National Security (Reinstatement in Civil Employment) Regulations (Cth)

STATUTORY RULES.

1944. No. 187.

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REGULATIONS UNDER THE NATIONAL SECURITY ACT 1939-1943.*

I, THE ADMINISTRATOR of the Government of 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 twenty-first day of December, 1944.

W. DUGAN

Administrator.

By His Excellency’s Command,

E. J. HOLLOWAY

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

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National Security (Reinstatement in Civil Employment)

Regulations.

Citation.

1. These Regulations may be cited as the National Security (Reinstatement in Civil Employment) Regulations.

Repeal.

2.—(1.) The National Security (Reinstatement in Civil Employment) Regulations (being Statutory Rules 1939, No. 176 as amended by Statutory Rules 1940, Nos. 63, 103 and 222; 1941, Nos. 11 and 220; 1942, Nos. 55 and 267; 1943, Nos. 54 and 278; and 1944, Nos. 14 and 113) are repealed.

(2.) Where any person has applied for reinstatement in employment in accordance with the Regulations repealed by these Regulations and has not been reinstated in employment in accordance with those Regulations, the provisions of these Regulations shall apply in like manner as they would apply in relation to an application made under these Regulations on the date of commencement of these Regulations.

Administration.

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

 

* Notified in the Commonwealth Gazette on 21st December, 1944.

7553.—Price 5d.

 

Definitions.

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

“employer” includes the Crown (whether in right of the Commonwealth or of a State) and any authority constituted by or under the law of the Commonwealth or of a State or Territory of the Commonwealth;

“essential work” means, in relation to any person who has rendered war service, work which is, in the opinion of the Minister, more essential, in the national interest, than the work which the person would perform if he were reinstated in employment in accordance with these Regulations;

“former employer” means in relation to a person who is rendering or has rendered war service, the employer by whom that person was employed for not less than twenty-eight days out of the fifty-six days immediately preceding the date upon which he volunteered for war service or received a notice requiring him to perform war service, and includes any person for the time being—

(a) carrying on an undertaking or service in which the first-mentioned person was so employed; or

(b) carrying on an undertaking or service with which that undertaking or service has been amalgamated or in which it was comprised during those fifty-six days;

“Reinstatement Committee” means a Reinstatement Committee constituted under regulation 14 of these Regulations;

“war service” means—

(a) the service of a member of the Citizen Forces when called out for war service in pursuance of the Defence Act 1903-1941, or during continuous training under that Act, the Naval Defence Act 1910-1934 or the Air ForceAct 1923-1941;

(b) the continuous full-time service in the Defence Force under any of those Acts of any person who volunteers and is accepted for that service during the present war; or

(c) the continuous full-time service of any person as a member of any of the following organizations, namely:—

(i) The Royal Australian Navy Nursing Service;

(ii) The Australian Army Nursing Service;

(iii) The Royal Australian Air Force Nursing Service;

(iv) The Women’s Royal Australian Naval Service;

(v) The Australian Women’s Army Service;

(vi) The Women’s Auxiliary Australian Air Force;

 

(vii) A Voluntary Aid Detachment attached to the Defence Force, or any part thereof, or to the Naval, Military or Air Forces of the United Kingdom or of any other part of His Majesty’s dominions (other than the Commonwealth) or of any foreign power allied or associated with His Majesty or of any foreign authority recognized by His Majesty as competent to maintain Naval, Military or Air Forces for service in association with His Majesty’s Forces; or

(viii) Any other organization or part thereof which the Minister, by order published in the Gazette, declares to be, for the purposes of these Regulations, an organization rendering war service.

(2.) Subject to the next succeeding sub-regulation, a person shall be deemed for the purposes of these Regulations to have completed a period of war service upon the termination of that service for any cause whatsoever.

(3.) Where any person has completed a period of war service and engages in essential work either—

(a) within one month after completing that service;

(b) after having applied to be reinstated in employment in accordance with these Regulations and not having been so reinstated; or

(c) after having been so reinstated in employment and not having left that employment except to engage in essential work,

the Minister, in his discretion may, and, where that service has, on the recommendation of the Director-General of Man Power, been terminated for the purpose of enabling that person to engage in essential work, shall, notify the former employer (if any) in writing that the person’s rights to reinstatement in employment are reserved, and thereupon the person shall be deemed not to have completed a period of war service until such time as—

(d) he receives from the Minister a statement in writing that his services are no longer required for essential work; or

(e) His Majesty ceases to be engaged in war,

whichever first happens.

Employers not to terminate employment by reason of liability of employees for war service.

5.—(1.) An employer shall not terminate the employment of any person employed by him for the reason that that person is, or may become, liable to perform any war service.

(2.) In any proceedings for an offence in respect of a contravention of this regulation, if all the facts and circumstances constituting the offence, other than the reason for the defendant’s action, are proved, it shall lie upon the defendant to prove that he was not actuated by the reason alleged in the charge.

Application for re-instatement in employment.

6.—(1.) Any person who has completed a period of war service may apply to his former employer for reinstatement in employment.

(2.) An application under the last preceding sub-regulation shall be made not earlier than fourteen days prior to the completion of the period of war service and not later than one month after the completion of that period, or prior to the date to which that period has been extended by a Reinstatement Committee in pursuance of regulation 15 of these Regulations.

Notice of date on which applicant will be available for employment.

7.—(1.) A person making application under the last preceding regulation may specify in the application a date, not later than two months after the date of making the application, as the date upon which the applicant will be available for employment.

(2.) Where the applicant does not so specify a date he shall, by notice in writing served on the former employer, within the period of two months after the date on which the application was made, or prior to the date to which that period has been extended by a Reinstatement Committee in pursuance of regulation 15 of these Regulations, specify a date during that period or extended period as the date on which the applicant will be available for employment.

Expiration and renewal of applications.

8.—(1.) An application which is still in force may be renewed from time to time by notice in writing served on the former employer.

(2.) An application shall cease to have effect at the expiration of a period of three months after the date on which it was made or last renewed, as the case may be, or on the date to which that period has been extended by a Reinstatement Committee in pursuance of regulation 15 of these Regulations.

(3.) Whenever an application is renewed, the applicant shall specify in the notice a date, not later than two months after the date on which the application is renewed, as the date on which the applicant will be available for employment.

Signature of applications.

9. Any notice under these Regulations may be signed by the applicant personally or by some person acting with his authority.

Reinstatement in employment.

10.—(1.) Where an application has been made under these Regulations and is still in force, the former employer shall make employment available to the applicant in accordance with this regulation at the date notified to him, or last notified to him, as the date on which the applicant will be available for employment or at the first opportunity (if any) at which it is practicable and reasonable to do so thereafter.

(2.) A former employer shall be deemed not to have made employment available to the applicant unless he has given reasonable notice thereof in writing to the applicant.

(3.) The employment to be made available under this regulation shall be employment—

(a) in the occupation in which the applicant was employed immediately prior to the commencement of his period of war service and under conditions not less favorable to him than those which would have been applicable to him in that occupation if he had remained in the employment of the former employer, including any increase of remuneration to which he would have become entitled if he had remained in that employment; or

 

(b) if the applicant and the former employer agree or, in the event of disagreement a Reinstatement Committee, upon application by either party, determines, that it is not practicable or is not reasonable for the former employer to employ the applicant in that occupation and on those terms and conditions—in an occupation and under terms and conditions agreed upon between the applicant and the former employer or, in the event of their disagreement, in an occupation and under terms and conditions which the Reinstatement Committee determines to be practicable and reasonable.

(4.) Where two or more persons apply to a former employer to be reinstated in employment and it is not reasonably practicable for him to make employment available to all those persons, the former employer shall make employment available to as many of those persons as is reasonably practicable and in the order which gives preference, as between any two applicants, to the applicant whose length of service with that employer was the greater at the date on which the applicant who first commenced a period of war service commenced that period of war service.

(5.) Where—

(a) it is not reasonably practicable for a former employer to make employment available to an applicant without employing in some other occupation or under less favorable conditions some person who has been reinstated in accordance with these Regulations, or without terminating the employment of that person; and

(b) the applicant was, prior to the date on which the applicant or the date on which that person first commenced his period of war service, whichever is the earlier, employed by the former employer for a longer period than that person was employed,

the former employer shall, as soon as it is practicable and reasonable for him to do so, employ that person in some other occupation or under less favorable conditions, or, if that is not reasonably practicable, shall terminate the employment of that person.

(6.) Where it is not reasonably practicable for a former employer to make employment available to an applicant without terminating the employment of some person who was employed to take the place of the applicant and who has not been reinstated in accordance with these Regulations, the former employer shall terminate the employment of that person.

(7.) Where employment is made available to a person in accordance with this regulation and is not accepted by him at the date for which it is made available, the application shall cease to have effect unless, within fourteen days thereafter, the person applies to a Reinstatement Committee and that Committee determines that the person has reasonable cause for not so accepting that employment, in which event the application to the former employer shall be renewed forthwith in accordance with regulation 8 of these Regulations.

 

Rights of reinstated employees.

11. Where any person has been reinstated in employment in accordance with these Regulations then, for the purpose of determining the rights of that person, as against the employer in whose employment he has been reinstated, in respect of—

(a) annual leave for recreation;

(b) leave on the ground of illness;

(c) long service leave or pay in lieu thereof (including pay to dependants on the death of the person); and

(d) superannuation or pension (whether for himself or his dependants),

the continuity of the employment of that person by the employer shall be deemed not to have been broken by his absence from employment during any period between the date upon which that person left the employment to commence war service and the date upon which he was reinstated in employment, but that period shall not, by reason only of this regulation, be reckoned as part of the period of employment.

Termination of employment after re-instatement.

12.—(1.) Where an employer has reinstated a person in accordance with these Regulations he shall not, except as required by sub-regulation (5.) of regulation 10 of these Regulations or without reasonable cause, terminate the employment of that person or vary it by employing him in an occupation under conditions less favorable to him than those of the employment in which he was so reinstated.

(2.) In any proceedings for an offence in respect of a contravention of this regulation, the onus shall, where the employment was terminated or varied within six months after reinstatement, be on the employer to prove that he terminated or varied the employment as required by sub-regulation (5.) of regulation 10 of these Regulations or that he had reasonable cause for terminating or varying the employment.

Payment of portion of fine or compensation to employee.

13.—(1.) Where an employer or former employer is convicted of an offence in respect of a contravention of these Regulations—

(a) the court may order that a portion of any fine imposed shall be paid to the employee or former employee concerned; and

(b) whether or not an order has been made under the last preceding paragraph, the court may order that the employer or former employer shall pay to the employee or former employee such compensation as the court thinks reasonable.

(2.) In determining the amount of any compensation under the last preceding sub-regulation the court shall, where necessary, have regard to—

(a) the nature of the employment in respect of which the offence occurred;

(b) the duration of that employment and whether, but for the offence, it was likely to have been permanent employment for that employee or former employee;

(c) the prospects of the employee or former employee in respect of that employment; and

(d) any other factors which the court considers relevant.

(3.) The like proceedings may be taken upon an order under paragraph (b) of sub-regulation (1.) of this regulation as if the order were a judgment or order of the court in favour of the employee or former employee.

 

Appointment of Reinstatement Committees.

14.—(1.) The Minister may appoint a Reinstatement Committee in each State and Territory of the Commonwealth.

(2.) Each Reinstatement Committee shall consist of a chairman, one member to represent persons who have rendered war service and one member to represent employers.

(3.) Panels of persons to represent persons who have rendered war service and employers respectively shall be selected in such manner as the Minister determines and the members of a Reinstatement Committee other than the chairman, shall be selected from the panels in such manner as the Minister determines.

(4.) A person shall not act as a member of a Reinstatement Committee at any meeting which considers any matter in which that person has a direct interest as the applicant for reinstatement in employment or the employee, or as the employer or former employer, or as a member of the firm or company which is the employer or former employer.

(5.) The Minister may, by order, prescribe the manner in which applications may be made to, or disputes may be referred to, Reinstatement Committees and the procedure in relation to the hearing of such applications or disputes.

(6.) The Minister may determine the remuneration and allowances (if any) which shall be paid to members of Reinstatement Committees.

Extension of periods within which application, &c., may be made.

15. A Reinstatement Committee may, on application by a person who has completed a period of war service, extend—

(a) the period specified in sub-regulation (2.) of regulation 6 of these Regulations as the period within which that person may apply for reinstatement in employment;

(b) the period specified in sub-regulation (2.) of regulation 7 of these Regulations as the period within which that person shall specify a date as the date on which he will be available for employment; or

(c) the period specified in sub-regulation (2.) of regulation 8 of these Regulations as the period at the expiration of which an application shall cease to have effect,

if it is satisfied that the person made the application as early as it was practicable and reasonable for him to do so and that, by reason of illness or other reasonable cause, the application should be granted.

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