Stevedoring Industry (Temporary Provisions) Regulations (Cth)

STATUTORY RULES

1968 No.

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REGULATIONS UNDER THE STEVEDORING INDUSTRY (TEMPORARY PROVISIONS) ACT 1967.*

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 Stevedoring Industry (Temporary Provisions) Act 1967.

Dated this eleventh day of January, 1968

CASEY

Governor-General.

By His Excellency’s Command,

Minister of State for Labour and National Service.

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STEVEDORING INDUSTRY (TEMPORARY PROVISIONS) REGULATIONS

Part I.—Preliminary

Citation.

1. These Regulations may be cited as the Stevedoring Industry (Temporary Provisions) Regulations.

Parts.

2. These Regulations are divided into Parts, as follows:—

Part I.—Preliminary (Regulations 1-4).

Part II.—Transfers from Part A to Part B of the Register of Waterside Workers (Regulation 5).

Part III.—Dismissal and Cancellation or Suspension of Registration (Regulations 6-19).

Part IV.—Long Service Leave (Regulations 20-23).

Part V.—Allocation of Labour (Regulations 24-27).

Part VI.—General (Regulations 28-30).

Definitions.

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

“direction” means a direction of the Authority under these Regulations;

“employment office” means an employment office for waterside workers conducted by a registered employer or by the holding company and includes an employment bureau;

“employer”, in relation to a waterside worker employed on a weekly hiring, means—

(a) where the waterside worker is so employed by a registered employer—the registered employer; or

(b) where the waterside worker is so employed by the holding company—the holding company.

“waterside worker” means a registered regular waterside worker.

 

* Notified in the Commonwealth Gazette on , 1968.

16740/67—Price 15c 9/28.12.1967

 

Delegation by Authority.

4. Section 14 of the Stevedoring Industry Act applies in relation to a power or function conferred on the Authority by these Regulations as if the power or function were conferred by that Act.

Part II.—Transfers from Part A to Part B of the Register of Waterside Workers

Transfer from Part A to Part B of the register of waterside workers.

5.—(1.) Subject to this regulation, there shall be transferred from Part A to Part B of the register of waterside workers at a permanent port or a continuous port the name of each waterside worker in Part A—

(a) who is, on the commencement of these Regulations, not less than 69 years of age or who subsequently attains that age;

(b)who is, on the first day of September, 1968, not less than 67 years of age or who subsequently attains that age; or

(c) who is, on the first day of September, 1969, not less than 65 years of age or who subsequently attains that age.

(2.) The name of a waterside worker to whom the last preceding sub-regulation applies shall not be transferred from Part A to Part B of the register of waterside workers if—

(a) in the case of a waterside worker who has attained before the commencement of these Regulations, or will attain within one month after the commencement of these Regulations, the age of 69 years—within two weeks after the commencement of these Regulations; or

(b)in the case of any other waterside worker—within one month before that sub-regulation will commence to apply to him,

the waterside worker and the association of employers at the port at which the waterside worker is registered request the Authority that his name be not so transferred.

(3.) The last preceding sub-regulation ceases to have effect with respect to a waterside worker—

(a) when he attains the age of 70 years; or

(b)if before that time the waterside worker or the association of employers notifies the Authority that he or it wishes to withdraw his or its request with respect to the waterside worker—when that notification is given.

(4.) Where a waterside worker is registered in Part A of the register of waterside workers at a permanent port or a continuous port and is not less than 60 years of age, he may request the Authority to transfer his name to Part B of the register and the Authority shall transfer his name accordingly.

Part III.—Dismissal and Cancellation or Suspension of Registration

Power of dismissal by registered employers of waterside workers.

6. Where a registered employer employs a waterside worker on a weekly hiring (whether the employment commenced before or after the commencement of these Regulations), the employer may dismiss the waterside worker from his employment without notice if, and only if—

(a) the employer is satisfied that the waterside worker is a waterside worker to whom one of the following sub-paragraphs applies and is of the opinion that, by reason of that fact, the cancellation or suspension of the registration of the waterside worker would be justified:—

(i) the waterside worker is, by reason of misconduct in or about a ship, wharf or employment office, unfit to be a registered waterside worker;

 

(ii) the waterside worker is, by reason of his physical or mental condition or his incompetence or inefficiency, not capable of properly carrying out the duties of a waterside worker or may be a danger to others;

(iii) the waterside worker has acted in a manner whereby the expeditious, safe or efficient performance of stevedoring operations has been prejudiced or interfered with;

(iv) the waterside worker has not regularly attended or made himself available for employment as a waterside worker with his employer;

(v) the waterside worker has failed to commence, continue or complete the performance of stevedoring operations that he was lawfully required to perform; or

(vi) the waterside worker has failed to comply with an order or direction of the Authority under the Stevedoring Industry Act or under these Regulations or an award of the Commission;

(b) the registration of the waterside worker has been cancelled or is suspended; or

(c) the dismissal is in accordance with a direction.

Power of registered employer to refuse to make use of the services of waterside worker.

7.—(1.) Where the holding company has allocated to a registered employer, for the performance of stevedoring operations by the registered employer, a waterside worker employed by the holding company, the registered employer may refuse to make use of the services of the waterside worker if, and only if—

(a) the registered employer is satisfied that the waterside worker is a waterside worker to whom one of the sub-paragraphs of paragraph (a)of the last preceding regulation applies; or

(b)the registration of the waterside worker has been cancelled or is suspended.

(2.) Where an employer refuses to make use of the services of a waterside worker under the last preceding sub-regulation, the employer shall make a report in writing to the holding company of the circumstances giving rise to his refusal.

Power of dismissal by the holding company of waterside workers.

8. Where the holding company employs a waterside worker on a weekly hiring (whether the employment commenced before or after the commencement of these Regulations), the holding company may dismiss the waterside worker from its employment if, and only if—

(a) the holding company is satisfied that the waterside worker is a waterside worker to whom one of the sub-paragraphs of paragraph (a)of regulation 6 of these Regulations applies and is of the opinion that, by reason of that fact, the cancellation or suspension of the registration of the waterside worker would be justified;

(b) the registration of the waterside worker has been cancelled or is suspended; or

(c) the dismissal is in accordance with a direction.

Employment by holding company of dismissed waterside workers.

9. The holding company may, if it thinks fit, employ on a weekly hiring a waterside worker who has been dismissed by a registered employer in accordance with paragraph (a)of regulation 6 of these Regulations unless the registration of the waterside worker has been cancelled or is suspended.

 

Dismissal of waterside worker.

10.—(1.) Where the employer of a waterside worker on aweekly hiring has dismissed the waterside worker in accordance with paragraph (a) of regulation 6, or paragraph (a)of regulation 8, of these Regulations, the employer shall, as soon as practicable after that dismissal, make a report in writing to the Authority of the circumstances giving rise to the dismissal and, in that report, recommend to the Authority either that the registration of the waterside worker be cancelled or that the registration of the waterside worker be suspended for a period specified in the report.

(2.) The Authority shall, as soon as practicable after it has received areport with respect to the dismissal of a waterside worker under the last preceding sub-regulation, hold such inquiry into the dismissal as it thinks fit.

(3.) On completion of the inquiry, the Authority shall make a finding either that the dismissal was justified or that the dismissal was not justified.

(4.) If the Authority finds that the dismissal was justified, the Authority shall, after taking into consideration the recommendation made by the employer—

(a)cancel the registration of the waterside worker;

(b) suspend that registration for such period as it thinks fit; or

(c) reprimand the waterside worker.

(5.) Where the Authority has reprimanded a waterside worker under the last preceding sub-regulation, the Authority shall—

(a) direct the employer who dismissed the waterside worker to offer to the waterside worker employment as a waterside worker on a weekly hiring at the port at which he was dismissed; and

(b)if the waterside worker is employed by the holding company under the last preceding regulation—direct the holding company to cease to employ the waterside worker.

(6.) Where the Authority has suspended the registration of awaterside worker under sub-regulation (4.) of this regulation, the Authority shall direct—

(a) where the waterside worker was dismissed by the holding company—the holding company; or

(b) in any other case—the holding company or the employer who dismissed the waterside worker, as the Authority thinks fit,

to offer to the waterside worker, at the end of the period of suspension of his registration, employment as a waterside worker on a weekly hiring at the port at which he was dismissed.

(7.) If the Authority finds that the dismissal was not justified, the Authority—

(a) shall direct the employer who dismissed the waterside worker to offer to the waterside worker employment as awaterside worker on a weekly hiring at the port at which he was dismissed;

(b)if the waterside worker is employed by the holding company under the last preceding regulation—shall direct the holding company to cease to employ the waterside worker; and

(c) may direct the employer to pay to the waterside worker an amount specified in the direction, being such amount as the Authority thinks proper to be paid by way of compensation for any loss of wages by the waterside worker arising out of the dismissal.

(8.) Any amount specified in a direction under the last preceding sub-regulation is, on the giving of the direction, payable by the employer to the waterside

 

worker and, if not paid, may be recovered from the employer by the waterside worker, as a debt due to the waterside worker, in any court of competent jurisdiction.

Certain provisions of section 36 of Stevedoring Industry Act not to apply.

11.—(1.) Paragraphs (a),(b),(c), (d), (e) and (g) of sub-section (1.) of section 36 of the Stevedoring Industry Act do not apply in relation to waterside workers employed on a weekly hiring.

(2.) Where, after such inquiry as it thinks fit, the Authority is satisfied that a waterside worker employed on a weekly hiring—

(a)has so conducted himself towards, or in the presence of, a member, officer or employee of the Authority in or about a ship, wharf or employment office that he is unfit to be a registered waterside worker;

(b)has failed to comply with an order or direction of the Authority under the Stevedoring Industry Act; or

(c) has left the employment of a registered employer or of the holding company in circumstances in which it may fairly be presumed that he does not intend to make his services available as a waterside worker,

the Authority may cancel or suspend the registration of the waterside worker.

(3.) The Authority shall, before cancelling or suspending the registration of a waterside worker under the last preceding sub-regulation—

(a) direct the employer of the waterside worker to produce to the Authority the record kept by the employer under regulation 18 of these Regulations in respect of the waterside worker and to furnish to the Authority a statement of the views of the employer as to the desirability of cancelling or suspending the registration of the waterside worker;

(b)direct any other person who has, after the commencement of these Regulations, been an employer of the waterside worker to produce to the Authority the record kept by the person under regulation 18 of these Regulations in respect of the waterside worker; and

(c) give consideration to the records so produced and the statement so furnished.

Employer to called upon for report before cancellation, &c., of registration of waterside workers.

12. The Authority shall, before cancelling or suspending, by virtue of paragraph (aa) or (f) of sub-section (1.) of section 36 of the Stevedoring Industry Act, the registration of a waterside worker employed on a weekly hiring—

(a)direct the employer of the waterside worker to produce to the Authority the record kept by the employer under regulation 18 of these Regulations in respect of the waterside worker and to furnish to the Authority a statement of the views of the employer as to the desirability of cancelling or suspending the registration of the waterside worker;

(b)direct any other person who has, after the commencement of these Regulations, been an employer of the waterside worker to produce to the Authority the record kept by the person under regulation 18 of these Regulations in respect of the waterside worker; and

(c) give consideration to the records so produced and the statement so furnished.

 

Receipt of benefit from the Fund.

13. Where a waterside worker whose name has been transferred to Part B of the register of waterside workers at a port by virtue of paragraph (c) of sub-section (2.) of section 31aof the Stevedoring Industry Act receives a payment by way of benefit from the Fund, his registration as a waterside worker shall be cancelled.

Refusal of waterside worker to accept employment.

14.—(1.) Where, after such inquiry as it thinks fit, the Authority is satisfied that a waterside worker at a permanent port has refused to accept employment offered to him at the port by a registered employer or by the holding company, the Authority may cancel the registration of the waterside worker.

(2.) The Authority shall not take any action under the last preceding sub-regulation unless it has received a request in writing to do so from the registered employer concerned or from the holding company.

Cancellation, &c., to be deemed to be cancellation, &c., under section 36 of the Stevedoring Industry Act.

15. Where the Authority, in pursuance of these Regulations, cancels or suspends the registration of a waterside worker, that cancellation or suspension shall, for the purposes of the Stevedoring Industry Act, be deemed to be a cancellation or suspension, as the case may be, under sub-section (1.) of section 36 of that Act.

Compensation payable on variation, &c., of suspension of waterside worker.

16.—(1.) Where the Authority, under sub-section (3d.) of section 36 of the Stevedoring Industry Act, varies or sets aside the suspension of the registration of a waterside worker who was employed on a weekly hiring by an employer and whose dismissal from that employment was the ground for the suspension of his registration, the Authority may direct the employer to pay to the waterside worker an amount specified in the direction, being such amount as the Authority thinks proper to be paid by way of compensation for any loss of wages arising out of the suspension of registration.

(2.) Any amount specified in a direction under the last preceding sub-regulation is, on the giving of the direction, payable by the employer to the waterside worker and, if not paid, may be recovered from the employer by the waterside worker, as a debt due to the waterside worker, in any court of competent jurisdiction.

Application of section 37a of the Stevedoring Industry Act.

17. For the purposes of the application of section 37aof the Stevedoring Industry Act in relation to the suspension or cancellation of the registration of a waterside worker who was employed on a weekly hiring by an employer and whose dismissal from that employment was the ground for the suspension or cancellation, the references in sub-section (1.) and sub-section (1a.) of that section to the Authority shall be read as a reference to the employer.

Employers to keep records.

18. An employer shall, in respect of each waterside worker employed by him on a weekly hiring, keep an adequate record of all disciplinary action taken by the employer in respect of the waterside worker.

Application of section 36a of the Stevedoring Industry Act.

19. Section 36aof the Stevedoring Industry Act applies in relation to any inquiry made by the Authority under this Part as if the inquiry were an inquiry under section 36 of the Stevedoring Industry Act.

Part IV.—Long Service Leave

20.—(1.) A day (other than a Sunday) that—

Qualifying day for long service leave.

(a)is included in a period during which a person was employed as a waterside worker on a weekly hiring at a permanent port or a continuous port;

(b)is included in a period of qualifying service of the person for the purposes of Part IIIaof the Stevedoring Industry Act, not being a

period in respect of which the person has, before the commencement of these Regulations, become entitled to long service leave under that Part; and

(c) would not, but for this regulation, be a qualifying day for the purposes of that Part,

shall, by force of this regulation, be deemed to be a qualifying day for the purposes of that Part.

(2.) Where—

(a) awaterside worker employed on a weekly hiring is dismissed by his employer; and

(b)the Authority finds that the dismissal was not justified and directs the employer to offer to the waterside worker employment on a weekly hiring,

the waterside worker—

(c) shall, for the purposes of Part IIIaof the Stevedoring Industry Act, be deemed not to have been dismissed; and

(d)shall, for the purposes of paragraph (a)of the last preceding sub-regulation, be deemed to have been employed as a waterside worker on a weekly hiring at the port at which he was dismissed during any period, after his dismissal and before his employment in accordance with the direction of the Authority, during which he was not so employed.

Entitlement to long service leave.

21.—(1.) Where—

(a)a person whose period of qualifying service is five years or more ceases to be a registered regular waterside worker at a port that is a permanent port or a continuous port and the Authority, on the application of the person, certifies in writing that the person’s ceasing to be so registered arose from the cancellation of his registration on the ground that his services were no longer required because the number of waterside workers at the port was in excess of the quota for the port; or

(b)a person whose period of qualifying service is ten years or more ceases to be a registered regular waterside worker at a port that is a permanent port or a continuous port and the Authority, on the application of the person, certifies in writing that the person’s ceasing to be so registered arose from a request to cancel his registration made by him after he attained the age of sixty years

the person shall be deemed to have been entitled, immediately before he ceased to be so registered, to long service leave under section 45dof the Stevedoring Industry Act—

(c) if he had become entitled to long service leave under that Act before ceasing to be so registered—in respect of that part of his qualifying service that commenced immediately after he became, or last became, so entitled; or

(d) in any other case—in respect of the period of his qualifying service.

(2.) In this regulation, a reference to qualifying service shall be read as a reference to any service that is qualifying service for the purposes of Part IIIa of the Stevedoring Industry Act.

Assessed amount of pay for day of long service leave.

22. For the purposes of Part IIIaof the Stevedoring Industry Act, the assessed amount of pay for a day of long service leave included in a period of long service leave that commences after the thirtieth day of June, 1968, is an amount equal to one-sixth of—

 

(a) the amount determined by the Authority under section 45jof that Act to be the average weekly earnings of registered regular waterside workers at continuous ports during the period of twelve months ending on the thirty-first day of December, 1967; or

(b)the amount of the lowest ordinary weekly rate of pay for waterside workers employed on a weekly hiring prescribed by Part II. of the Waterside Workers Award in force under the Conciliation and Arbitration Act1904-1967 when the period of long service leave commences,

whichever is the greater amount.

Scheme under State law, &c., not to apply to employment on weekly hiring.

23.—(1.) Subject to this regulation, a scheme providing for long service leave for employees provided by or under a law of a State or Territory of the Commonwealth does not apply in relation to a period of employment (whether before or after the commencement of these Regulations) of a waterside worker on a weekly hiring at a permanent port or a continuous port.

(2.) The last preceding sub-regulation—

(a)does not apply in relation to a period of employment that—

(i) is a period of qualifying service for the purposes of Part IIIa of the Stevedoring Industry Act; and

(ii) has not been, and will not be, taken into account for the purposes of an entitlement to long service leave under that Part; and

(b)does not affect any entitlement to long service leave under a scheme referred to in that sub-regulation that has accrued before the commencement of these Regulations.

Part V.—Allocation of Labour

Increase in the number of waterside workers employed by an employer.

24.—(1.) Where, after such inquiry as it thinks fit, the Authority is satisfied that—

(a) the labour of waterside workers available for stevedoring operations at a permanent port would be used to better advantage if the number of waterside workers employed by a registered employer on a weekly hiring at the port were increased by a particular number and the number of waterside workers employed by the holding company on a weekly hiring at the port were correspondingly reduced; and

(b)if the number of waterside workers so employed by the registered employer were increased by that number, there would not be an excessive number of shifts during which waterside workers employed by the registered employer would be available for work but would not be required to work,

the Authority may direct the holding company to release from its employment at that port the necessary number of waterside workers with a view to the waterside workers so released being employed by the registered employer on a weekly hiring at the port.

(2.) The Authority—

(a) shall not take any action under the last preceding sub-regulation unless it has received a request in writing to do so from the registered employer concerned; and

(b)shall not specify in a direction under the last preceding sub-regulation a number of waterside workers in excess of the number specified in the request made by the registered employer.

 

Reduction in the number of waterside workers employed by an employer.

25.—(1.) Where, after such inquiry as it thinks fit, the Authority is satisfied that—

(a) there is an excessive number of shifts during which waterside workers employed by a registered employer on a weekly hiring at a permanent port are available for work but are not required to work; and

(b)the labour of waterside workers available for stevedoring operations at the port would be used to better advantage if the number of waterside workers employed by the registered employer on a weekly hiring at the port were reduced by a particular number and the number of waterside workers employed by the holding company on a weekly hiring at the port were correspondingly increased,

the Authority may direct the registered employer to release from its employment at the port the necessary number of waterside workers with a view to the waterside workers so released being employed by the holding company on a weekly hiring at the port.

(2.) The Authority shall not takes any action under the last preceding sub-regulation unless it has received a request in writing to do so from the holding company or from a registered employer at the port.

Direction to holding company to allocate labour.

26.—(1.) A registered employer at a permanent port who considers that the holding company has failed, without reasonable and proper cause, to make available to him for the performance by him of particular stevedoring operations at the port such number of waterside workers as is required for the expeditious, safe and efficient carrying out of those operations may request the Authority to direct the holding company to make available to him for the performance of those operations such number of waterside workers as, in the opinion of the Authority, is required for that purpose.

(2.) Where, after such inquiry as it thinks fit, the Authority is satisfied that the request is justified, the Authority may direct the holding company accordingly.

(3.) A direction under the last preceding sub-regulation does not affect any allocation of waterside workers made by the holding company before the receipt by the holding company of the direction.

Priority in the allocation of labour to stevedoring operations.

27.—(1.) Where—

(a) a registered employer at a permanent port has agreed to carry out stevedoring operations at the port with respect to a ship in the port; and

(b)the Authority considers that those stevedoring operations should be undertaken and completed as expeditiously as possible,

the Authority may give such directions to the registered employer or to the holding company with respect to the allocation for the purpose of carrying out stevedoring operations (whether stevedoring operations referred to in sub-section (3.) of section 7 of the Stevedoring Industry Act or not) of waterside workers employed by the employer or by the holding company, as the case may be, as appear to the Authority to be necessary to ensure that the first-mentioned stevedoring operations are undertaken and completed as expeditiously as possible.

(2.) A direction to a registered employer or to the holding company under the last preceding sub-regulation does not affect any allocation of waterside workers made by the registered employer or by the holding company, asthe case may be, before the receipt by the registered employer or by the holding company, as the case may be, of the direction.

 

Part VI.—General

Authority not to exercise certain powers.

28.—(1.) The Authority shall not, with respect to waterside workers employed on a weekly hiring—

(a)exercise any power conferred on the Authority by the Stevedoring Industry Act for the purpose of performing a function set out in any of the following paragraphs, or sub-paragraphs of paragraphs, of sub-section (1.) of section 17 of that Act:—

(i) sub-paragraph (i) of paragraph (c);

(ii) sub-paragraph (ii) of paragraph (d);

(iii) paragraph (e);

(iv) paragraph (f);

(v) paragraph (g); and

(vi) paragraph (h); or

(b) make any payment in accordance with an award of the Commission.

(2.) The last preceding sub-regulation does not prevent the payment by the Authority of any amount that was payable, but not paid, by the Authority immediately before the commencement of these Regulations.

Directions of the Authority.

29.—(1.) A direction may be given orally or in writing.

(2.) A direction given orally shall be given to the person required to comply with the direction.

(3.) Where a direction is given orally, the Authority shall, within twenty-four hours thereafter, record the direction in writing and, as soon as practicable, serve personally or by post a copy of the record on the person to whom the direction was given.

(4.) A direction given in writing shall be served personally or by post on the person required to comply with the direction.

Penalty.

30. A person who fails to comply with a provision of, or a direction under, these Regulations is guilty of an offence against these Regulations punishable upon conviction by a fine not exceeding One hundred dollars.

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By Authority: A. J. Arthur, Commonwealth Government Printer, Canberra