the application to him of any determination in respect of leave made by the Industrial Authority.

(2.) Upon the reference to it of any such question, the Industrial Authority shall forthwith hear and determine the question, and for those purposes shall have and may exercise the like powers as it has and may exercise in hearing and determining matters of which it has cognizance under the law by or under which it is constituted.

(3.) If the question is a question specified in paragraph (a) or paragraph (b)of sub-regulation (1.) of this regulation, the Industrial Authority may, if it thinks fit, determine—

(a) that the employee shall so perform his duties; or

(b)that the employer shall have power to require the employee so to perform his duties,

and that the employee shall be entitled to receive from the employer such compensation (if any) as is specified in the determination for so performing his duties in accordance with the determination or any requirement of the employer.

(4.) If the question is a question specified in paragraph (c) or paragraph (d)of sub-regulation (1.) of these Regulations, the Industrial Authority, may, if it thinks fit, determine—

(a) that the employee shall not be granted leave; or

(b)that leave shall be granted to the employee at such times and upon such conditions (if any) as are specified in the determination,

and that, in respect of the application of that determination to the employee, the employee shall be entitled to receive from the employer such compensation (if any) as is specified in the determination.

(5.) A person shall comply with every such determination (including any requirement thereunder), which is applicable to him.

Disputes arising under the Regulations.

8. If any dispute arises between an employer and an employee with respect to the operation of any of the provisions of these Regulations, an Industrial Authority having jurisdiction to determine disputes or claims in respect of rates of pay or conditions of employment in relation to the work on which the employee is employed may, on application by the employer or any organization of employers or employees to which the employer or employee belongs, hear the dispute and advise the parties

as to the terms on which the dispute should be settled and, failing acceptance of those terms, shall hear and determine the dispute and the parties thereto shall comply with the determination.

Directions, declarations and determinations.

9.—(1.) A direction under regulation 5, or a declaration or determination under regulation 6, of these Regulations, may be given so as to apply according to its tenor—

(a)to all or any employers or employees included in a class of employers or employees specified in the direction, declaration or determination; or

(b) to any particular employer or employee so specified.

(2.) Where any such direction is published in the Gazette, the direction shall be deemed to have been sufficiently served upon, or brought to the notice of, all persons concerned or affected thereby.

(3.) Without affecting the generality of the last preceding sub-regulation, where any such direction is given so as to apply to any particular person, it may be served upon that person by delivering a copy thereof to him by hand or by sending it to him by registered post.

Right to sue for payments.

10. An employee who is entitled to any payment under these Regulations may sue for, and recover, in any court of competent jurisdiction, any payment to which he is so entitled.

 

By Authority: L. F. Johnston, Commonwealth Government Printer, Canberra.