employee relations act 1992 · employee relations act 1992 [assented to 24 november 1992] the...

Employee Relations Act 1992 No. 83 of 1992

TABLE OF PROVISIONS

PART 1—PRELIMINARY MATTERS

Section 1. Purposes 2. Commencement 3. Objects 4. Definitions 5. Governor in Council may declare body to be a public body 6. Act binds the Crown 7. Application of Act

PART 2—EMPLOYMENT AGREEMENTS

8. Collective employment agreements / 9. Individual employment agreements

10. Employment agreements to be in writing 11. When an employment agreement ends 12. Changing employment agreements 13. Lodging employment agreements 14. The contents of employment agreements 15. Exemption from minimum terms and conditions for slow or infirm workers 16. Minimum terms and conditions do not apply to certain students 17. How employment agreements work 18. How employment agreements relate to awards 19. Breach of employment agreement

PART 3—AWARDS 20. Form of award 21. Publ ication of award 22. Commencement and variation of awards 23. Application of awards 24. When an award ends 25. Contents of awards 26. No automatic flow on of terms of employment agreements 27. Award has no effect if inconsistent with this Act 28. Copy of award to be made available to employees 29. If meaning of award not clear 30. Award rate applies to award work 31. Award rates do not apply to spouse etc. of employer 32. Awards do not apply to people in sheltered workshops etc. 33. Exemption from awards for slow or infirm workers

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34. Awards do not apply to certain students 35. Award conditions apply to all people under 18 who do award work

PART 4—INDUSTRIAL ACTION 36. Participation in industrial action 37. Industrial action and picketing—legal remedies and immunity

PART 5—PROVISIONS CONCERNING SPECIFIC INDUSTRIAL MATTERS

Division 1—Harsh, Unjust or Unreasonable Dismissals 38. Right to contest harsh, unjust or unreasonable dismissal 39. Which employees can use this Division 40. Time in which application to be lodged 41. Procedure concerning applications 42. Orders

Division 2—Records 43. Employment records 44. Offence to falsify records >

\ Division 3—Pay

45. Employer must give employee pay slip 46. Employer must give employee employment details 47. Payment of employees 48. Pay must be paid in cash or other agreed way 49. Prohibition against payment in kind 50. Deductions from pay

Division 4—Secret Ballots 51. Secret ballots may authorise industrial action 52. Offences in relation to ballot

Division 5—Freedom of Association 53. Objects 54. Voluntary membership 55. Prohibition on preference and discrimination

Division 6—Long Service Leave 56. Basic entitlement to long service leave 57. Additional entitlement to long service leave if employment stops after 15 years 58. Entitlement to long service leave if employment stops after 10 years 59. Definition of "employer" and "employee" 60. Meaning of "one employer" 61. Employer may apply to reverse the effect of section 60 (5) and (8) 62. Meaning of "continuous employment" 63. Whether interruptions are to be included in the period of employment 64. Meaning of "ordinary pay"

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65. Employees to whom this Division does not apply 66. When leave is to be taken 67. Leave period may be split 68. Payments while on leave 69. Pay increases while on leave 70. Whether holidays occurring during leave count 71. Leave in advance 72. What is to happen if employment ends before leave taken 73. What is to happen if the employee dies before leave is taken 74. Payments in lieu forbidden 75. Settlement of disputes concerning leave 76. Decision of Commission final 77. Procedure of the Commission 78. Offences concerning leave 79. Contracting out prohibited 80. Records 81. Money due to employee to be treated as arrears of pay

PART 6—THE FRAMEWORK OF THE SYSTEM

82. The Employee Relations Commission 83. Functions of the Commission 84. Forms in which the Commission may sit 85. Form of Commission in Full Session 86. Panels 87. Appointment under disputes procedures 88. Commission Administration Office 89. Functions of the Commission Administration Office

PART 7—COMMENCEMENT OF PROCEEDINGS

90. Who can apply to bring a matter or dispute before the Commission? 91. Application for award if there is no award 92. Proceedings before the Commission 93. President to decide how matter or dispute to be dealt with 94. Chief Commission Administration Officer must inform parties to dispute of

proceedings 95. Rules 96. Regulations 97. Conflict between rules and regulations

PART 8—POWERS OF THE COMMISSION

98. General powers of the Commission in industrial matters or disputes 99. Certain matters only to be dealt with by Commission in Full Session

100. Other general powers of the Commission 101. Commission in Full Session may direct an investigation

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PART 9—POWERS AND DUTIES OF THE PRESIDENT, THE CHIEF COMMISSION ADMINISTRATION OFFICER AND THE MINISTER

Division 1—The President 102. Commission business 103. General powers 104. Annual report

Division 2—The Chief Commission Administration Officer 105. Commission Administration Office business 106. General powers 107. General duty 108. Chief Commission Administration Officer is subject to the directions of the

President 109. Annual report 110. Acting Chief Commission Administration Officer

Division 3—The Minister 111. Power to intervene in any proceedings 112. Appearance by the Minister in proceedings 113. Power to refer matters to Commission or Chief Commission Administration

Officer 114. Minister must send President's annual report to Parliament

PART 10—COMPLEMENTARY INDUSTRIAL RELATIONS SYSTEM 115. Joint proceedings 116. President may nominate member to exercise federal powers 117. Reference of industrial matter to Federal Commission 118. Conference with other industrial authorities

PART 11—HOW PROCEEDINGS ARE TO BE CONDUCTED

Division 1—General

119. Commission to act fairly and without regard to technicalities 120. Conciliation must be tried before arbitration 121. Commission to take certain things into account 122. Commission to encourage dispute resolution procedures 123. Commission to have regard to compliance with dispute procedures 124. Disclosure of interest by members 125. Transfer of proceedings to Commission in Full Session 126. Proceedings to be public unless it is directed otherwise 127. Submissions to the Commission 128. Representation 129. Immunity of participants 130. Commission generally to be cost free jurisdiction 131. Contempt of Commission 132. Offence to disclose confidential information

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Division 2—Commission in Full Session 133. How result determined if opinion divided 134. Change of members during a hearing

PART 12—RECOGNITION OF ASSOCIATIONS 135. Application for recognition 136. Grant of recognition 137. Revocation of recognition 138. Rights of recognised associations 139. Recognition of employers

PART 13—APPEALS

Division 1—Appeals to the Commission in Full Session 140. What can be appealed 141. Who can appeal 142. Time limit on appeals 143. Decisions and awards stayed pending outcome of appeal 144. Powers of the Commission on appeal

Division 2—Referrals from the Commission 145. Referral of question of law to Full Court

PART 14—INSPECTORS 146. Appointment 147. Certificate of appointment 148. Functions of inspectors 149. Powers of inspectors 150. Offences concerning inspectors 151. Employer must not prejudice workers for giving information 152. Inspectors are inspectors under other Acts also

PART 15—PROSECUTIONS, EVIDENCE AND RECOVERY OF MONEY 153. Proceedings for offences to be brought in Industrial Division of the Magistrates'

Court 154. Who can prosecute under this Act? 155. Judicial notice of signatures 156. Official awards and certificates are evidence 157. Proof of age 158. Conduct of agents imputed to corporations 159. Reverse onus of proof in certain cases 160. Recovery of money owed 161. Court may order payment of arrears on conviction 162. Recovery of unpaid superannuation

PART 16—MISCELLANEOUS OFFENCES AND PROVISIONS 163. Awards and employment agreements must be complied with

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164. Attempting, aiding, inducing etc. offences 165. Offence to discriminate for industrial reasons 166. Interval for meals 167. Certain guarantees illegal 168. Supreme Court—limitation of jurisdiction

PART 17—REGULATIONS 169. Regulations

PART 18—SAVINGS, TRANSITIONAL AND CONSEQUENTIAL PROVISIONS 170. Definitions 171. Proceedings 172. Awards, orders and certified agreements 173. Appeals 174. Power to resolve transitional difficulties 175. Personnel 176. Magistrates' Court proceedings 177. Transition from former Commission 178. Annual leave or maternity leave under former Act 179. Repeals 180. Amendments of House Contracts Guarantee Act 1987 181. Amendment of Magistrates' Court Act 1989 182. Amendment of Trade Unions Act 1958 183. Amendment of Legal Profession Practice Act 1958 184. Minor consequential amendments

SCHEDULES

SCHEDULE 1

MINIMUM TERMS AND CONDITIONS OF EMPLOYMENT

PART 1—GENERAL 1. Minimum terms and conditions of employment

PART 2—MATERNITY LEAVE 2. Nature of leave 3. Definitions 4. Eligibility for maternity leave 5. Certification 6. Notice requirements 7. Transfer to a safe job 8. Variation of period of maternity leave 9. Cancellation of maternity leave

10. Special maternity leave and sick leave 11. Maternity leave and other leave entitlements 12. Effect of maternity leave on employment

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13. Termination of employment 14. Return to work after maternity leave 15. Replacement employees

PART 3—PATERNITY LEAVE

16. Nature of leave 17. Definitions 18. Eligibility for paternity leave 19. Certification 20. Notice requirements 21. Variation of period of paternity leave 22. Cancellation of paternity leave 23. Paternity leave and other leave entitlements 24. Effect of paternity leave on employment 25. Termination of employment 26. Return to work after paternity leave 27. Replacement employees

PART 4—ADOPTION LEAVE

28. Nature of leave 29. Definitions 30. Eligibility for adoption leave 31. Certification 32. Notice requirements 33. Variation of period of adoption leave 34. Cancellation of adoption leave 35. Special leave 36. Adoption leave and other entitlements 37. Effect of adoption leave on employment 38. Termination of employment 39. Return to work after adoption leave 40. Replacement employees

PART 5—PART-TIME EMPLOYMENT

41. Definitions 42. Entitlement 43. Return to former position 44. Effect of part-time employment on continuous service 45. Pro rata entitlements 46. Transitional arrangements—annual leave 47. Transitional arrangements—sick leave 48. Part-time employment agreement 49. Termination of employment 50. Extension of hours of work 51. Nature of part-time employment 52. Inconsistent award provisions 53. Replacement employees

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SCHEDULE 2

CODE OF PRACTICE FOR INDUSTRIAL ACTION SECRET BALLOTS

SCHEDULE 3

APPOINTMENT AND CONDITIONS OF EMPLOYMENT OF MEMBERS OF THE COMMISSION

Qualifications needed for appointment Seniority of members Dual Federal and State appointments Tenure of members Members may work on a part-time basis Resignation of member Removal of member from office Outside employment of member Salary and allowance of members Application of State Superannuation Act 1988 Leave of absence of members Members must stay informed Oath of office Acting President Acting Members

SCHEDULE 4

THE CHIEF COMMISSION ADMINISTRATION OFFICER Tenure of office Resignation Removal from office Salary, allowances and other conditions Outside employment Disclosure of interest Leave of absence Application of State Superannuation Act 1988 Right to return to public service Acting Chief Commission Administration Officer

SCHEDULE 5

PROVISIONS DEEMED TO BE INCORPORATED INTO AWARDS UNDER SECTION 172 (5)

1. Stand-down of employees 2. Settlement of disputes

SCHEDULE 6

CONSEQUENTIAL AMENDMENTS 1. Accident Compensation Act 1985 2. Appeal Costs Act 1964

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1. 2. 3. 4. 5. 6. 7. 8. 9.

10. 11. 12. 13. 14. 15.

1. 2. 3. 4. 5. 6. 7. 8. 9.

10.

3. BLF (De-recognition) Act 1985 4. Construction Industry Long Service Leave Act 1983 5. Country Fire Authority Act 1958 6. Education Act 1958 7. Equal Opportunity Act 1984 8. Fundraising Appeals Act 1984 9. Health Services (Conciliation and Review) Act 1987

10. Intellectually Disabled Persons' Services Act 1986 11. Labour and Industry Act 1958 12. Market Court Act 1978 13. Mental Health Act 1986 14. Metropolitan Fire Brigades Act 1958 15. Occupational Health and Safety Act 1985 16. Pharmacists Act 1974 17. Police Regulation Act 1958 18. Post-Secondary Education Act 1978 19. Pre-school Teachers and Assistants (Leave) Act 1984 20. Shop Trading Act 1987 21. Teaching Service Act 1981 22. Vocational Education and Training Act 1990

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Victoria

No. 83 of 1992

Employee Relations Act 1992

[Assented to 24 November 1992]

The Parliament of Victoria enacts as follows:

PART 1—PRELIMINARY MATTERS

1. Purposes

1 he purposes of this Act are—

(a) to make fresh provision with respect to the law relating to employee relations in Victoria; and

(b) to repeal the Industrial Relations Act 1979 and the Hospitals Remuneration Tribunal Act 1978; and

(c) to amend the Trade Unions Act 1958, the House Contracts Guarantee Act 1987 and the Magistrates' Court Act 1989.

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Employee Relations Act 1992 s.2 Act No. 8311992

2. Commencement

(1) Section 1 and this section come into operation on the day on which this Act receives the Royal Assent.

(2) The remaining provisions of this Act come into operation on a day or days to be proclaimed.

3. Objects

The objects of this Act are—

(a) to promote efficient and productive industry in Victoria and an efficient labour market;

(b) to establish an employee relations system for Victoria which facilitates the freedom of employers and employees to choose how they regulate their own affairs;

(c) to facilitate the prevention and settlement of disputes between employees and employers and provide a framework which assists in the maintenance of sound relationships between employees and employers;

(d) to promote industrial harmony and co-operation between employees and employers in Victoria;

(e) to ensure that fundamental civil liberties are protected including freedom of association;

(/) to provide a framework for the prevention and settlement of disputes and the orderly and fair handling of industrial matters in order to minimise disruption to the community;

(g) to ensure that in the prevention and settlement of disputes and in the orderly and fair handling of industrial matters proper regard is had to the interests of the Victorian community as a whole and to the interests of the parties immediately concerned;

(h) to facilitate the prompt settlement of industrial matters in a fair manner by agreement,

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Employee Relations Act 1992 Act No. 83/1992 s.4

conciliation, mediation and arbitration with the minimum of legal form and technicality;

(i) to provide for the observance and enforcement of dispute settlement procedures, awards and employment agreements;

(/) to enable the operations of the employee relations system in Victoria to complement the system established by the Industrial Relations Act 1988 of the Commonwealth.

4. Definitions

In this Act—

"award" means any determination, order or decision of the Commission that it has put into writing and that it intends to be an award;

"business day" means a day on which the Commission Administration Office is open to the public;

"Chief Administrator" means the Secretary to the ' Department of Business and Employment;

"Chief Commission Administration Officer" means the Chief Commission Administration Officer appointed under this Act;

"Commission" means the Employee Relations Commission of Victoria;

"employee" does not include any person engaged under a contract for services;

"employer" includes any person employing an employee, including the Crown and a public body;

"employment agreement" means an agreement entered into under Part 2;

"Federal Commission" means the Australian Industrial Relations Commission;

"industrial action" means—

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Employee Relations Act 1992 Act No. 8311992

(a) a failure or refusal by an employee to attend for work (unless the failure is authorised by the employer); or

(b) a failure or refusal by an employee to work or to work as directed by an employer or a ban, limitation or restriction on the performance of work; or

(c) a failure or refusal by an employer to engage employees on work that they normally perform when those employees are ready and willing unconditionally to perform that work as directed when the failure or refusal is for the purpose of compelling any employees to accept terms of employment specified, or comply with demands made, by the employer—

but does not include any stoppage or cessation of work engaged in for the purpose of avoiding accident or injury;

"industrial authority" means the Federal Commission and any other body authorised by a law of Victoria, the Commonwealth or any other State or a Territory to hear and determine industrial matters or disputes;

"industrial dispute" means a dispute between— (a) an employer and one or more employees; or (b) one or more recognised associations of

employees and one or more employers or recognised associations of employers; or

(c) 2 or more recognised associations of employees—

concerning, or arising from, anything to do with an industrial matter and includes a threatened, probable or impending dispute;

"industrial matter" means anything which concerns, or arises from, the employment of a person and includes, without limiting the generality of this definition, anything to do with—

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Employee Relations Act 1992 Act No. 8311992 s.4

(a) the days and hours of work; (b) pay, superannuation and reward;

(c) the rights and duties of employers and employees;

(d) the mode and conditions of work; (e) the employment or non-employment of

people of any particular age; (/) the demarcation between the rights, status

and functions of members of a particular recognised association of employees in relation to the members of other recognised associations of employees;

(g) the demarcation of functions between particular employees, or classes of employee;

(h) the duties of employers when introducing new technology to a workplace (including the notice to be given to employees if they are to be dismissed because of new technology);

(i) retrenchments and redundancies, and the notice to be given if an employee is dismissed;

(/*) the dismissal of employees; (k) questions of what is fair and right in relation

to any industrial matter having regard to the people immediately concerned and of society as a whole;

(/) the relations between employers and employees;

"industry" means— (a) any business, trade, manufacture,

undertaking or calling of employers; or (b) an employer, a branch of an industry or a

group of industries;

"medical practitioner" means a legally qualified medical practitioner registered under the Medical Practitioners Act 1970;

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Employee Relations Act 1992 Act No. 83/1992

"other Act" includes an Act of the Commonwealth and of any State or Territory;

"panel" means a panel created under section 86;

"President" means the President of the Commission;

"public body" includes—

(a) any body created by or under an Act;

(b) any municipal council;

(c) any body declared by Order of the Governor in Council under section 5 to be a public body;

"recognised association" means an association of employers or employees recognised under Part 12 and includes an employer who, by virtue of section 139, has the same rights and responsibilities as a recognised association;

"records" includes any registers, certificates, notices, pay sheets and other documents;

"shop" means a building, structure, place or vehicle or any part of a building, structure, place or vehicle—

(a) in or at which goods are sold or exposed or offered for sale by retail on one or more occasions; or

(b) in or at which the business of a hairdresser, shoe repairer, dry cleaner, tailor, dressmaker, photographer or undertaker is carried on;

"trade union" means— (a) a trade union within the meaning of the

Trade Unions Act 1958; or (b) a recognised association—

and includes all of its officers and members;

"workplace" includes, in relation to any group of employees working for an employer, any place at which the employees are required to report (whether in person, by telephone or by any other

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means) for any purpose connected with the employer's business.

5. Governor in Council may declare body to be a public body

The Governor in Council may, by Order published in the Government Gazette, declare any body to be a public body.

6. Act binds the Crown

This Act binds the Crown in right of the State of Victoria, and also, so far as the legislative power of Parliament permits, the Crown in all its other capacities.

7. Application of Act

(1) This Act applies to a person appointed under section 8, 8A, 103 or 118B of the Police Regulation Act 1958.

(2) Despite anything to the contrary in this Act, the . Commission does not have power to hear and determine or otherwise deal with any question in an industrial dispute concerning the dismissal or dispensing with services or threatened dismissal or dispensing with services of a person referred to in sub-section (1).

(3) A person or body, corporate or unincorporate, nominated by the Governor in Council as the employer of a person referred to in sub-section (1) must be taken to be that person's employer for the purposes of this Act. The nominated employer may nominate a representative who must be taken to be the employer's representative for the purposes of this Act.

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PART 2—EMPLOYMENT AGREEMENTS

8. Collective employment agreements

(1) An employer may enter into a collective employment agreement with any or all of the employees employed by the employer.

(2) Two or more employers may enter into a collective employment agreement with any or all of the employees employed by them.

(3) An employer may, in negotiating for a collective employment agreement, negotiate with— (a) the employees themselves; or (b) if the employees so wish, any representative or

committee of employees authorised by the employees to represent them.

(4) New employees may be covered by a collective employment agreement applying to employees of an employer if the employer and the new employee so agree.

9. Individual employment agreements

(1) An employee who is not covered by a collective employment agreement and his or her employer may enter into any individual employment agreement that they think fit.

(2) An employee who is covered by a collective employment agreement and his or her employer may nevertheless negotiate terms and conditions of employment on an individual basis. Any terms and conditions of employment agreed between the employer and the employee that modify the collective employment agreement must be put in writing. In the case of any inconsistency between the collective employment agreement and an individual employment agreement, the individual agreement prevails.

(3) An employer may, in negotiating for an individual employment agreement, negotiate with— (a) the employee himself or herself; or

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Employee Relations Act 1992 Act No. 83/1992 s. 10

(b) if the employee so wishes, any representative authorised by the employee to represent him or her.

10. Employment agreements to be in writing

(1) Every collective employment agreement must be in writing and must clearly state the parties to the agreement, including the employees or categories of employee covered by the agreement and be signed by or on behalf of those parties. An individual employment agreement must be in writing and be signed by or on behalf of the employer and the employee. I

(2) Every employer bound by an employment agreement must, on being requested to do so by an employee also bound by it, give a copy of the agreement to that employee as soon as possible.

11. When an employment agreement ends

(1) A collective employment agreement must specify the date on which it expires which must not be more than 5 years after the date on which it came into force.

(2) Collective employment agreements cease to apply on their expiry.

(3) If a collective employment agreement expires, each employee who continues to be employed by the employer and the employer are, unless the employer and the employee make a new agreement, bound by an individual employment agreement with the same terms and conditions as those that applied to the employee and the employer under the expired collective employment agreement.

12. Changing employment agreements

The parties to a collective employment agreement may not vary any term of the agreement unless the variation is necessary to remove an ambiguity or uncertainty.

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s. 13 Employee Relations Act 1992

Act No. 83/1992

13. Lodging employment agreements

(1) If a collective employment agreement is entered into, an employer bound by it must, within 14 days after the coming into force of the agreement, lodge a copy with the Chief Commission Administration Officer.

(2) In July of each year every employer in Victoria must notify the Chief Commission Administration Officer of the number of individual employment agreements by which they are bound as at 30 June of the relevant year.

(3) The information contained in a copy of an agreement lodged with the Chief Commission Administration Officer under sub-section (1) is only available to the parties to the agreement or a person with authority to enforce the provisions of the agreement on behalf of a party to it.

14. The contents of employment agreements

(1) Employment agreements may contain provisions concerning some or all of the terms and conditions of employment.

(2) The minimum terms and conditions of employment for employees who are parties to employment agreements are those contained in Schedule 1.

(3) A provision of an employment agreement is of no effect to the extent that it provides a term or condition of employment that is less favourable to an employee than the minimum applicable under this section.

(4) Employment agreements must contain provisions—

(a) that set out procedures to be followed to prevent or settle claims, disputes or grievances that arise during the currency of the agreement;

(b) for the standing-down of employees who cannot be usefully employed because of any strike, breakdown of machinery or any stoppage of work for any cause for which the employer cannot reasonably be held responsible.

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Employee Relations Act 1992 Act No. 8311992 s. 15

(5) The standing down of an employee under a provision described in sub-section (4) (b) does not break the continuity of employment of the employee for the purpose of any entitlements.

15. Exemption from minimum terms and conditions for slow or infirm workers

(1) An employer need not pay a person holding a certificate of exemption under this section the relevant minimum rate of pay applicable under clause 1 (c) of Schedule 1.

(2) The Chief Commission Administration Officer may give a person a certificate of exemption if he or she is satisfied that because of the person's age, infirmity or slowness, the person is unable to obtain work at the relevant minimum rate applicable under clause 1 (c) of Schedule 1.

(3) The Chief Commission Administration Officer must specify a minimum rate of pay in a certificate of exemption.

(4) A certificate of exemption is valid for 12 months.

(5) The Chief Commission Administration Officer may renew a certificate of exemption from time to time for a further 12 months.

(6) If the Chief Commission Administration Officer refuses to grant or renew a certificate of exemption under this section, the person seeking the certificate may appeal to the Industrial Division of the Magistrates' Court.

(7) An employer must not—

(a) directly or indirectly pay, or offer to pay, a person holding a certificate of exemption at a lower rate than the minimum rate specified in the certificate of exemption; or

(b) employ, without the written consent of the Chief Commission Administration Officer, more than one person holding a certificate of exemption

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s.16 Employee Relations Act 1992

Act No: 8311992

under this section or section 33 unless the number of people holding such certificates employed does not exceed one-fifth of the total number of people employed by that employer.

Penalty applying to this sub-section: 10 penalty units.

16. Minimum terms and conditions do not apply to certain students

(1) An employer need not pay a student holding a certificate of exemption under this section the relevant minimum rate of pay applicable under clause 1 (c) of Schedule 1.

(2) The Chief Commission Administration Officer may give a student a certificate of exemption if he or she is satisfied that the student—

(a) is undertaking a course in a post-secondary educational institution; and

(b) is required to work during those studies for the purpose of gaining knowledge and skill which relates to those studies.

(3) The Chief Commission Administration Officer may impose conditions on a certificate of exemption.

(4) The student and any employer must comply with any conditions imposed.

Penalty: 10 penalty units.

17. How employment agreements work

Subject to section 14, once an employment agreement has been made—

(a) the provisions of the agreement have the same effect, and can be enforced in accordance with this Act in the same way, as an award;

(b) the provisions of the agreement prevail over any provision of an award which is inconsistent with them and which purports to apply to a person bound by the agreement.

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18. How employment agreements relate to awards

An employment agreement may provide that some or all of the provisions of an award shall not apply.

19. Breach of employment agreement

(1) The Industrial Division of the Magistrates' Court has jurisdiction to hear and determine any cause of action for damages, or any claim for equitable relief, arising out of or related to a breach of an employment agreement, irrespective of the amount claimed or the value of the relief sought.

(2) However, the Industrial Division of the Magistrates' Court must not, in any proceeding for breach of an employment agreement, award damages against any individual employee in excess of $5000.

(3) Despite anything to the contrary in any Act, the jurisdiction of the Industrial Division of the Magistrates' Court in relation to any matter referred to in sub-section (1) is exclusive.

PART 3—AWARDS

20. Form of award

(1) An award must—

(a) be worded so as best to express the wishes of the parties or, in the case or arbitration, the decision of the Commission; and

(b) avoid unnecessary technicality; and

(c) be signed—

(i) if made by the Commission in Full Session, by the presiding member; or

(ii) if made by a member of the Commission sitting alone, by that member; and

(d) be dated with the date on which it was signed.

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Act No. 8311992

(2) The Commission must put every determination, order or decision that it makes, and that it intends to be an award, in writing as soon as possible.

21. Publication of award

The Chief Commission Administration Officer must cause every award to be printed and published.

22. Commencement and variation of awards

(1) An award must specify the date on which it is to come into force.

(2) Unless the Commission is satisfied that there are exceptional circumstances, it may not specify a date earlier than the date of the award.

(3) An award may only be varied during its currency if a variation is necessary to remove an ambiguity or uncertainty.

23. Application of awards

The Commission may, with the consent of all employers and employees to whom the award is to apply, apply an award to an industry or a workplace.

24. When an award ends

(1) An award must specify the date on which it expires which must not be more than 5 years after the date on which it came into force.

(2) Awards cease to apply on their expiry.

(3) If an award expires, each employee who continues to be employed by the employer and the employer are, unless a new award is made or the employee and the employer make an employment agreement, bound by an individual employment agreement with the same terms and conditions as those that applied to the employee and the employer under the expired award.

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25. Contents of awards

(1) Awards must contain provisions—

(a) that set out procedures to be followed to prevent or settle claims, disputes or grievances that arise during the currency of the award;

(b) for the standing-down of employees who cannot be usefully employed because of any strike, breakdown of machinery or any stoppage of work for any cause for which the employer cannot reasonably be held responsible.

(2) The standing down of an employee under a provision described in sub-section (1) (b) does not break the continuity of employment of the employee for the purpose of any entitlements.

(3) An award made after the commencement of this sub-section must not contain a provision which limits the working of ordinary hours to specified days of the week or provides for additional payments for ordinary hours worked on specified days of the week. An award made after that commencement may, however, limit the working of ordinary hours to an average of five days per week over the period of a roster cycle or require additional payments for work performed on public holidays.

(4) The minimum terms and conditions of employment that may be included in an award are those contained in Schedule 1.

(5) A provision of an award is of no effect to the extent that it provides a term or condition of employment that is less favourable to an employee than the minimum applicable under sub-section (4).

26. No automatic flow on of terms of employment agreements

The Commission may only include in an award provisions based on those of an employment agreement if it is satisfied that the inclusion—

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(a) is consistent with any general principles established by the Commission in Full Session; and

(b) is not contrary to the public interest.

27. Award has no effect if inconsistent with this Act

(1) If anything in an award is inconsistent with anything in this Act, or in any regulation or rule made under this Act, the part of the award that is inconsistent is of no effect.

(2) If the inconsistency arises at any time after the making of the award, the part of the award that is inconsistent only ceases to have effect when the inconsistency arose.

28. Copy of award to be made available to employees An employer who employs a person to whom an award applies must keep a copy of the award and make it available for inspection by that person on demand.


29. If meaning of award not clear (1) The Commission may declare the meaning or effect of

any award, or of any provision of an award, on an application made by a person or body bound by the award.

(2) A declaration is binding on all persons and bodies bound by the award.

30. Award rate applies to award work

If a person— (a) does work which is covered by an award for an

employer for more than half the ordinary working hours of a day; and

(6) does other work which is not covered by an award for that employer on that day—

the employer must pay the person for work done under an award on that day at a rate not less than the rate fixed by the award.


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31. Award rates do not apply to spouse etc. of employer

An employer who employs his or her spouse, de facto spouse, son or daughter in his or her business need not pay the spouse, son or daughter the rate of pay fixed by any relevant award.

32. Awards do not apply to people in sheltered workshops etc.

(1) In this section—

"institution" means an institution conducted for religious or charitable purposes;

"person with a disability" means a person who is unable to obtain a job in industry in open competition owing to a mental or physical disability;

"sheltered workshop" means a workshop or similar premises which is conducted to enable people with disabilities to work for their own benefit, whether or not the workshop or premises is run for profit.

(2) An employer who employs—

(a) a person who is confined to an institution to do work in the institution; or

(b) a person with a disability to do work in a sheltered workshop—

need not comply with any relevant award with respect to the employment.

(3) The occupier of any place where work is done which is similar to that done by people working in an institution or sheltered workshop may apply to the Commission for an order under sub-section (4).

(4) If the Commission is satisfied that an institution or sheltered workshop is unfairly competing with an occupier who has applied for an order, the Commission may order that sub-section (2) is not to apply to an

1455


employer in respect of a person, or a group or a class of people, employed at the institution or sheltered workshop.

(5) An order—

(a) is to take effect on a day fixed by the Commission in the order; and

(b) may specify which award the employer must comply with; and

(c) lasts until it is revoked by the Commission.

(6) A person may apply to the Commission to have an order revoked.

(7) The Commission may revoke an order if it is satisfied— (a) that there has been a change in circumstance since

the order was made; and (b) that the revocation will not be contrary to the

public interest.

33. Exemption from awards for slow or infirm workers

(1) An employer need not pay a person holding a certificate of exemption under this section the rate of pay fixed by any relevant award.

(2) The Chief Commission Administration Officer may give a person a certificate of exemption if he or she is satisfied that because of the person's age, infirmity or slowness, the person is unable to obtain work at the rate of pay fixed by any relevant award.

(3) The Chief Commission Administration Officer must specify a minimum rate of pay in a certificate of exemption.

(4) A certificate of exemption is valid for 12 months.

(5) The Chief Commission Administration Officer may renew a certificate of exemption from time to time for a further 12 months.

(6) If the Chief Commission Administration Officer refuses to grant or renew a certificate of exemption

1456


under this section, the person seeking the certificate may appeal to the Industrial Division of the Magistrates' Court.

(7) An employer must not—

(a) directly or indirectly pay, or offer to pay, a person holding a certificate of exemption at a lower rate than the minimum rate specified in the certificate of exemption; or

(b) employ, without the written consent of the Chief Commission Administration Officer, more than one person holding a certificate of exemption under this section or section 15 unless the number of people holding such certificates employed does not exceed one-fifth of the total number of people employed by that employer.


34. Awards do not apply to certain students

(1) An employer need not pay a student holding a certificate of exemption under this section the rate of pay fixed by any relevant award.

(2) The Chief Commission Administration Officer may give a student a certificate of exemption if he or she is satisfied that the student—

(a) is undertaking a full day course in a post-secondary educational institution; and

(b) is required to work during those studies for the purpose of gaining knowledge and skill which relates to those studies.

(3) The Chief Commission Administration Officer may impose conditions on a certificate of exemption.

(4) The student and any employer must comply with any conditions imposed.


922805—17 1457

Employee Relations Act 1992 s.35 Act No. 83/1992

35. Award conditions apply to all people under 18 who do award work

A person who secures the services of a person who is under the age of 18 years to do any work to which an award applies must ensure that the person receives the relevant pay and conditions set out in the award with respect to the work.


PART 4—INDUSTRIAL ACTION

36. Participation in industrial action (1) Participation in industrial action is unlawful if any of

the following apply to it: (a) It occurs while a relevant award or collective

employment agreement is in force; or

(Z?) It relates to a claim, dispute or grievance for the settlement of which there is a procedure set out in a relevant award or employment agreement which has not been followed or it relates to a claim, dispute or grievance which is capable of being, but has not been made, the subject-matter of a complaint under the Equal Opportunity Act 1984; or

(c) It relates to any of the matters dealt with in Division 5 of Part 5 (Freedom of Association); or

(d) It is concerned with the issue of whether any of the contents of a collective employment agreement should be adopted by another employer; or

(e) It occurs in an industry that provides an essential service as defined in the Essential Services Act 1958 or that is a vital industry as defined in the Vital State Industries (Works and Services) Act 1992; or

(/) It takes place or continues in contravention of a recommendation or order of the Commission; or

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(g) It takes place without a secret ballot having been conducted in accordance with Schedule 2 or is not authorised by any ballot that has been conducted; or

(h) It is engaged in for the purpose of causing loss or damage to the business of an employer other than the employer of the employees engaged in the action.

(2) A person must not participate in unlawful industrial action.

Penalty: In the case of an individual—10 penalty units. In any other case—500 penalty units.

(3) Participation in industrial action by employees to whom a federal award applies is not unlawful under sub-section (1) if it arises out of or is related to a claim, dispute or grievance under, or in connection with, that award.

(4) Participation in industrial action is not unlawful if— (a) it is not unlawful under sub-section (1); and (b) it relates to the negotiation of an award or

collective employment agreement for the participants.

37. Industrial action and picketing—legal remedies and immunity

(1) The Industrial Division of the Magistrates' Court has jurisdiction to hear and determine any cause of action for damages, or any claim for equitable relief, arising out of or related to an unlawful industrial action, irrespective of the amount claimed or the value of the relief sought.


(3) Industrial action that is not unlawful does not give rise to any cause of action founded on the torts of conspiracy, intimidation, inducement of breach of contract or interference by unlawful means with trade,

1459


business or employment. However, this does not prevent a cause of action founded on any of those torts arising out of picketing activities.

(4) Nothing in this section deprives a person of any right that the person has under the Magistrates' Court Act 1989 to appeal to the Supreme Court, on a question of law, from a final order of the Industrial Division of the Magistrates' Court.

(5) Despite anything to the contrary in the Courts (Case Transfer) Act 1991, a proceeding of a kind referred to in sub-section (1) cannot be transferred to another court under that Act.

PART 5—PROVISIONS CONCERNING SPECIFIC INDUSTRIAL MATTERS

Division 1—Harsh, Unjust or Unreasonable Dismissals

38. Right to contest harsh, unjust or unreasonable dismissal

(1) If an employer dismisses, or threatens to dismiss, an employee and the employee believes that the dismissal, or threatened dismissal, is harsh, unjust or unreasonable, the employee may apply for an order under this Division.

(2) A recognised association of employees may also apply for an order on behalf of an employee who is, or a group or class of employees who are, eligible to apply for an order.

39. Which employees can use this Division

(1) An employee may only apply for an order if he or she is engaged in a classification of work which was governed by an award at the commencement of this Division.

(2) However, the employee may not apply for an order if, in respect of the dismissal or threatened dismissal, he or she—

1460


(a) has a right of appeal or review under any contract; or

(b) has a right of appeal or review under the Public Service Act 1974, the Police Regulation Act 1958 or the Teaching Service Act 1981 or any other Act; or

(c) has not been continuously employed by the employer for at least 6 months, whether on a full-time, part-time or casual basis.

(3) Also, an employee who is a trainee within the meaning of the Vocational Education and Training Act 1990 may not apply for an order.

(4) An employee is not prevented from applying for an order only because he or she is a party to an employment agreement.

40. Time in which application to be lodged

An application for an order may be lodged with the Commission at any time before an employee is dismissed up until 10 business days after a dismissal.

41. Procedure concerning applications

(1) An application for an order must be in writing and must be accompanied by a filing fee of $50.00.

(2) An application can only be referred to the Commission if the Chief Commission Administration Officer, after hearing submissions on behalf of the employee and the employer, is satisfied that—

(a) the employee has made out a prima facie case; and

(b) the employee, or a recognised association on behalf of the employee, has tried to resolve the matter directly with the employer or the employer's recognised association.

(3) The President must ensure that the Commission hears an application as soon as possible after its referral to it by the Chief Commission Administration Officer.

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Act No. 83/1992

(4) Nothing in sub-section (1) or (2) applies to an application for an order under section 46 of the Industrial Relations Act 1979 that was lodged before the commencement of this Division.

42. Orders

(1) If the Commission is satisfied that the dismissal, or the threatened dismissal, of an employee is harsh, unjust or unreasonable, the Commission may (as the case requires) order the employer—

(a) to re-employ the employee in his or her former position on terms that are not less favourable to the employee than if the employee had not been dismissed; or

(b) not to dismiss the employee.

(2) If the Commission makes an order for re-employment, it may order the employer to pay the employee an amount not exceeding the amount of pay that the employee would have received if he or she had not been dismissed less any earnings of the employee in the intervening period or any benefit, pension or allowance paid to him or her during that period, as a result of the dismissal, under the Social Security Act 1991 of the Commonwealth.

(3) Despite anything to the contrary in this Act, the powers set out in sub-sections (1) and (2) are the only powers the Commission may exercise with respect to a harsh, unjust or unreasonable dismissal or threatened dismissal.

Division 2—Records

43. Employment records

(1) An employer who employs an employee to whom an award or employment agreement applies must keep records of— (a) the employee's name, classification, the

applicable award or employment agreement and the pay received by the employee;

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(b) the employee's age, if he or she is under 21 years of age;

(c) all deductions made from the employee's pay and the reasons for each deduction;

(d) the employee's daily starting and finishing times;

(e) any leave taken by the employee (whether paid, partly paid or unpaid);

(/) any superannuation contributions made by or on behalf of the employee;

(g) anything else that the employer is required to keep by the regulations.

(2) A record must be kept in the form (if any) set out in the regulations.

(3) The employer must retain a record for 7 years after the last entry in it was made.


44. Offence to falsify records

(1) A person must not make, or make use of, any false or misleading entry in any record required to be kept under this Act if the person knows that the entry is false or misleading.

(2) A person must not make a material deletion from any record required to be kept under this Act.


Division 3—Pay

45. Employer must give employee pay slip

At the time of giving an employee his or her pay, an employer must also give the employee written details of—

(a) the date of payment;

(b) the period covered by the payment;

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Act No. 83/1992

(c) the number of hours or days worked by the employee during that period;

(d) all deductions made from the employee's gross pay;

(e) any superannuation contributions made on the employee's behalf;

(/) the employee's gross pay and the amount actually paid to the employee;

(g) how the amount paid is made up.


46. Employer must give employee employment details

(1) An employer must give an employee a copy of any record kept by the employer in respect of the employee under this Act if the employee asks for the copy.


(2) It is sufficient compliance with this section if the employer allows the employee to inspect and copy the record.

47. Payment of employees

(1) An employer must pay an employee everything that the employee is entitled to.

(2) An employer must pay an employee the amount that the employee is entitled to at least— (a) once in every fortnight if the employee is covered

by an award or employment agreement which does not state how often the employee is to be paid;

(b) once in every month if the employee is not covered by an award or employment agreement.

48. Pay must be paid in cash or other agreed way

An employer must pay an employee— (a) in cash; or

1464


(b) with the written authority of the employee— (i) by cheque, postal order or money order

payable to the employee; or (ii) by deposit into a bank, building society or

credit union account specified in the authority; or

(c) in any other manner required or permitted by the relevant award or employment agreement.


49. Prohibition against payment in kind

(1) An employer must, subject to this Division, pay an employee in full in money.

(2) An employer must not directly or indirectly require or compel an employee to accept goods of any kind or accommodation as payment for any work done by the employee, unless this is authorised or required by the relevant award or employment agreement.

(3) For the purposes of this Act, anything given to an employee contrary to sub-section (2) is to be treated as if it had never been given.


50. Deductions from pay

(1) An employer may deduct from an employee's pay— (a) any amount that the employee authorises, in

writing, the employer to deduct; and (b) any amount that the employer is authorised or

required to deduct by this or any other Act, or by any award or employment agreement.

(2) Any amount deducted must be paid by the employer on the employee's behalf in accordance with the employee's instructions or in accordance with the requirements of this Act, the other Act or the award or employment agreement (as the case may be).


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Act No. 8311992

(3) If the employee withdraws in writing a deduction authority, the employer must stop making the deduction.


(4) Nothing in this section requires an employer to make deductions requested by an employee.

Division 4—Secret Ballots

51. Secret ballots may authorise industrial action

(1) A secret ballot conducted in accordance with Schedule 2 may authorise participation in a particular form of industrial action for a period of up to 5 days from the final date for the return of ballot papers until 28 days after that date.

(2) Schedule 2 sets out a code of practice to be complied with in the conduct of a secret ballot.

52. Offences in relation to ballot

(1) If a person conducting a secret ballot requires an officer or employee of a recognised association to provide a list of the members, or of a section or class of the members, of the association for the purposes of the ballot, the officer or employee must promptly comply with the requirement to the extent that he or she is able to do so.

(2) If a person conducting a secret ballot requires an employer to provide for the purposes of the ballot a list of the parties to a collective employment agreement or to individual employment agreements, or of a section or class of those parties, the employer must promptly comply with the requirement.

(3) In relation to a secret ballot, a person must not, without lawful authority or excuse— (a) impersonate another person for the purpose of

obtaining a ballot paper to which he or she is not entitled;

1466


(b) impersonate another person for the purpose of voting;

(c) destroy, deface, alter, take or interfere with a ballot paper or envelope;

(d) put a ballot paper or other paper into a ballot box or other ballot receptacle;

(e) post a ballot paper;

(/) deliver a ballot paper to a person receiving ballot papers;

(g) record a vote that the person is not entitled to record;

(h) record more than one vote;

(i) forge a ballot paper or envelope, or use a ballot paper or envelope that the person knows is forged;

(j) give someone else a ballot paper; (k) obtain, or have possession of, a ballot paper;

(/) destroy, take, open or interfere with a ballot box or other ballot receptacle;

(m) hinder or obstruct the taking of the ballot; («) use any form of intimidation to prevent a person

from voting at the ballot, or to influence a person's vote;

(o) threaten, suggest, cause or inflict any violence, injury, punishment, damage, loss or disadvantage because of, or to induce—

(i) any vote or failure to vote; or

(ii) any support of, or opposition to, voting in a particular manner;

(p) advise a person entitled to vote not to vote;

(q) ask, require or induce a person to show him or her the person's ballot paper after the person has marked it;

(r) ask, require or induce a person to let him or her see the person's ballot paper in such a way that he or she can see how the person is marking, or has marked, the ballot paper.

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(4) A person who is assisting in the conduct of a secret ballot must not, except in the performance of his or her duties—

(a) show a ballot paper being used in the ballot to another person; or

(b) let another person have access to a ballot paper being used in the ballot.


Division 5—Freedom of Association

53. Objects

The objects of this Division are to establish that— (a) all persons (including employees, employers and

sub-contractors) have the freedom to choose whether or not to associate with other persons for the purposes of advancing their employment interests;

(b) no person may, in relation to employment issues or the provision of services, apply any undue influence, directly or indirectly, on any other person by reason of that other person's association, or lack of association, with other persons.

54. Voluntary membership (1) A person must not, in relation to any contract of

employment or contract for services, treat another person less favourably or more favourably according to whether or not the person is, or will become or cease to be, a member of an association of employees or employers.

Penalty: In the case of an individual—10 penalty units; In any other case—100 penalty units.

(2) Anything in an employment agreement or in any other arrangement between persons that requires a person— (a) to become or remain a member of any association

of employees or employers; or

s. 53

1468


(b) to cease to be a member of an association of employees or employers; or

(c) not to become a member of an association of employees or employers; or

(d) to treat another person less favourably or more favourably according to whether or not that other person is, or will become or cease to be, a member of an association of employees or employers—

is of no effect.

55. Prohibition on preference and discrimination

(1) Nothing in any employment agreement or in any other arrangement between persons confers on any person by reason of that person's membership or non-membership of an association of employees or employers any right to preferential employment or to be given preference in any aspect of employment.

(2) An association of employees or any other person must not intimidate, prejudice, or threaten to prejudice, or attempt to induce another person to prejudice, a person who performs work for an employer on the grounds— (a) that the person is or is intending to become a

member of an association of employees; or (b) that the person is not, or is intending to not

remain, a member of an association of employees.

(3) An association of employees or any other person must not intimidate or induce, whether by threats or promises or otherwise, an employer to prejudice a person who performs or wishes to perform work for the employer on a ground referred to in sub-section (2).

(4) For the purposes of this section a person is prejudiced if— (a) he or she is dismissed from employment; or (b) he or she is demoted or fails to get a promotion

that he or she could have reasonably expected; or (c) his or her employment position is detrimentally

altered; or

1469


(d) his or her pay or other terms and conditions of employment are detrimentally altered.

(5) If an officer or employee of an association of employees or employers is guilty of an offence against this section, the association concerned is also guilty of that offence and liable to the penalty for that offence.

Penalty: In the case of an individual—10 penalty units; In any other case—100 penalty units.

Division 6—Long Service Leave

56. Basic entitlement to long service leave

An employee is entitled to—

(a) 13 weeks of long service leave on ordinary pay on completing 15 years of continuous employment with one employer; and

(b) 4 1/3 weeks of long service leave on ordinary pay on completing each period of 5 years of continuous employment with that employer after the first 15 years of continuous employment with that employer.

57. Additional entitlement to long service leave if employment stops after 15 years

(1) This section only applies if an employee stops working for an employer after completing 15 years of continuous employment with that employer.

(2) The employee is entitled to an amount of long service leave equal to l/60th of the period of his or her continuous employment with that employer since he or she last became entitled to long service leave under section 56.

(3) The period of an employee's long service leave that relates to a period of employment before 1 January 1965 and that had not been taken before the

1470


commencement of this Division is to be reduced by one quarter.

58. Entitlement to long service leave if employment stops after 10 years

(1) This section only applies if an employee's employment is ended for any reason other than dismissal for serious and wilful misconduct and the employee has completed at least 10, but less than 15, years of continuous employment with one employer.

(2) The employee is entitled to an amount of long service leave equal to l/60th of the period of his or her continuous employment.

59. Definition of "employer" and "employee"

In this Division—

"employee" means a person employed by an employer to do any work for hire or reward, and includes an apprentice and any person whose contract of employment requires him or her to learn or to be taught any occupation;

"employer" includes, in relation to a transfer referred . to in section 60, a person who was not an

employer at the time of the transfer.

60. Meaning of "one employer"

(1) This section sets out several situations in which an employee is to be regarded, for the purposes of this Division, as having been employed by the one employer, even though the employee may have worked over the relevant period of time for more than one employer in a strict legal sense.

(2) If an employee is employed by a corporation, he or she is to be regarded as having been employed by that corporation during any period that—

1471


Act No. 8311992

(a) he or she was employed by a related corporation of that corporation (within the meaning of the Corporations Law); or

(b) he or she was employed by another corporation and— (i) the directors of that other corporation and the

employee's present employer were substantially the same; or

(ii) that other corporation and the employee's present employer were under substantially the same management.

(3) If the ownership of a business employing someone changes but the employment of the employee continues, the employee is to be regarded as having started employment with the new owner on the date on which the employee started his or her employment at that business.

(4) Sub-section (3) applies regardless of whether the change occurred before or after the commencement of this Division.

(5) If an employee was dismissed from employment by the owner of a business, but the ownership of the business changes and the new owner employs the employee within 3 months after the dismissal, the employee is to be regarded as—

(a) having finished employment with the former owner on the day before the ownership of the business changed; and

(b) having started employment with the new owner on the day the ownership changed; and

(c) having been employed by the new owner from the date on which the employee first started employment at that business.

(6) If an employee performs duties in connection with any assets used in the carrying on of a business of his or her employer and those assets are transferred to another employer who continues the employment of the employee, the employee is to be regarded as having

1472


started employment with the new owner on the date on which the employee started his or her employment at that business.

(7) Sub-section (8) only applies if an employee performs duties in connection with any assets used in the carrying on of a business of an employer and—

(a) the employee is dismissed by that employer; and

(b) those assets are transferred to another employer; and

(c) the other employer employs the employee within 3 months after the date of the dismissal to perform duties in relation to those assets, or other assets of a similar kind.

(8) If this sub-section applies, the employee is to be regarded as—

(a) having finished employment with his or her former employer on the day before the assets were transferred; and

(b) having started employment with the new employer on the day the assets were transferred; and

(c) having been employed by the new employer from the date on which the employee first started employment at that business.

(9) Sub-sections (5), (6) and (8) do not apply if the transfer or change of ownership occurred before 11 October 1984.

(10) In this section—

"assets" includes land, plant and equipment;

"business" includes a trade, process or occupation and any part of a trade, process or occupation and also includes any part of a business;

"transfer" includes a transmission, conveyance, assignment or succession, whether by agreement or by operation of law.

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Act No. 8311992

61. Employer may apply to reverse the effect of section 60 (5) and (8)

(1) A new owner or employer referred to in section 60 (5) and (8) may apply to the Commission for a declaration that one or other of those sections does not apply to the employment of an employee or of a class of employee.

(2) The Commission may make such a declaration if the employer satisfies it that the employment of the employee, or the class of employee, was not related to the change of ownership or transfer of assets (as the case may be).

(3) Section 60 (5) or (8) does not apply to the employment of an employee, or of a class of employee, in respect of whom such a declaration is made.

62. Meaning of "continuous employment"

(1) This section sets out several situations in which an employee is to be regarded, for the purposes of this Division, as having been continuously employed even though in a strict legal sense it could be said that the employee's employment was interrupted.

(2) An employee's employment is to be regarded as being continuous despite— (a) the taking of a'ny annual leave or long service

leave; (b) any absence from work on account of illness or

injury; (c) the taking of any other leave granted by his or her

employer; (d) any interruption or ending of the employment by

the employer if the interruption or ending is made with the intention of avoiding obligations in respect of long service leave or annual leave;

(e) in the case of an employee performing duties in relation to assets of a particular kind, any absence from work arising solely because of a transfer to which section 60 (6) applies of those assets from one employer to another employer;

1474


(/) any interruption arising directly or indirectly from an industrial dispute;

(g) the dismissal of the employee, but only if he or she is re-employed within a period not exceeding 3 months after his or her dismissal;

(h) the standing-down of the employee on account of slackness of trade;

(i) if the employee is a woman, any absence from work in respect of her pregnancy for a period not exceeding 12 months or any longer period that may be specified in the relevant award or employment agreement;

(/) any other absence approved by his or her employer either before or after it occurs.

(3) If the employment of an employee who was apprenticed to an employer is continued by the employer within 12 months after the completion of the apprenticeship, the period of the apprenticeship is to be counted as part of the continuous employment of the employee with that employer.

(4) Sub-section (3) applies regardless of whether the continuation occurred before or after the commencement of this Division.

(5) For the purposes of this Division, the continuous employment by an employer of an employee who is employed by the employer at the commencement of this Division is to be regarded as starting at the actual day (before the commencement of this Division) of that employment.

63. Whether interruptions are to be included in the period of employment

(1) The absences from work referred to in section 62 (2) (a), (d) and (e) are to be counted as part of the period of an employee's employment.

(2) Any absence from work of not more than 48 weeks in any year on account of illness or injury is to be counted as part of the period of an employee's employment, but

1475


Act No. 83/1992

any absence for that reason in excess of that period is not to be counted.

(3) Any period of leave referred in section 62 (2) (c) (other than maternity leave) is to be counted as part of the period of an employee's employment unless, on it being granted, it was agreed in writing between the employee and the employer (at the request of the employee) that it is not to be counted.

(4) The absences from work referred to in section 62 (2) (/), (g), (h), (i) and (/') are not to be counted as part of the period of an employee's employment.

(5) In computing long service leave under this Division, any long service leave (or payment in lieu of long service leave) granted to an employee in respect of any period of employment which is under this section, or under section 61 or 62, to be taken into account in computing the employee's entitlement to long service leave under this Division is to be taken into account and regarded as having been leave taken under this Division.

64. Meaning of "ordinary pay "

(1) For the purposes of this Division, "ordinary pay" means the pay an employee is entitled to receive at the time he or she takes long service leave for working his or her normal weekly hours at his or her ordinary time rate of pay.

(2) Ordinary pay includes the cash value of any board or lodging that the employee receives from his or her employer.

(3) If no ordinary time rate of pay is fixed for an employee's work under the relevant award or employment agreement, the employee's ordinary time rate of pay is to be taken to be the average weekly rate earned by him or her in the 12 months immediately before he or she takes long service leave.

(4) If no normal weekly number of hours of work is fixed for an employee under the relevant award or

1476


employment agreement, the employee's normal weekly number of hours is to be taken to be the average weekly number of hours worked by him or her in the 12 months immediately before he or she takes long service leave.

(5) If an employee defers the taking of his or her long service leave under a written agreement with his or her employer made at the request of the employee, the ordinary time rate of pay that is to be used in calculating the employee's ordinary pay for the time he or she is on leave is to be the rate agreed on in the agreement.

(6) The rate agreed on in such an agreement must not be less than the rate to which the employee is entitled on the date the entitlement to the leave arises and any provision to the contrary in an agreement is of no effect.

65. Employees to whom this Division does not apply

(1) This Division does not apply to any employee who— (a) is entitled to long service leave under any Act

other than this Act; or (b) is in a class of employees who are entitled to long

service leave under an award or employment agreement (regardless of whether it was made before or after the commencement of this Division) on a basis that, in the opinion of the Commission, is more favourable than that provided by this Division; or

(c) is employed by an employer who is exempted under this section from complying with this Division in respect of him or her.

(2) An employer may apply to the Commission to be exempted from complying with this Division in respect of all or any, or any class of, employees.

(3) The Commission may grant such an application if it is satisfied— (a) that the employees in respect of whom the

application is made are entitled under their terms

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Act No. 83/1992

and conditions of employment, on a basis no less favourable than that prescribed by this Division—

(i) to long service leave;

(ii) (whether or not solely at the cost to the employer, but at a cost to the employer that is no less than the cost involved in providing long service leave under this Division) to superannuation benefits or to superannuation benefits and long service leave; and

(b) that the entitlement better serves the interests of the employees than the entitlement provided by this Division.

(4) The Commission may grant the application subject to conditions and may at any time impose conditions or further conditions on the grant.

(5) The Commission may revoke an exemption at any time.

66. When leave is to be taken

(1) An employer must allow an employee to take long service leave as soon as practicable after the employee becomes entitled to the leave having regard to the needs of the employer's business.


(2) An employer and an employee may agree to postpone the taking of long service leave by the employee.

(3) If an employer and an employee cannot agree to the postponing of an employee's leave, one or other of them may apply to the Commission for an order concerning the postponement.

(4) The Commission may make an order concerning the postponement of an employee's long service leave after it has had regard to the problems involved, but it cannot order that the leave start within 6 months after the date of the order.

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(5) An entitlement to long service leave remains, regardless of any postponement of the leave, and regardless of any failure or refusal of an employer to grant the leave.

67. Leave period may be split

(1) Long service leave must be taken in one period.

(2) However, if an employer and an employee agree, an employee— (a) may take the first 13 weeks of long service leave

to which he or she is entitled in 2 or 3 separate periods; and

(b) may take any further long service leave to which he or she becomes entitled in 2 separate periods.

68. Payment while on leave

(1) An employer must give an employee the pay to which the employee is entitled in respect of long service leave in one of the following ways— (a) in full when the employee starts his or her leave;

or (b) at the same time as the employee would receive

the pay if the employee were still at work; or (c) in any other way agreed between the employee

and the employer.

(2) If the method set out in sub-section (1) (b) is used, the employer must send each payment by cheque to a specified address, if asked to do so by the employee in writing.


69. Pay increases while on leave

(1) If the ordinary pay of an employee who is on long service leave increases while the employee is taking the leave, he or she is entitled to be paid the increased rate from the time of the increase.

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(2) If the employee was paid in full at the start of the leave or was paid in advance with respect to any period of leave, the employer must pay the additional amount resulting from the increase as soon as the employee returns to work.


70. Whether holidays occurring during leave count

Long service leave includes any public holiday that occurs during the period when the leave is taken, but does not include any annual leave occurring during that period.

71. Leave in advance

(1) An employer may grant an employee long service leave before the employee becomes entitled to that leave.

(2) If an employer does this and the employee takes the leave, the employee is not entitled to any further long service leave or payment in lieu of long service leave for the period of employment in respect of which the leave in advance was granted.

(3) If the employment of an employee who has taken leave in advance ends, the employer may deduct from any payment payable to the employee as a result of the ending of his or her employment an amount equal to the amount paid to the employee for the leave (if any) in respect of which the employee will not become entitled.

72. What is to happen if employment ends before leave taken

(1) If the employment of an employee ends before he or she has taken all the long service leave to which he or she is entitled, the employee is to be regarded as having started to take his or her leave on the day the employment ended.

(2) On that day the employee's employer must pay the employee the full amount of the employee's long service leave entitlement as at that day.


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(3) An employee's long service leave entitlement under this section includes any entitlement that accrued as a result of the ending of the employee's employment.

73. What is to happen if the employee dies before leave is taken

(1) If an employee dies before taking all the long service leave to which he or she is entitled, the employee's employer must pay to the employee's personal representative the full amount of the long service leave entitlement still owed to the employee (if any).


(2) An employee's long service leave entitlement under this section includes any entitlement that accrued as a result of the employee's death ending the employee's employment.

(3) For the purposes of calculating the amount to be paid under this section—

(a) the ordinary pay of the employee is the amount the employee was entitled to receive as at the time of his or her death for working his or her normal weekly hours at his or her ordinary rate of pay;

(b) any average that needs to be taken for the purposes of section 64 is to be taken over the 12 months immediately before the employee's death.

74. Payments in lieu forbidden

(1) An employer must not give an employee a payment in lieu of long service leave, or in lieu of any part of long service leave, except as permitted by this Division.

(2) An employee must not accept any payment in lieu of long service leave, or in lieu of any part of long service leave, except as permitted by this Division.


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75. Settlement of disputes concerning leave

(1) The Industrial Division of the Magistrates' Court has jurisdiction to hear any dispute as to—

(a) whether or when an employee or an employee's personal representative is or has become entitled to long service leave or a payment in lieu of long service leave; or

(b) the rate of ordinary pay of an employee for the purposes of this Division.

(2) An employee or a personal representative of an employee may apply to the Industrial Division of the Magistrates' Court for an order directing an employer to pay to the employee or the representative any amount that has become due to the employee or the representative under this Division within the 5 years immediately before the day on which the application is made.

(3) The Court may make such an order and may award costs to any party to the application and assess the amount of those costs.

76. Decision of Commission final

Any decision of the Commission under this Division is final and without appeal.

77. Procedure of the Commission

(1) The Governor in Council may make rules as to the procedure of the Commission concerning any matter arising under this Division.

(2) Subject to any such rules, the Commission may regulate its own procedure in any matter arising under this Division.

78. Offences concerning leave

(1) An employee must not work for hire or reward while he or she is taking long service leave.

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(2) A person must not knowingly employ another person for hire or reward while that other person is taking long service leave.


79. Contracting out prohibited

(1) Unless expressly allowed by this Division, any provision in any award or employment agreement that annuls, varies or excludes any provision of this Division is of no effect, regardless of when the award or agreement was made.

(2) This section does not affect any provision of an award or employment agreement that confers greater rights on an employee than those conferred by this Division.

80. Records

(1) An employer must keep long service leave records in the form approved by the Chief Commission Administration Officer and containing the details required by the Commission.


(2) An employer must retain a long service leave record for at least 7 years after the employee to whom the record relates dies or stops working for the employer.


(3) A person must not make any false or misleading statement in, or any material omission from, a long service leave record made under this section.


(4) It is a defence to a charge under sub-section (3) if the person charged proves to the satisfaction of the Court that the statement or omission complained of resulted from a genuine error.

(5) Despite anything to the contrary in this or in any other Act, a charge under this section may be filed at any time within 5 years after the commission of the alleged offence.

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81. Money due to employee to be treated as arrears of pay

Any amount owed under this Division by an employer to an employee or his or her personal representative is to be regarded for the purposes of this Act as arrears of pay.

PART 6—THE FRAMEWORK OF THE SYSTEM

82. The Employee Relations Commission

(1) There is established a Commission called the Employee Relations Commission of Victoria.

(2) The Commission is to consist of— (a) a President; and

(b) Deputy Presidents; and (c) Commissioners—

appointed by the Governor in Council.

(3) Schedule 3 sets out the qualifications which members of the Commission must have and conditions of their employment.

83. Functions of the Commission

The functions of the Commission are— (a) to facilitate the prompt settlement of industrial

matters and disputes in a fair manner by agreement, mediation, conciliation and arbitration with the minimum of legal form and technicality; and

(b) to facilitate the prevention of industrial disputes; and

(c) to do anything else that it is required to do under this, or any other, Act.

84. Forms in which the Commission may sit

The Commission must sit in one of the following forms when dealing with a matter—

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(a) as the Commission in Full Session; or

(b) as a single member of the Commission.

85. Form of Commission in Full Session

(1) The Commission in Full Session is to consist of 3 or more members of the Commission chosen by the President. One of those members must be the President or a Deputy President.

(2) The presiding member of the Commission in Full Session is to be—

(a) the President; or

(b) if the President is not present, the most senior Deputy President present.

86. Panels

(1) The President may divide the members of the Commission into panels, and may assign an industry to a panel.

(2) A panel of the Commission is to consist of—

(a) the President or a Deputy President; and

(b) at least one Commissioner.

(3) A member of the Commission may be a member of more than one panel.

(4) The Presidential member of a panel must, in consultation with the other members of the panel, organise and allocate the work of the panel.

(5) At any time, the President may—

(a) create new panels and abolish existing panels;

(b) assign or remove members of the Commission to or from panels;

(c) assign or remove an industry to or from a panel;

(d) direct what work a panel is to do.

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87. Appointment under disputes procedures

The parties to an award or employment agreement may appoint the Commission or another person or body to resolve disputes or grievances by conciliation, mediation or arbitration.

88. Commission Administration Office

(1) There is established a Commission Administration Office.

(2) The Commission Administration Office is to consist of—

(a) a Chief Commission Administration Officer appointed by the Governor in Council; and

(b) as many other officers as are necessary to enable the Office to do its work.

(3) All the staff of the Commission Administration Office (other than the Chief Commission Administration Officer) are to be appointed under the Public Service Act 1974.

(4) Schedule 4 sets out conditions of employment of the Chief Commission Administration Officer.

89. Functions of the Commission Administration Office

The functions of the Commission Administration Office are—

(a) to act as the registry for, and to provide administrative support to, the Commission; and

(b) to keep a register of recognised associations and any other required records; and

(c) to investigate the role, performance and functions of any association of employees or employers and make recommendations concerning its rights and obligations under this Act; and

(d) to provide help to recognised associations and individuals concerning their rights and obligations under this Act; and

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(e) to maintain an up-to-date copy of any award made by the Commission and to make it available for inspection by persons affected by it; and

(/) to keep a register of collective employment agreements lodged under Part 2; and

(g) to do anything else that it is required to do under this Act.

PART 7—COMMENCEMENT OF PROCEEDINGS

90. Who can apply to bring a matter or dispute before the Commission?

An application to bring an industrial matter or dispute before the Commission can be made—

(a) in the case of an award, or anything concerning, or arising from or dealt with by, an award—by an employee or a group of employees or by an association recognised with respect to the award or by an employer bound by it; or

(b) in the case of an industrial dispute—by an employer or an employee or by a group of employees or a recognised association involved in the dispute; or

(c) by the Minister—in the circumstances set out in section 113; or

(d) by an employee or a recognised association—in the circumstances set out in Division 1 of Part 5.

91. Application for award if there is no award

Despite section 90, in a case where no award applies to a particular industry, area or workplace, an application for an award with respect to that industry, area or workplace may be made to the Commission by any association, employee, group of employees, employer or group of employers.

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92. Proceedings before the Commission

(1) Any person or body wishing to bring an industrial matter or dispute before the Commission must do so in accordance with this Part and any rules and regulations made under this Part.

(2) The Commission must not convene any proceedings with respect to an industrial matter or dispute (other than proceedings on an application under Division 1 of Part 5) unless all parties to the matter or dispute—

(a) consent to the Commission exercising powers under this Act; and

(b) undertake not to engage in any industrial action over the matters in dispute; and

(c) agree to accept the outcome of the proceedings.

93. President to decide how matter or dispute to be dealt with

The President may refer an industrial matter or dispute to— (a) the Commission in Full Session; or (6) a single member of the Commission; or (c) a member of the Federal Commission.

94. Chief Commission Administration Officer must inform parties to dispute of proceedings

The Chief Commission Administration Officer must inform all parties to an industrial matter or dispute who the Chief Commission Administration Officer knows are parties to it, of the time and place of the first proceedings of the Commission relating to the matter or dispute.

95. Rules

The Commission may make rules for or with respect to— (a) how industrial matters or disputes are to be

brought before the Commission;

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(b) the means by which the Commission may be satisfied that any necessary consent to it exercising a power has been given;

(c) the time within which applications, submissions and objections concerning industrial matters or disputes are to be made;

(d) how those applications and submissions are to be dealt with;

(e) the practices and procedures to be followed by the Commission;

(/) the form and manner in which, and the parties to whom, the Chief Commission Administration Officer is to give notice of a proceeding.

96. Regulations

The Governor in Council may make regulations for, or with respect to, anything listed in section 95 for which no rule exists.

97. Conflict between rules and regulations

If there is a conflict between a regulation and a rule, the regulation prevails, regardless of when the rule was made.

PART 8—POWERS OF THE COMMISSION

98. General powers of the Commission in industrial matters or disputes

(1) Subject to this Act, the Commission may do one or more of the following with respect to an industrial matter or dispute—

(a) attempt to settle the matter or dispute informally;

(b) mediate between the parties to the dispute;

(c) attempt to conciliate the matter or dispute;

(d) arbitrate the matter or dispute;

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(e) make an award in relation to all or any part of the matter or dispute;

(/) vary or revoke an award.

(2) However, the Commission may not—

(a) exercise any powers in relation to an industrial matter or dispute unless all parties to the matter or dispute consent to the exercise of those powers; or

(b) determine any industrial matter or dispute relating to the preferential employment of, or the giving of preference in any aspect of employment to, people who are, or who are not, members of an association of employers or employees; or

(c) make an award unless the scope of the award is confined to an industry and the award applies to a majority of the employees of each employer who is to be bound by the award; or

(d) make an award in relation to long service leave with pay.

99. Certain matters only to be dealt with by Commission in Full Session

(1) Only the Commission in Full Session may make, vary or revoke an award in relation to—

(a) the standard hours of work in an industry; (b) rates of pay, or the manner in which rates of pay

are to be ascertained, if the making, varying or revoking of the award is predominantly to be based on grounds related to the Victorian economy and not on an examination of any of the circumstances of the work on which, or the industry in which, people are employed;

(c) annual leave with pay.

(2) However, a single member of the Commission may make, vary or revoke such an award if the award—

(a) gives effect to determinations of the Commission in Full Session; or

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(b) is consistent with principles determined by the Commission in Full Session.

(3) If there is any doubt as to whether this section applies to the making, varying or revoking of an award, the matter is to be referred to the Commission in Full Session for its opinion.

(4) The decision of the Commission in Full Session is final and without appeal.

100. Other general powers of the Commission

(1) In addition to the other powers given to the Commission by this Act or by any other Act, the Commission may—

(a) enter a place where people are employed under an award at any time that people are working there;

(£>) inspect the place, and any records at the place, and interview any person at the place;

(c) do anything that is necessary or expedient to enable it to perform its functions.

(2) For the purposes of performing its functions and duties, the Commission has the powers conferred by sections 14, 15 and 16 of the Evidence Act 1958 on a board appointed by the Governor in Council.

101. Commission in Full Session may direct an investigation

The Commission in Full Session may direct—

(a) a Deputy President; or

(b) a Commissioner; or

(c) the Chief Commission Administration Officer—-

to make any investigation it considers appropriate and to report the results of the investigation back to it.

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PART 9—POWERS AND DUTIES OF THE PRESIDENT, THE CHIEF COMMISSION ADMINISTRATION OFFICER AND

THE MINISTER

Division 1—The President

102. Commission business

The President is to direct the business of the Commission.

103. General powers

In addition to the powers given to the President by this Act or by any other Act, the President may—

(a) delegate to a Deputy President in writing any of the President's powers or duties;

(b) direct what work a member of the Commission is to do, or not to do;

(c) direct any member of the Commission or the Chief Commission Administration Officer to make any investigation the President considers appropriate and to report the results of the investigation back to the President;

(d) do anything that is necessary or expedient to enable him or her to perform his or her functions under this Act.

104. Annual report

(1) The President must give the Minister a report on the operation of this Act once each year.

(2) The President must ensure that the annual report of the Chief Commission Administration Officer under section 109 is incorporated into his or her report.

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Division 2—The Chief Commission Administration Officer

105. Commission Administration Office business

(1) The Chief Commission Administration Officer is to direct the business of the Commission Administration Office.

(2) In doing this, the Chief Commission Administration Officer must give priority to the needs of the Commission.

106. General powers

In addition to the other powers given to the Chief Commission Administration Officer by this Act or by any other Act, the Chief Commission Administration Officer may— (a) do anything that is necessary or expedient to

enable him or her to carry out his or her duties under this Act;

(b) delegate (subject to the approval of the President) any of his or her powers or duties to an officer employed in the Commission Administration Office;

(c) investigate the role, performance and functions of any association of employees or employers if requested to do so by the Minister.

107. General duty

The Chief Commission Administration Officer must ensure that the Commission Administration Office performs its functions.

108. Chief Commission Administration Officer is subject to the directions of the President

The Chief Commission Administration Officer is responsible to the President for the administration of the Commission and must comply with any direction given by the President in carrying out his or her duties.

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109. Annual report

The Chief Commission Administration Officer must give the President a report on the operations of the Commission Administration Office once each year.

110. Acting Chief Commission Administration Officer

(1) The Governor in Council may appoint an officer employed in the Commission Administration Office or any other person to act as Chief Commission Administration Officer during any period when—

(a) the office of Chief Commission Administration Officer is vacant; or

(b) the Chief Commission Administration Officer is absent from duty or is, for any reason, unable to carry out the duties of the office.

(2) A person acting as Chief Commission Administration Officer has and may exercise all the powers, and must carry out all the duties, of the Chief Commission Administration Officer.

Division 3—The Minister

111. Power to intervene in any proceedings

(1) The Minister may, on behalf of the State of Victoria, intervene in any proceedings before the Commission if the Minister believes that it is in the public interest to do so or if the proceedings involve anyone employed by a public body.

(2) Before intervening in proceedings before the Commission, the Minister must give the Chief Commission Administration Officer written notice of the intended intervention.

112. Appearance by the Minister in proceedings

(1) The Minister may appear in a proceeding personally or by an agent.

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(2) The Minister's agent may be a barrister and solicitor.

113. Power to refer matters to Commission or Chief Commission Administration Officer

(1) The Minister may refer an industrial matter or dispute to the Commission if the Minister believes that it is in the public interest to do so.

(2) If a matter or dispute which the Minister refers concerns an award and it is likely to affect other awards, the Minister may at any time ask the Commission to determine the matter or dispute for those other awards also.

(3) The Minister may direct the Chief Commission Administration Officer to investigate the role, performance and functions of any association of employees or employers and report back to him or her.

114. Minister must send President's annual report to Parliament

The Minister must cause the President's annual report to be laid before each House of Parliament on or before the seventh sitting day of that House after the Minister receives the report.

PART 10—COMPLEMENTARY INDUSTRIAL RELATIONS SYSTEM

115. Joint proceedings

(1) The President may authorise the Commission to exercise its powers jointly in proceedings with one or more industrial authorities if the President believes that it will further the objects of this Act.

(2) The Commission may exercise its powers in accordance with such an authorisation anywhere in Australia.

(3) The Commission may have regard to any evidence given to an industrial authority in the presence of the

1495


Commission and the parties to the industrial matter or dispute before the Commission that is relevant to the exercise of its powers.

116. President may nominate member to exercise federal powers

The President may nominate a member of the Commission—

(a) to exercise any power conferred on the Commission by or under any Commonwealth Act;

(b) to investigate and deal with any industrial dispute referred to the Commission by the President of the Federal Commission.

117. Reference of industrial matter to Federal Commission

(1) The President may refer to a member of the Federal Commission the whole or any part of an industrial matter or dispute which is within the jurisdiction of the Commission.

(2) Before doing this, the President must ask the President of the Federal Commission to nominate a member of the Federal Commission to whom the reference may be made.

(3) The President may revoke the reference at any time before the member of the Federal Commission settles, or makes an award in respect of, the industrial matter or dispute.

(4) The member of the Federal Commission to whom the reference is given—

(a) may investigate the subject matter of the reference and may settle it or make an award in respect of it (as the case requires); and

(b) for the purposes of paragraph (a), may exercise all of the powers of the Commission; and

(c) must act in accordance with this Act and the rules and regulations.

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(5) A decision or an award made by a member of the Federal Commission under this section is to be taken to be a decision or an award of the Commission.

118. Conference with other industrial authorities

(1) The President may arrange a conference between the Commission and one or more industrial authorities for the purpose of attempting to co-ordinate awards made, or to be made, by the Commission and the industrial authorities.

(2) The President may confer with the Federal Commission in relation to the exercise or proposed exercise of powers under section 115.

PART 11—HOW PROCEEDINGS ARE TO BE CONDUCTED

Division 1—General

119. Commission to act fairly and without regard to technicalities

(1) In every proceeding before the Commission, the Commission must act fairly, and must base its decisions on the substantial merits of the matter before it without regard to legal forms and technicalities.

(2) The Commission—

(a) need not act in a formal manner; and

(b) is not bound by any rules of evidence; and

(c) is bound by the rules of natural justice (except to the extent that this Act permits it to depart from those rules, whether expressly or by implication); and

(d) may inform itself on any matter in any manner that it thinks just.

(3) The Commission may regulate its own proceedings.

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120. Conciliation must be tried before arbitration

(1) If the Commission is satisfied that all the parties to an industrial matter or dispute that is before it are unable to reach a fair and amicable agreement, the Commission may attempt conciliation.

(2) If the Commission is satisfied that it is not likely that conciliation, or further conciliation, will resolve the matter or dispute within a reasonable time, the Commission may offer to determine the matter or dispute by arbitration.

(3) If the parties to the matter or dispute agree, a member of the Commission involved in attempting to conciliate a matter or dispute may arbitrate the matter or dispute.

(4) The Commission may use its conciliation powers even though it has used its arbitration powers in the same matter or dispute.

121. Commission to take certain things into account

In performing its functions, the Commission must take into account—

(a) the objects of this Act; and

(b) the public interest, including the state of the Victorian economy and the likely effects of any award or decision that the Commission is considering or proposing to make, especially the likely effects on the level of employment and on inflation; and

(c) any general principles established by the Commission in Full Session; and

(d) any relevant awards and decisions of the Commission and the Federal Commission; and

(e) any relevant law.

122. Commission to encourage dispute resolution procedures

In dealing with an industrial dispute, the Commission must encourage the parties to the dispute to agree on,

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and commit to complying with, procedures for preventing and settling further disputes between them and any personal grievances that arise by discussion and agreement, with a view to the agreed procedures being included in an award or employment agreement.

123. Commission to have regard to compliance with dispute procedures

(1) This section only applies if the parties to an industrial dispute are bound by an award or employment agreement that has procedures for preventing or settling disputes.

(2) The Commission must not exercise its powers in relation to a dispute unless it is satisfied that the procedures for settling disputes have been followed.

124. Disclosure of interest by members

(1) If any member of the Commission before whom a proceeding is brought has, or acquires, any pecuniary or other interest that could conflict with the proper performance of his or her functions in relation to the proceeding, the member must disclose the interest to the parties to the proceeding.

(2) If the President becomes aware that a member of the Commission has such an interest and has not disclosed that interest to the parties to a proceeding, the President—

(a) must cause the interest of the member to be disclosed to the parties to the proceeding; and

(b) may direct the member to take no further part in the proceeding.

(3) A member of the Commission who has such an interest must not take any further part in a proceeding or further exercise any powers in relation to the proceeding after the interest is disclosed unless the parties to the proceeding consent to him or her doing so.

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(4) A member of the Commission must comply with any direction given to the member under sub-section (2) (b).

125. Transfer of proceedings to Commission in Full Session

(1) At any time before or during a proceeding before a single member of the Commission—

(a) the single member; or (b) any party to the proceeding—

may apply to the President for an order transferring the proceeding to the Commission in Full Session for hearing and determination.

(2) If such an application is made during a proceeding, the proceeding is suspended until the President makes a decision on the application.

(3) At any time before or during a proceeding before a single member of the Commission, the President may on his or her own motion order that the proceeding be transferred to the Commission in Full Session for hearing and determination.

126. Proceedings to be public unless it is directed otherwise

All proceedings before the Commission are to be open to the public, unless the member presiding directs otherwise.

127. Submissions to the Commission

(1) Submissions concerning any proceeding before the Commission may be made by—

(a) a representative of any person involved in a dispute or bound or proposed to be bound by an award relevant to the proceeding; and

(b) an employer bound or proposed to be bound by an award relevant to the proceeding; and

(c) any other person or body (including the Minister) who satisfies the Commission that the person or

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body has a relevant or proper interest in the proceeding.

(2) The Commission may require any person or body intending to make a submission— (a) to make the submission within any time specified

by the Commission that in the Commission's opinion is reasonable having regard to all the circumstances;

(b) to put all or any part of the submission in writing;

(c) to submit evidence or argument in support of the submission;

(d) to put in writing all or any part of any evidence or argument connected with the submission.

128. Representation

(1) Any person or body appearing before the Commission may be represented— (a) by a member, officer or employee of that person or

body; or (b) by an agent, whether or not for fee or reward.

(2) Nothing in this section prevents a natural person from appearing on his or her own behalf.

129. Immunity of participants

(1) Every member of the Commission has, in the performance of his or her duties under this Act, the same protection and immunity as a Judge of the Supreme Court has in the performance of his or her duties.

(2) Any person appearing for a party before the Commission has the same protection and immunity as a barrister has in appearing for a party in proceedings in the Supreme Court.

(3) Any person appearing as a witness before the Commission has the same protection as a witness in proceedings in the Supreme Court.

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130. Commission generally to be cost free jurisdiction

(1) The Commission may not order a party to a proceeding before it to pay any costs incurred by any other party to that proceeding, unless the Commission is of the view that the proceedings were commenced by that party vexatiously or without reasonable cause.

(2) In making an award or decision, the Commission may not include an amount representing, or in respect of, any costs incurred by a party to the proceeding resulting in the award or decision.

131. Contempt of Commission

(1) A person or body must comply with an order of the Commission.

(2) A person or body must not—

(a) insult or disturb a member of the Commission while the member is performing a function, or exercising a power, under this Act; or

(b) repeatedly interrupt a proceeding of the Commission; or

(c) do any other act or thing that would, if the Commission were a court of record, constitute a contempt of that court.


132. Offence to disclose confidential information

(1) A person must not disclose any evidence about a trade secret, or the profits or financial position of a witness or person appearing before the Commission, that is given to the Commission in a proceeding.


(2) However, a person may disclose such evidence if—

(a) the person has the consent of the person entitled to the trade secret or to whom the information relates; or

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(b) the disclosure is made in legal proceedings or in the performance of a duty under, or in connection

, with, this Act; or (c) the evidence is in the public domain at the time it

is disclosed.

(3) Such evidence does not enter the public domain merely because it is given to the Commission.

Division 2—Commission In Full Session

133. How result determined if opinion divided

(1) The decision on a question of the majority of the members of the Commission in Full Session hearing a proceeding is the decision of the Commission in Full Session.

(2) If opinion on a question is equally divided, the decision of the Commission in Full Session is the decision of the presiding member.

134. Change of members during a hearing

(1) If a member of the Commission in Full Session hearing a proceeding is unable to continue to sit, the President may appoint a replacement member.

(2) The appointment of a replacement member does not affect the conduct of the proceeding.

PART 12—RECOGNITION OF ASSOCIATIONS

135. Application for recognition

(1) An association of employers or employees may apply to the Commission in writing to be recognised with respect to an employer, an industry or an award.

(2) The Commission must hold a hearing on an application, and may hear submissions from the applicant and any other person or body and may call for and take evidence on the application.

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136. Grant of recognition

(1) The Commission may grant an application if it is satisfied—

(a) that the applicant is a genuine association with respect to the employer or industry concerned; and

(b) in the case of an association of employees, that the association has been authorised by an employee engaged by the employer or in the industry concerned to represent the employee in negotiations or proceedings.

(2) The Commission may also grant an application if it is satisfied that there are special circumstances which justify the applicant's recognition.

(3) Sub-section (1) (b) does not prevent the Commission granting an application for recognition by an association whose members are confined to one employer or industry.

137. Revocation of recognition

The Commission may revoke an association's recognition if the association—

(a) has failed to comply with an order of the Commission; or

(b) has repeatedly engaged in conduct which is in breach of any provision of an award, employment agreement or this Act.

138. Rights of recognised associations

A recognised association may— ^

(a) appear before the Commission in any matter affecting any interest of its members which relates to an award or a class of employees in respect of which it is recognised;

(b) represent its members in relation to an employment agreement to be made under this Act;

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(c) represent a member seeking to recover a payment under section 160 or 162.

139. Recognition of employers

An employer who employs persons under an award has the same rights and responsibilities as a recognised association with respect to that award.

PART 13—APPEALS

Division 1—Appeals to the Commission in Full Session

140. What can be appealed

An appeal may be made to the Commission in Full Session against— (a) an award made by a single member of the

Commission; (b) a decision by a single member of the Commission

not to make an award; (c) a decision under Part 12 (Recognition of

Associations) by a single member of the Commission.

141. Who can appeal

An appeal may be made—

(a) in the case of anything concerning, arising from or dealt with by, an award, by a recognised association recognised with respect to the award;

(£>) by the Minister;

(c) by a person or body affected by the award or decision.

142. Time limit on appeals

An appeal must be lodged within 10 business days after the day on which the award or decision is made.

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143. Decisions and awards stayed pending outcome of appeal

If an appeal is lodged, the Commission in Full Session may stay the effect of the award or decision which has been appealed until the appeal is decided or until it makes a further order.

144. Powers of the Commission on appeal

After hearing an appeal, the Commission in Full Session may do one or more of the following—

(a) confirm, quash or vary the award or decision;

(b) make a new award or decision dealing with the subject-matter of the award or decision appealed against;

(c) direct the member of the Commission whose award or decision was appealed against to take further action to deal with that subject-matter, or to act in accordance with the directions of the Commission in Full Session;

id) direct another member of the Commission to take some specified action in respect of that subject-matter.

Division Z—Referrals from the Commission

145. Referral of question of law to Full Court

(1) A member of the Commission may reserve any question in the form of a special case for the opinion of the Full Court of the Supreme Court.

(2) The Full Court must give its opinion on the question.

(3) Until the Full Court gives its opinion, the member of the Commission must not make any decision in the proceeding in which the question arose.

(4) The Full Court may make any order that it thinks appropriate concerning any costs arising under this section.

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PART 14—INSPECTORS

146. Appointment

(1) Inspectors are to be appointed under the Public Service Act 1974 from time to time for the purposes of this Act.

(2) The Chief Administrator may authorise a person appointed under section 84 of the Industrial Relations Act 1988 of the Commonwealth to exercise the powers and perform the functions of an inspector under this Act.

147. Certificate of appointment

(1) The Chief Administrator must give each inspector a certificate of appointment or authorisation.

(2) An inspector must produce the certificate on demand made by any person in respect of whom the inspector is attempting to exercise a power given to the inspector by this Act.

148. Functions of inspectors

The functions of an inspector are— (a) to ensure that the provisions of this Act and any

award, employment agreement, order, rule or regulation made under this Act are observed; and

(b) to do anything else that he or she is required to do under this, or any other, Act.

149. Powers of inspectors

(1) In addition to the other powers given to an inspector by this Act or by any other Act, an inspector may, for the purposes of carrying out his or her functions— (a) at any reasonable time of the day or night enter

and inspect any premises with any assistance that is necessary;

(b) require a person to produce at a specified time and place any records that the person is required to keep

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and any records in which accounts are kept of any amounts paid to people to whom this Act applies;

(c) inspect and copy those records; (d) question any person on any premises whom there

are reasonable grounds to believe works, or worked within the last 2 months, on those premises under an award;

(e) require such a person to provide answers to the inspector's questions in the form of a statutory declaration;

(/) do anything else that is necessary to enable him or her to perform those functions.

(2) An inspector does not have power to require a person to answer any question or give any evidence (other than a record referred to in sub-section (1) (b)) tending to incriminate that person.

(3) Before requiring a person to answer in the form of a statutory declaration any question that might incriminate the person, an inspector must advise the person of the person's right not to answer the question.

150. Offences concerning inspectors

(1) A person must not— (a) obstruct, hinder or delay; or (b) refuse admission to any premises to—

an inspector, or any person assisting an inspector, while the inspector is exercising a power given to the inspector by this Act.


(2) A person must comply with a requirement made, or a direction given, by an inspector exercising a power given to the inspector by this Act.


(3) A person must not prevent another person from appearing before, or being questioned by, an inspector.


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(4) A person must not assault, or directly or indirectly intimidate, or threaten, an inspector in connection with anything the inspector does, or intends to do, under this Act.


151. Employer must not prejudice workers for giving information

(1) An employer must not prejudice the employment of an employee merely because the employee gave an inspector information under this Act.


(2) Section 165 (2) applies to this section.

152. Inspectors are inspectors under other Acts also

An inspector is deemed to be an inspector under the Bread Industry Act 1959, the Shearers Accommodation Act 1976, the Shop Trading Act 1987 and the Labour and Industry Act 1958.

PART 15—PROSECUTIONS, EVIDENCE AND RECOVERY OFMONEY

153. Proceedings for offences to be brought in Industrial Division of the Magistrates' Court

(1) If a person is charged with an offence against this Act, the charge must be heard, and all penalties recovered, before the Magistrates' Court sitting as the Industrial Division.


(3) Nothing in this section deprives a person of any right that the person has under the Magistrates' Court Act 1989—

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Employee Relations Act 1992 s. 154 Act No. 83/1992

(a) to appeal to the County Court against any sentencing order made by the Industrial Division of the Magistrates' Court; or

(b) to appeal to the Supreme Court, on a question of law, from a final order of the Industrial Division of the Magistrates' Court.

154. Who can prosecute under this Act?

(1) A prosecution for an offence under this Act may only be brought by a person authorised by— (a) the Minister; or (b) the Chief Administrator, if the Minister has

authorised the Chief Administrator to give such an authorisation; or

(c) an officer of the Department of Business and Employment who the Minister has authorised to give such an authorisation.

(2) Any authorisation— (a) must be in writing; and (b) may be given generally, or only in relation to a

particular case or cases, or a particular class of case or cases; and

(c) may be revoked by the person who gave it at any time by notice in writing.

(3) The revocation of an authorisation does not affect any proceedings started by a person before that person's authorisation was revoked unless the notice of revocation states otherwise.

(4) In a prosecution for an offence under this Act, the Industrial Division of the Magistrates' Court must presume, in the absence of evidence to the contrary, that the prosecutor is authorised to bring the prosecution.

(5) A prosecution may only be conducted by— (a) the person authorised to bring the prosecution; or (b) an inspector; or (c) a barrister and solicitor briefed by the person

authorised to bring the prosecution.

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155. Judicial notice of signatures

All courts must take judicial notice of— (a) the signature of a person who is, or was at the time

the signature purports to have been made, the President, a Deputy President, a Commissioner, the Minister, the Chief Administrator, an officer to whom section 154 (1) (c) applies, the Chief Commission Administration Officer or an inspector; and

(b) the fact that a person listed in paragraph (a) held the position he or she purported to hold at the time the signature purports to have been made.

156. Official awards and certificates are evidence

(1) A copy of a document that is printed and that purports to be an award and to have been printed by, or with the authorisation of, the Chief Commission Administration Officer is admissible in any proceedings as evidence of the due making, and the contents, of the award.

(2) A document purporting to be an order made by a member of the Commission and purporting to be signed by that member is admissible in any proceedings as evidence of the due making, and the contents, of the order.

(3) A certificate certifying any matter relating to the contents of any register kept by the Chief Commission Administration Officer under this Act and purporting to be signed by the Chief Commission Administration Officer is admissible in any proceedings as evidence of the matters appearing in the certificate.

(4) A document certified by the Chief Commission Administration Officer as being an accurate copy of another document is admissible in any proceedings as evidence of the other document.

157. Proof of age

In any proceedings under this Act, if the age of a person at any time is an issue, the person's age at that time is to

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be the age which the court or other relevant body considers to be the person's age at that time having regard to the available evidence.

158. Conduct of agents imputed to corporations

For the purposes of this Act, any conduct engaged in on behalf of a corporation—

(a) by a director, employee or agent of the corporation acting within the scope of the person's actual or apparent authority; or

(b) by any other person at the direction, or with the consent (express or implied) of such a director, employee or agent—

is also conduct engaged in by the corporation.

159. Reverse onus of proof in certain cases

In a prosecution against an employer for failing to pay an employee an amount owed to the employee under an award or employment agreement if—

(a) the employee is dead; and

(b) the employer alleges that the period shown in the charge as being the period of continuous employment of the employee with the employer is wrong—

the employer bears the onus of proving the allegation.

160. Recovery of money owed

(1) An employee who is owed any money by an employer under this Act or any other Act, or under any award, employment agreement or order made under this Act or any other Act, may take proceedings in the Industrial Division of the Magistrates' Court to recover the money owing. The debt must arise out of the employment relationship.

(2) The proceedings must be started within 12 months of the employee's entitlement to the money arising.

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(3) An employee's recognised association may take proceedings under this section on behalf of the employee.

(4) Before proceedings may be started under this section, the employer must be given a written demand for the money owed.

(5) If the Court is satisfied that the employer—

(a) had reasonable notice of the employee's claim; and

(b) had no reasonable grounds on which to dispute the claim; and

(c) in the circumstances should have paid the claim without the need for proceedings being taken to establish the validity of the claim—

the Court may order the employer to pay interest to the employee on top of any other amount that the employee is entitled to.

(6) The interest must not be greater than the rate fixed under section 2 of the Penalty Interest Rates Act 1983 that applies at the time the Court makes the order.

(7) If a claim is made under this section by an employee's personal representative, sub-sections (5) and (6) apply despite anything to the contrary in section 29 of the Administration and Probate Act 1958.

161. Court may order payment of arrears on conviction

(1) If the Industrial Division of the Magistrates' Court finds an employer guilty of an offence relating to the underpayment of an employee, the Court may order the employer to pay the employee any amount that the employee was underpaid and that is still owed to the employee, in addition to imposing a penalty for the offence.

(2) However, under this section the Court may only order the employer to pay an amount in respect of a period of up to 12 months.

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Act No. 8311992

(3) Sub-sections (5), (6) and (7) of section 160 apply to this section.

(4) An order under this section may be enforced as if it were an order made by the Court in a civil proceeding. However, if any amount remains to be paid after all reasonable means of civil enforcement have been tried, the order may be enforced as if it were a fine imposed by the Court.

(5) Nothing in this section limits an employee's rights under section 160, and nothing in that section limits the power of the Court under this section.

162. Recovery of unpaid superannuation

(1) This section applies if an employer fails to make a contribution on behalf of an employee to an approved occupational superannuation scheme or fund in accordance with an award or employment agreement.

(2) The Industrial Division of the Magistrates' Court may order the employer to pay to the scheme or fund in accordance with the relevant award or employment agreement—

(a) the amount of the contribution that is unpaid; and

(b) the amount that, in the opinion of the Court, would have accrued in respect of the contribution in the scheme or fund had it been paid to the scheme or fund when due.

(3) The Court may make such an order—

(a) on its own motion on convicting the employer for failing to make a contribution; or

(b) on the application of the employee, or a recognised association on behalf of the employee.

(4) If, at the time an order is made, the employee no longer works for the employer, the Court may order the employer to pay the relevant amounts to a superannuation scheme or fund nominated by the employee.

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(5) A certificate signed, or purporting to be signed, by a trustee of an occupational superannuation scheme or fund as to—

(a) the amount of contribution that has been, or should have been, paid in respect of an employee for a particular period of time;

(b) the eligibility of an employee for membership of the scheme or fund;

(c) the amount that would have accrued in respect of a contribution or a series of contributions had it been in the scheme or fund over a particular period—

is evidence of the matters stated in the certificate.

PART 16—MISCELLANEOUS OFFENCES AND PROVISIONS

163. Awards and employment agreements must be complied with

A person must comply with every provision of an award or employment agreement that applies to the person and that imposes an obligation on the person.

Penalty: For a first offence—10 penalty units; For a second offence—20 penalty units; For a third or subsequent offence—30 penalty units.

164. Attempting, aiding, inducing etc. offences

A person who—

(a) attempts to contravene; or (b) aids, abets, counsels or procures a person to

contravene; or

(c) induces, or attempts to induce, a person whether by threats or promises or otherwise to contravene—

a provision of this Act for which a penalty is specified is guilty of an offence against that provision and is liable to the penalty specified for a contravention of that provision.

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Employee Relations Act 1992 165 Act No. 8311992

165. Offence to discriminate for industrial reasons

(1) An employer must not prejudice, or threaten to prejudice, a person who works for the employer on the grounds— (a) that the person is a party to a proceeding before

the Commission; or (6) of anything that the person says or does, or

doesn't say or do, in a proceeding before the

Commission.


(2) An employer prejudices a person if the employer— (a) dismisses the person from employment; or (b) demotes the person or fails to give the person a

promotion that the person could have reasonably expected; or

(c) detrimentally alters the position of the person in respect to the person's employment; or

(d) detrimentally alters the person's pay or conditions of employment.

166. Interval for meals

(1) An employer must not require an employee to work for more than 5 hours continuously without an interval for a meal, unless the relevant award or employment agreement allows the employer to do this.

(2) The interval for the meal must be for the period required by the award or employment agreement. If no period is set by the award or employment agreement, the interval must be for at least half an hour.


167. Certain guarantees illegal

(1) An employer must not require an employee to agree to pay to the employer a sum of money if the employee's behaviour, attendance or obedience is, in the opinion of the employer, unsatisfactory.


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(2) Such an agreement is void.

(3) Any money paid by an employee under such an agreement must be returned to the employee.

(4) If the money is not returned on demand, the employee may recover it summarily as a civil debt in the Industrial Division of the Magistrates' Court.

168. Supreme Court—limitation of jurisdiction

It is the intention of this section to alter or vary section 85 of the Constitution Act 1975 to the extent necessary—

(a) to prevent the bringing before the Supreme Court of a proceeding or matter of a kind referred to in section 19 (1), 37 (1) or 153 (1) of this Act;

(b) to prevent the Supreme Court having jurisdiction to hear and determine a cause of action founded on a tort referred to in section 37 (3) arising out of industrial action that is not unlawful apart from picketing activities;

(c) to prevent an appeal to the Supreme Court from a decision of the Commission under section 76 or 99 (4) of this Act.

PART 17—REGULATIONS

169. Regulations

(1) The Governor in Council may make regulations for or with respect to—

(a) forms for the purposes of this Act;

(b) the particulars to be kept in registers and records kept under this Act;

(c) the expenses payable to witnesses in any proceedings before the Commission;

(d) the inspection by employees of records kept under this Act which relate to them;

(e) oaths of office;

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(/) prescribing a penalty of up to 10 penalty units for any breach of the regulations;

(g) generally prescribing any other matter or thing required or permitted by this Act to be prescribed or necessary to be prescribed to give effect to this Act.

(2) The regulations— (a) may be of general or limited application; and (b) may differ according to differences in time, place

v or circumstance.

(3) Regulations made under this Act may be disallowed in whole or in part by resolution of either House of Parliament in accordance with the requirements of section 6 (2) of the Subordinate Legislation Act 1962.

(4) Disallowance under sub-section (3) is deemed to be disallowance by Parliament for the purpose of the Subordinate Legislation Act 1962.

PART 18—SAVINGS, TRANSITIONAL AND CONSEQUENTIAL PROVISIONS

170. Definitions

In this Part—

"appointed day" means 1 March 1993;

"former Act" means the Industrial Relations Act 1979;

"former Commission" means the Industrial Relations Commission of Victoria established by the former Act.

171. Proceedings

(1) In this section "relevant proceeding" means a proceeding— (a) begun before the former Commission before the

appointed day and which had not been completed at that day; and

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(b) that could have been brought before the Commission if it had been begun on or after the appointed day.

(2) If before the appointed day the former Commission had begun to hear any relevant proceeding and at the appointed day evidence on any question of fact material to that proceeding had been given to the former Commission but the proceeding had not been finally determined, any party to the proceeding may apply in writing to the Commission for a determination under sub-section (3).

(3) On an application under sub-section (2), the Commission may determine—

(a) to accept the proceeding as part-heard and to continue the hearing; or

(b) to re-hear the proceeding—

in accordance with this Act.

(4) If a relevant proceeding is continued to be heard, or is re-heard, by the Commission in accordance with a determination under sub-section (3), anything done in relation to that proceeding before the appointed day shall, so far as consistent with this Act, be taken to have been done for the purposes of the hearing and determination of the proceeding by the Commission and the Commission may, for the purposes of the hearing or re-hearing, have regard to any record of the earlier proceeding before the former Commission.

(5) If before the appointed day a relevant proceeding was pending before the former Commission but the former Commission had not begun to hear it or had begun to hear it but at the appointed day had not been given evidence on any question of fact material to it, the proceeding is to be heard and determined by the Commission in accordance with this Act and anything done in relation to that proceeding must, so far as consistent with this Act, be taken to have been done for the purposes of the hearing and determination of the proceeding by the Commission under this Act.

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(6) Until the appointed day any reference to the Commission in any provision of this or any other Act or of any subordinate instrument (within the meaning of the Interpretation of Legislation Act 1984) made under this or any other Act that is in force before that day must be taken to be a reference to the former Commission, unless the contrary intention appears.

172. Awards, orders and certified agreements

(1) On the appointed day—

(a) any award or order of the former Commission (other than an order made under Part VI of the former Act) then in force continues in force and is to be treated as if it were an award or order of the Commission under this Act;

(b) any order or decision of the former Commission . sitting in Court Session is to be treated as if it were an order or a decision of the Commission under this Act;

(c) any order of the former Commission made under Part VI of the former Act expires.

(2) Until the appointed day any reference to an award in any provision of this or any other Act or of any subordinate instrument (within the meaning of the Interpretation of Legislation Act 1984) made under this or any other Act that is in force before that day must be taken to be a reference to an award of the former Commission made under the former Act.

(3) On the commencement of this sub-section—

(a) any certified agreement under the former Act is to be treated as if it were a collective employment agreement under this Act;

(b) any association recognised under Part V of the former Act with respect to an award must be taken to be a recognised association under this Act with respect to that award.

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(4) Until the appointed day any reference to a recognised association in any provision of this or any other Act or of any subordinate instrument (within the meaning of the Interpretation of Legislation Act 1984) made under this or any other Act that is in force before that day must be taken to be a reference to a recognised association within the meaning of the former Act.

(5) If 2 months after the commencement of this sub-section an award does not comply with section 25 (1), it must then be taken to contain the provisions set out in Schedule 5.

(6) All awards in force on 1 March 1993 expire on that day. Section 24 (3) applies to an award that expires because of this sub-section.

(7) An agreement referred to in sub-section (3) (a) expires 4 months after the commencement of this sub-section. Section 11 (3) applies to an agreement that expires because of this sub-section.

173. Appeals

(1) Nothing in this Part deprives a person or body of any right that the person or body had under the former Act to appeal against anything done or not done under that Act.

(2) However, the law that is to be applied to the subject-matter of the appeal is to be the law established by this Act.

(3) Sub-section (2) does not apply to criminal proceedings.

174. Power to resolve transitional difficulties

(1) If any difficulty arises in any particular matter because of the operation of this Part, the President may make any order that he or she considers appropriate to resolve the difficulty.

(2) The President may make such an order on the application of any party to the matter, or on the President's own motion.

(3) An order under this section has effect despite anything to the contrary in the former Act.

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Act No. 8311992

175. Personnel

(1) On the appointed day the former Commission is abolished and the members of the former Commission go out of office.

(2) On the commencement of this sub-section the Metropolitan Industrial Court is abolished and special magistrates appointed to it go out of office as special magistrates.

(3) On the commencement of this sub-section an inspector appointed under section 87 or 88 of the former Act becomes an inspector under this Act.

176. Magistrates' Court proceedings

(1) Any proceeding that was started in the Metropolitan Industrial Court before the commencement of this section may be continued in the Industrial Division of the Magistrates' Court.

(2) Any reference to the Metropolitan Industrial Court in any Act, award, employment agreement, order, subordinate instrument or other document as far as it relates to any period after the commencement of this section is to be treated as a reference to the Industrial Division of the Magistrates' Court, unless the contrary intention appears.

177. Transition from former Commission

On the appointed day— (a) all rights, property and assets that, immediately

before that day, were vested in the former Commission are, by force of this section, vested in the Commission; and

(b) all debts, liabilities and obligations of the former Commission existing immediately before that day shall become, by force of this section, debts, liabilities and obligations of the Commission; and

(c) the Commission shall, by force of this section, be substituted as a party to any proceedings pending

1522


in any court to which the former Commission was a party immediately before that day; and

(d) the Commission shall, by force of this section, be substituted as a party to any arrangement or contract entered into by or on behalf of the former Commission as a party and in force immediately before that day; and

(e) any reference to the former Commission in any Act or in any proclamation, Order in Council, rule, regulation, order, agreement, instrument, deed or other document whatsoever shall, so far as it relates to any period after that day and if not inconsistent with the context or subject-matter, be construed as a reference to the Commission; and

(/) any reference to the registrar of the former Commission in any Act or in any proclamation, Order in Council, rule, regulation, order, agreement, instrument, deed or other document whatsoever shall, so far as it relates to any period after that day and if not inconsistent with the context or subject-matter, be construed as a reference to the Chief Commission Administration Officer.

178. Annual leave or maternity leave under former Act

(1) The rights conferred on a person by or under Part VI or VIIA of the former Act continue until they are varied or revoked under this Act.

(2) Sub-section (1) does not affect any rights conferred by the Interpretation of Legislation Act 1984.

179. Repeals

(1) The Industrial Relations Act 1979 (except section 45 and part XI) is repealed.

(2) Section 45 of the Industrial Relations Act 1979 is repealed.

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(3) Part XI of the Industrial Relations Act 1979 is repealed.

(4) The Hospitals Remuneration Tribunal Act 1978 is repealed.

180. Amendment of House Contracts Guarantee Act 1987

In section 22 of the House Contracts Guarantee Act 1987, after sub-section (2) insert—

"(2A) Rules referred to in this section must not contain any provision making the granting of any approval conditional on a person or body being a member of an industry association or of any other housing or building industry association of any kind whatsoever and any such provision is void.".

181. Amendment of Magistrates' Court Act 1989

In section 4 of the Magistrates' Court Act 1989— (a) after sub-section (2) insert—

"(2A) The Court has an Industrial Division. (2B) The Industrial Division has such of the

powers of the Court as are necessary to enable it to exercise its jurisdiction.";

(b) after sub-section (3) insert—

"(3A) Despite sub-section (3), the Industrial Division shall only be constituted by a magistrate who has been assigned to that Division by an Order made by the Governor in Council.

(3B) Despite anything to the contrary in this Act, a party to a proceeding in the Industrial Division may appear by a person who is not counsel or a solicitor if that person is authorised in writing by the party to appear for the party.

(3c) The Industrial Division must exercise its jurisdiction with the minimum of legal form and technicality.".

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182. Amendment of Trade Unions Act 1958

For section 3 (2) of the Trade Unions Act 1958 substitute— "(2) The Chief Commission Administration Officer of

the Employee Relations Commission under the Employee Relations Act 1992 is the registrar under this Act.".

183. Amendment of Legal Profession Practice Act 1958

In section 93 of the Legal Profession Practice Act 1958, after sub-section (2) insert—

"(2A) This section does not apply to any person who or body which (whether or not for or in expectation of any fee, gain or reward) draws or prepares any employment agreement within the meaning of the Employee Relations Act 1992 on behalf of a party or parties or a proposed party or parties to the agreement.".

184. Minor consequential amendments

An Act specified in the heading to an item in Schedule 6 is amended as set out in that item.

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Employee Relations Act 1992 Sch. 1 Act No. 8311992

SCHEDULES

SCHEDULE 1 Sections 14 (2), 25 (4)

MINIMUM TERMS AND CONDITIONS OF EMPLOYMENT

PART 1—GENERAL

1. Minimum terms and conditions of employment

The minimum terms and conditions of employment are— (a) paid annual leave for each year worked of the number of

ordinary hours required to be worked in any 4 week period during that year;

(b) paid sick leave for each year worked of the number of ordinary hours required to be worked in any 1 week period during that year;

(c) a rate of pay for each hour worked equal to the base award wage rate per hour for the classification of employee as at the commencement of this Schedule or, if the relevant award does not or did not then specify the number of hours to which the base weekly wage or salary provided for by it applies, a rate of pay for each week worked equal to that base weekly wage or salary;

(d) subject to and in accordance with this Schedule, maternity, paternity or adoption leave and an entitlement to work part-time in connection with the birth or adoption of a child.

PART 2—MATERNITY LEAVE

2. Nature of leave

Maternity leave is unpaid leave.

3. Definitions

In this Part—

"child" means a child of the employee under the age of one year;

"confinement", in relation to a female employee, means confinement caused by the birth of a child or other termination of a pregnancy;

"continuous service" means service under an unbroken contract of employment and includes—

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Employee Relations Act 1992 Act No. 83/1992 Sen. 1

SCHEDULE 1—continued

(a) any period of leave taken in accordance with this Part; and

(b) any period of leave or absence authorised by the employer or by an award or employment agreement; and

(c) any period of part-time employment in accordance with Part 5 (including part-time employment as a replacement employee);

"employee" includes a part-time employee but does not include an employee engaged in casual or seasonal work;

"expected date of confinement", in relation to a female employee, means a date certified by a medical practitioner to be the date on which the medical practitioner expects the employee to be confined in respect of her pregnancy;

"paternity leave" means leave of the type provided for by Part 3, whether prescribed by an award or an employment agreement or otherwise;

"spouse" includes a de facto spouse and a former spouse.

4. Eligibility for maternity leave

(1) An employee who becomes pregnant is, on production to her employer of the certificate required by clause 5, entitled to a period of up to 52 weeks of maternity leave.

(2) However, any such maternity leave may not extend beyond the child's first birthday.

(3) The entitlement to maternity leave under this clause is to be reduced by any period of paternity leave taken by the employee's spouse in relation to the same child. Apart from paternity leave of up to one week at the time of confinement, maternity leave is not to be taken concurrently with paternity leave.

(4) Subject to clauses 7 and 10, the period of maternity leave is to be unbroken and must, immediately following confinement, include a period of 6 weeks of compulsory leave.

(5) An employee must have had at least 12 months of continuous service with her employer immediately preceding the date on which she commences maternity leave.

5. Certification

When applying for maternity leave, an employee must, at the times specified in clause 6, produce to her employer—

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Sch. 1 Employee Relations Act 1992

Act No. 83/1992

SCHEDULE 1—continued (a) a certificate from a medical practitioner stating that she is

pregnant and the expected date of confinement;

(b) a statutory declaration—

(i) stating particulars of any period of paternity leave sought or taken by her spouse; and

(ii) stating her agreement that for the period of her maternity leave she will not engage in any conduct inconsistent with her contract of employment.

6. Notice requirements

(1) An employee must, not less than 10 weeks before the expected date of confinement, produce to her employer the certificate referred to in clause 5 (a).

(2) An employee must, not less than 4 weeks before she proposes to commence maternity leave, produce to her employer the statutory declaration referred to in clause 5 (b).

(3) An employer, by not less than 14 days' notice in writing to the employee, may require her to commence maternity leave at any time within the 6 weeks immediately before her expected date of confinement.

(4) An employee is not in breach of this clause as a consequence of failure to give the stipulated period of notice in accordance with sub-clause (2) if the failure is caused by the confinement occurring earlier than the expected date.

7. Transfer to a safe job

(1) If, in the opinion of a medical practitioner, illness or risks arising out of the pregnancy or hazards connected with the work assigned to the employee make it inadvisable for the employee to continue at her present work, the employer must, if the employer deems it practicable, transfer the employee to a safe job at the rate and on the conditions attaching to her present work until the commencement of maternity leave.


(2) If the transfer to a safe job is not practicable, the employee may, or the employer may require the employee to, take leave on full pay for such period as is certified necessary by a medical practitioner. Such leave is not to be treated as maternity leave for the purposes of this Part.

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SCHEDULE \—continued 8. Variation of period of maternity leave

(1) So long as the maximum period of maternity leave does not exceed the period to which the employee is entitled under clause 4—

(a) the period of maternity leave may be lengthened once only by the employee giving to her employer not less than 14 days' notice in writing stating the period by which the leave is to be lengthened; and

(p) the period may be further lengthened by agreement between the employer and the employee.

(2) The period of maternity leave may, with the consent of her employer, be shortened by the employee giving to her employer not less than 14 days' notice in writing stating the period by which the leave is to be shortened.

9. Cancellation of maternity leave

(1) Maternity leave, applied for but not commenced, is cancelled should the pregnancy of an employee terminate otherwise than by the birth of a living child.

(2) If the pregnancy of an employee then on maternity leave terminates otherwise than by the birth of a living child, it is the right of the employee to resume work at a time nominated by the employer which must be no later than 4 weeks after the date of notice in writing by the employee to the employer that she desires to resume work.

10. Special maternity leave and sick leave

(1) If the pregnancy of an employee not then on maternity leave terminates within 28 weeks before her expected date of confinement otherwise than by the birth of a living child, then—

(a) she is entitled to such period of unpaid leave (referred to in this Part as "special maternity leave") as a medical practitioner certifies to be necessary before her return to work; or

(b) for illness other than the normal consequences of confinement she is entitled, either instead of or in addition to special maternity leave, to such paid sick leave as she is then entitled to and as a medical practitioner certifies to be necessary before her return to work.

(2) If an employee not then on maternity leave suffers illness related to her pregnancy, she may take such paid sick leave as she is then entitled to and such further unpaid leave (referred to in this Part as

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Act No. 8311992

SCHEDULE \—continued "special maternity leave") as a medical practitioner certifies to be necessary before her return to work.

(3) For the purposes of this Part, maternity leave includes special maternity leave.

(4) An employee returning to work after the completion of a period of leave taken under this clause is entitled to the position which she held immediately before commencing that leave or, in the case of an employee who was transferred to a safe job under clause 7, to the position which she held immediately before that transfer.

(5) If that position no longer exists but there are other positions available which the employee is qualified for and is capable of performing, the employer must make available to the employee a position as nearly as possible comparable in status and pay to that of her former position.

Penalty: 20 penalty units

11. Maternity leave and other leave entitlements

(1) So long as the aggregate of any leave, including leave taken under this Part, does not exceed the period to which the employee is entitled under clause 4, an employee may, instead of or in conjunction with maternity leave, take any annual leave or long service leave or any part of it to which she is entitled.

(2) Paid sick leave or other paid absences authorised by an award or employment agreement (excluding annual leave or long service leave) are not available to an employee during her absence on maternity leave.

12. Effect of maternity leave on employment

Subject to this Part, despite any award, employment agreement or other provision to the contrary, absence on maternity leave does not break the continuity of service of an employee but is not to be taken into account in calculating the period of service for any purpose of any relevant award or employment agreement.

13. Termination of employment

(1) An employee on maternity leave may terminate her employment at any time during the period of leave by notice given in accordance with any relevant award or employment agreement.

(2) An employer must not terminate the employment of an employee on the ground of her pregnancy or of her absence on maternity

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SCHEDULE \—continued

leave, but otherwise the rights of an employer in relation to termination of employment are not affected by this Part.


14. Return to work after maternity leave

(1) An employee must confirm her intention of returning to work by notice in writing to the employer given not less than 4 weeks before the end of her period of maternity leave.

(2) An employee, on returning to work after maternity leave or the expiration of the notice required by sub-clause (1), is entitled—

(a) to the position which she held immediately before commencing maternity leave; or

(fc) in the case of an employee who was transferred to a safe job under clause 7, to the position which she held immediately before that transfer; or

(c) in the case of an employee who has worked part-time during the pregnancy, to the position which she held immediately before commencing the part-time employment.

(3) If the position no longer exists but there are other positions available which the employee is qualified for and is capable of performing, the employer must make available to the employee a position as nearly as possible comparable in status and pay to that of her former position.


15. Replacement employees

(1) A replacement employee is an employee specifically engaged as a result of an employee proceeding on maternity leave.

(2) Before an employer engages a replacement employee, the employer must inform that person of the temporary nature of the employment and of the rights of the employee who is being replaced.


(3) Before an employer engages a person to replace an employee temporarily promoted or transferred in order to replace an employee exercising her rights under this Part, the employer must inform that person of the temporary nature of the promotion or transfer and of the rights of the employee who is being replaced.


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Sch.l Employee Relations Act 1992

Act No. 83/1992

SCHEDULE 1—continued (4) Nothing in this Part is to be construed as requiring an employer to

engage a replacement employee.

PART 3—PATERNITY LEAVE

16. Nature of leave

Paternity leave is unpaid leave.

17. Definitions

In this Part—

"child" means a child of the employee or the employee's spouse under the age of one year;

"connnement", in relation to an employee's spouse, means the spouse's confinement caused by the birth of a child or other termination of a pregnancy;



(b) any period of leave or absence authorised by the employer or by an award or employment agreement; and


"employee" includes a part-time employee, but does not include an employee engaged in casual or seasonal work;

"expected date of connnement", in relation to an employee's spouse, means a date certified by a medical practitioner to be the date on which the medical practitioner expects the spouse to be confined in respect of her pregnancy;

"maternity leave" means leave of the type provided for by Part 2 (and includes special maternity leave), whether prescribed by an award or an employment agreement or otherwise;

"primary care-giver" means a person who assumes the principal role of providing care and attention to a child;


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Employee Relations Act 1992 Act No. 83/1992 Sch. 1


18. Eligibility for paternity leave

(1) A male employee is, on production to his employer of the certificate required by clause 19 (a), entitled to one or two periods of paternity leave, the total of which must not exceed 52 weeks, in the following circumstances—

(a) an unbroken period of up to one week at the time of confinement of his spouse (referred to in this Part as "short paternity leave");

(b) a further unbroken period of up to 51 weeks in order to be the primary care-giver of a child if the leave does not extend beyond the child's first birthday (referred to in this Part as "extended paternity leave"). This entitlement is to be reduced by any period of maternity leave taken by the employee's spouse in relation to the same child and is not to be taken concurrently with that maternity leave.

(2) An employee must have had at least 12 months of continuous service with his employer immediately preceding the date on which he commences either period of leave.

19. Certification

When applying for paternity leave, an employee must, at the times specified in clause 20, produce to his employer—

(a) a certificate from a medical practitioner which names his spouse, states that she is pregnant and the expected date of confinement or states the date on which the birth took place;

(b) in relation to any period of extended paternity leave to be taken, a statutory declaration—

(i) stating that he is seeking that period of paternity leave to become the primary care-giver of a child; and

(ii) stating particulars of any period of maternity leave sought or taken by his spouse; and

• (iii) stating his agreement that for the period of his paternity leave he will not engage in any conduct inconsistent with his contract of employment.


(1) An employee must, not less than 10 weeks before each proposed period of leave, give his employer notice in writing stating the dates on which he proposes to start and finish the period or periods of leave and produce the certificate and statutory declaration required by clause 19.

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Employee Relations Act 1992 Sch.l Act No. 8311992

SCHEDULE I—continued

(2) An employee is not in breach of this clause as a consequence of failure to give the stipulated period of notice in accordance with sub-clause (1) if the failure is caused by—

(a) the birth occurring earlier than the expected date; or

(b) the death of the mother of the child; or

(c) other compelling circumstances.

(3) The employee must immediately notify his employer of any change in the information provided under clause 19.

21. Variation of period of paternity leave

(1) So long as the maximum period of paternity leave does not exceed the period to which the employee is entitled under clause 18—

(a) the period of extended paternity leave may be lengthened once only by the employee giving not less than 14 days' notice in writing stating the period by which the leave is to be lengthened; and

(b) the period may be further lengthened by agreement between the employer and the employee.

(2) The period of extended paternity leave may, with the consent of the employer, be shortened by the employee giving not less than 14 days' notice in writing stating the period by which the leave is to be shortened.

22. Cancellation of paternity leave

Extended paternity leave, applied for but not commenced, is cancelled when the pregnancy of the employee's spouse terminates otherwise than by the birth of a living child.

23. Paternity leave and other leave entitlements

(1) So long as the aggregate of any leave, including leave taken under this Part, does not exceed the period to which the employee is entitled under clause 18, an employee may, instead of or in conjunction with paternity leave, take any annual leave or long > service leave or any part of it to which he is entitled.

(2) Paid sick leave or other paid absence authorised by an award or employment agreement (excluding annual leave or long service leave) is not available to an employee during his absence on paternity leave.

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2A. Effect of paternity leave on employment

Subject to this Part, despite any award, employment agreement or other provision to the contrary, absence on paternity leave does not break the continuity of service of an employee but is not to be taken into account in calculating the period of service for any purpose of any relevant award or employment agreement.


(1) An employee on paternity leave may terminate his employment at any time during the period of leave by notice given in accordance with any relevant award or employment agreement.

(2) ' An employer must not terminate the employment of an employee on the ground of his absence on paternity leave, but otherwise the rights of an employer in relation to termination of employment are not affected by this Part.


26. Return to work after paternity leave

(1) An employee must confirm his intention of returning to work by notice in writing to the employer given not less than 4 weeks before the end of the period of extended paternity leave.

(2) An employee, on returning to work after paternity leave or the expiration of the notice required by sub-clause (1) is entitled—

(a) to the position which he held immediately before commencing paternity leave; or

(b) in the case of an employee who has worked part-time in connection with the birth of the child, to the position which he held immediately before commencing the part-time employment.

(3) If the position no longer exists but there are other positions available which the employee is qualified for and is capable of performing, the employer must make available to the employee a position as nearly as possible comparable in status and pay to that of his former position.



(1) A replacement employee is an employee specifically engaged as a result of an employee proceeding on paternity leave.

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Employee Relations Act 1992 Sch. 1 Act No. 83/1992

SCHEDULE 1—continued (2) Before an employer engages a replacement employee, the

employer must inform that person of the temporary nature of the employment and of the rights of the employee who is being replaced.


(3) Before an employer engages a person to replace an employee temporarily promoted or transferred in order to replace an employee exercising his rights under this Part, the employer must inform that person of the temporary nature of the promotion or transfer and of the rights of the employee who is being replaced.


(4) Nothing in this Part is to be construed as requiring an employer to engage a replacement employee.

PART 4—ADOPTION LEAVE

28. Nature of leave

Adoption leave is unpaid leave.

29. Definitions

In this Part—

"child", in relation to an employee, means a person under the age of 5 years who is placed with the employee for the purposes of adoption and who has not previously lived continuously with the employee for a period of 6 months or more or is not a child or step-child of the employee or of the spouse of the employee;



(b) any period of leave or absence authorised by the employer or by any relevant award or employment agreement; and


"employee" includes a part-time employee, but does not include an employee engaged in casual or seasonal work;

1536



"primary care-giver" means a person who assumes the principal role of providing care and attention to a child;

"relative adoption" occurs where a child is adopted by a parent, a spouse of a parent or another relative, being a grandparent, brother, sister, aunt or uncle (whether of the whole blood or half blood or by marriage);


30. Eligibility for adoption leave

(1) An employee is, on production to the employer of the documentation required by clause 31, entitled to one or two periods of adoption leave, the total of which must not exceed 52 weeks, in the following circumstances—

(a) an unbroken period of up to 3 weeks at a time of the placement of the child (referred to in this Part as "short adoption leave");

(fc) an unbroken period of up to 52 weeks from the time of the placement of the child in order to be the primary care-giver of the child (referred to in this part as "extended adoption leave"). This entitlement is to be reduced by—

(i) any period of short adoption leave taken; and

(ii) the aggregate of any periods of adoption leave taken or to be taken by the employee's spouse in relation to the same child—

but extended adoption leave is not to extend beyond one year after the placement of the child and is not to be taken concurrently with adoption leave taken by the employee's spouse in relation to the same child.

(2) The employee must have had at least 12 months of continuous service with his or her employer immediately preceding the date on which he or she commences either period of leave.

31. Certification

(1) Before taking adoption leave, the employee must produce to the employer—

(a) a statement from an adoption agency or another appropriate body of the expected date of placement of the child with the employee for adoption purposes; or

(b) a statement from the appropriate government authority confirming that the employee is to have custody of the child pending application for an adoption order.

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Sch.l Employee Relations Act 1992

Act No. 83/1992

SCHEDULE 1—-continued

(2) In relation to any period of extended adoption leave to be taken, the employee must also produce a statutory declaration—

(a) stating that the employee is seeking that period of adoption leave to become the primary care-giver of the child; and

(fc) stating particulars of any period of adoption leave sought or taken by the employee's spouse; and

(c) stating the employee's agreement that for the period of his or her adoption leave he or she will not engage in any conduct inconsistent with his or her contract of employment.


(1) On receiving notice of approval for adoption purposes, an employee must notify his or her employer of the approval and, within 2 months after receiving notice of the approval, must further notify the employer of the period or periods of adoption leave which the employee proposes to take. In the case of a relative adoption, the employee must so notify the employer on deciding to take a child into custody pending an application for an adoption order.

(2) An employee who commences employment with an employer after the date of approval for adoption purposes must notify the employer of that date on commencing employment and of the period of adoption leave which the employee proposes to take. Such an employee is not entitled to adoption leave unless he or she has not less than 12 months of continuous service with that employer immediately preceding the date on which he or she commences the leave.

(3) An employee must, as soon as he or she is aware of the expected date of placement of a child for adoption purposes but no later than 14 days before the expected date of placement, give notice in writing to his or her employer of that date, and of the date of commencement of any period of short adoption leave to be taken.

(4) An employee must, at least 10 weeks before the proposed date of commencing any period of extended adoption leave to be taken, give notice in writing to the employer of the date of commencing leave and the period of leave to be taken.

(5) An employee is not in breach of this clause as a consequence of failure to give the stipulated period of notice in accordance with sub-clause (3) or (4) if the failure is caused by—

(a) the requirement of an adoption agency for the employee to accept earlier or later placement of a child; or

(b) the death of his or her spouse; or

(c) other compelling circumstances.

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33. Variation of period of adoption leave

(1) So long as the maximum period of adoption leave does not exceed the period to which the employee is entitled under clause 30—

(a) the period of extended adoption leave may be lengthened once only by the employee giving not less than 14 days' notice in writing stating the period by which the leave is to be lengthened; and

(b) the period may be further lengthened by agreement between the employer and the employee.

(2) The period of extended adoption leave may, with the consent of the employer, be shortened by the employee giving not less than 14 days' notice in writing stating the period by which the leave is to be shortened.

34. Cancellation of adoption leave

(1) Adoption leave, applied for but not commenced, is cancelled should the placement of the child not proceed.

(2) If the placement of a child for adoption purposes with an employee then on adoption leave does not proceed or continue, the employee must notify the employer forthwith and the employer must nominate a time not exceeding 4 weeks from receipt of the notification for the resumption of work by the employee.

35. Special leave

(1) The employer must grant to any employee who is seeking to adopt a child any unpaid leave not exceeding 2 days that is required by the employee to attend any compulsory interviews or examinations that are necessary as part of the adoption procedure.

(2) If paid leave is available to the employee, the employer may require the employee to take such leave instead of special leave.

36. Adoption leave and other entitlements

(1) So long as the aggregate of any leave, including leave taken under this Part, does not exceed the period to which the employee is entitled under clause 30, an employee may, instead of or in conjunction with adoption leave, take any annual leave or long service leave or any part of it to which he or she is entitled.

(2) Paid sick leave or other paid absence authorised by an award or employment agreement (excluding annual leave or long service leave) is not available to an employee during the employee's absence on adoption leave.

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Act No. 8311992

SCHEDULE I—continued 37. Effect of adoption leave on employment

Subject to this Part, despite any award, employment agreement or other provision to the contrary, absence on adoption leave does not break the continuity of service of an employee but is not to be taken into account in calculating the period of service for any purpose of any relevant award or employment agreement.


(1) An employee on adoption leave may terminate the employment at any time during the period of leave by notice given in accordance with any relevant award or employment agreement.

(2) An employer must not terminate the employment of an employee on the ground of the employee's application to adopt a child or absence on adoption leave, but otherwise the rights of an employer in relation to termination of employment are not affected by this Part.


39. Return to work after adoption leave

(1) An employee must confirm his or her intention of returning to work by notice in writing to the employer given not less than 4 weeks before the end of the period of extended adoption leave.

(2) An employee, on returning to work after adoption leave, is entitled—

(a) to the position which he or she held immediately before commencing adoption leave; or

(b) in the case of an employee who has worked part-time in connection with the adoption of the child, to the position which he or she held immediately before commencing the part-time employment.

(3) If the position no longer exists but there are other positions available which the employee is qualified for and is capable of performing, the employer must make available to the employee a position as nearly as possible comparable in status and pay to that of the employee's former position.



(1) A replacement employee is an employee specifically engaged as a result of an employee proceeding on adoption leave.

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(2) Before an employer engages a replacement employee, the employer must inform that person of the temporary nature of the employment and of the rights of the employee who is being replaced.


(3) Before an employer engages a person to replace an employee temporarily promoted or transferred in order to replace an employee exercising his or her rights under this Part, the employer must inform that person of the temporary nature of the promotion or transfer and of the rights of the employee who is being replaced.



PART 5—PART-TIME EMPLOYMENT

41. Definitions

In this Part—


(a) any period of part-time employment in accordance with this Part (including part-time employment as a replacement employee); and

(b) any period of leave or absence authorised by the employer or by any relevant award or employment agreement;

"female employee" means an employed female who is pregnant or is caring for a child whom she has borne or a child who has been placed with her for adoption purposes;

"former position" means the position held by an employee immediately before commencing part-time employment under this Part or, if such position no longer exists but there are other positions available for which the employee is qualified and the duties of which he or she is capable of performing, a position as nearly as possible comparable in status and pay to that of the position held by the employee immediately before commencing part-time employment;

"male employee" means an employed male who is caring for a child born of his spouse or a child placed with the employee for adoption purposes;

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Employee Relations Act 1992 Sch.l Act No. 83/1992

SCHEDULE 1—continued "part-time employment" means work of a lesser number of

hours than constitutes full-time work under the relevant award or employment agreement, but does not include casual or temporary work;


42. Entitlement

With the agreement of the employer—

(a) a female employee may work part-time in one or more periods while she is pregnant if part-time employment is, because of the pregnancy, necessary or desirable;

(fo) a female employee may work part-time in one or more periods at any time from the seventh week after the date of birth of the child until the child's second birthday or, in relation to adoption, from the date of placement of the child until the second anniversary of the placement;

(c) a male employee may work part-time in one or more periods at any time from the date of birth of the child until the child's second birthday or, in relation to adoption, from the date of placement of the child until the second anniversary of the placement.

43. Return to former position

(1) An employee who has had at least 12 months continuous service with an employer immediately before commencing part-time employment after the birth or placement of a child has, at the end of the period of part-time employment or the first period, if there is more than one, the right to return to his or her former position.

(2) Nothing in sub-clause (1) prevents the employer from permitting the employee to return to his or her former position after a second or subsequent period of part-time employment.

44. Effect of part-time employment on continuous service

Despite any award, employment agreement or other provision to the contrary, commencement on part-time employment under this Part, and return from part-time employment to full-time employment under this Part, does not break the continuity of service of an employee.

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45. Pro rata entitlements

Subject to this Part and the matters agreed in the part-time employment agreement under clause 48, part-time employment is to be, pro rata, in accordance with the provisions of any award or employment agreement applicable to the work concerned.

46. Transitional arrangements—annual leave

(1) An employee working part-time under this Part is to be paid for and take any annual leave accrued in respect of a period of full-time employment, in such periods and manner as is specified in the annual leave provisions of the award or employment agreement applicable of the work concerned, as if the employee were working full-time in the class or work the employee was performing as a full-time employee immediately before commencing part-time employment under this Part.

(2) A full-time employee is to be paid for and take any annual leave accrued in respect of a period of part-time employment under this Part, in such periods and manner as is specified in the annual leave provisions of the award or employment agreement applicable to the work concerned, as if the employee were working part-time in the class of work the employee was performing as a part-time employee immediately before resuming full-time work.

(3) By agreement between the employer and the employee, the period over which leave is taken under sub-clause (2) may be shortened to the extent necessary for the employee to receive pay at the employee's current full-time rate.

47. Transitional arrangements—sick leave

(1) An employee working part-time under this Part is to have sick leave entitlements which have accrued under the award or employment agreement applicable to the work concerned (including any entitlement accrued in respect of previous full-time employment) converted into hours.

(2) When this entitlement is used, whether as a part-time employee or as a full-time employee, it is to be debited for the ordinary hours that the employee would have worked during the period of absence.

48. Part-time employment agreement

(1) Before commencing a period of part-time employment under this Part the employee and the employer must agree—

(a) that the employee may work part-time; and

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Employee Relations Act 1992 Sch.l Act No. 8311992


(b) on the hours to be worked by the employee, the days on which they will be worked and commencing times for the work; and

(c) on the classification applying to the work to be performed; and

(d) on the period of part-time employment.

(2) The terms of this agreement may be varied by consent.

(3) The terms of this agreement or any variation to it must be put in writing and retained by the employer. A copy of the agreement and any variation to it must be provided to the employee by the employer.


(1) The employment of a part-time employee under this Part may be terminated in accordance with the provisions of this Part but must not be terminated by the employer because the employee has exercised or proposes to exercise any rights arising under this Part or has enjoyed or proposes to enjoy any benefits arising under this Part.

(2) Any termination entitlements payable to an employee whose employment is terminated while working part-time under this Part, or while working full-time after transferring from part-time employment under this Part, are to be calculated by reference to the full-time rate of pay at the time of termination and by regarding all service as a full-time employee as qualifying for a termination entitlement based on the period of a full-time employment and all service as a part-time employee as qualifying on a pro rata basis.

50. Extension of hours of work

An employer may request, but not require, an employee working part-time under this Part to work overtime.

51. Nature of part-time employment

The work to be performed part-time need not be the work performed by the employee in his or her former position but must be work otherwise performed under any relevant award or employment agreement.

52. Inconsistent award provisions

An employee may work part-time under this Part despite any other provision of any relevant award or employment agreement which

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Employee Relations Act 1992 Act No. 8311992 Sch.2


limits or restricts the circumstances in which part-time employment may be worked or the terms on which it may be worked including any provision—

(a) limiting the number of employees who may work part-time; or

(b) establishing quotas as to the ratio of part-time to full-time employees; or

(c) prescribing a minimum or maximum number of hours a part-time employee may work; or

(d) requiring consultation with, the consent of or monitoring by, an association of employees—

and such provisions do not apply to part-time employment under this Part.


(1) A replacement employee is an employee specifically engaged as a result of an employee working part-time under this Part.

(2) A replacement employee may be employed part-time. Subject to this clause, clauses 45 to 49 and 52 apply to the part-time employment of a replacement employee.

(3) Before an employer engages a replacement employee under this Part, the employer must inform the person of the temporary nature of the employment and of the rights of the employee who is being replaced.



SCHEDULE 2 Section 51 (2)

CODE OF PRACTICE FOR INDUSTRIAL ACTION SECRET BALLOTS

1. For the purposes of this Schedule a group is—

(a) the employee parties to a collective employment agreement; or

(b) 2 or more persons who are parties to individual employment agreements with the same employer; or

(c) an association of employees—

and references to the members of a group must be construed accordingly.

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Employee Relations Act 1992 Sch.2 Act No. 8311992


2. An industrial action secret ballot is not to take place until—

(a) any agreed procedures, either formal or informal, which might lead to the resolution of a dispute without the need for industrial action have been completed; or

(b) if no such procedures are available, or have been exhausted, consideration has been given to resolving the dispute by other means, including (where practicable) seeking assistance from the Employee Relations Commission.

3. A group can only hold a ballot on industrial action if—

(a) it is contemplating authorising or endorsing industrial action; and

(b) it would be lawful for the group to organise, or employees to engage in, the industrial action concerned if the ballot were held and the ballot authorised the action.

4. A group may wish to obtain its members' views about something other than their willingness to take part in, or continue with, industrial action—for example, its negotiating position or an offer made by an employer. Such a ballot can only be combined with an industrial action ballot when the group is contemplating the authorisation or endorsement of industrial action.

5. A group must inform every employer whose employees may be given an entitlement to vote of its intention to hold the ballot.

6. If more than one group decides that it wishes to ballot members working for the same employer in connection with the same dispute or potential dispute, the arrangements for the different ballots must be co-ordinated so that, as far as practicable, they are held at the same time and the results are announced simultaneously.

7. Entitlement to vote in the ballot must be given to all the group's members who will be induced (whether that inducement will be successful or not) to take part in, or continue with, the industrial action, and to no other member.

8. If the ballot is proposed to cover members of a group with different -places of work then, a separate place of work ballot (or ballots) will be necessary. It will be unlawful to organise industrial action at any such place of work if a majority of those voting at that place have not voted "yes" in response to the relevant question.

9. A ballot must be conducted by—

(a) postal voting; or

(b) members casting votes at their workplace or a place more convenient to them; or

(c) a mix of these methods.

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10. Whatever method of balloting is used, the group must ensure that adequate arrangements are made for independent scrutiny to oversee the ballot and for an independent scrutineer to report on its conduct. The report must be in writing, and be made available to the group's members on demand after the ballot has taken place.

11. Any person or body eligible to act as an independent scrutineer for statutory trade union elections or political fund ballots is suitable to act as an independent scrutineer for an industrial action ballot. If it is not practicable to make such arrangements, the group must consider other arrangements. An individual who is directly affected by the dispute or potential dispute to which the ballot relates, or a trade union official who regularly represents any of those entitled to vote in the ballot, must not act as an independent scrutineer.

12. Whatever the voting method adopted, votes must be recorded only by the individual voter marking a voting paper.

13. The voting paper must—

(a) make clear whether voters are being asked if they are prepared to take part in industrial action which consists of a strike, or of action short of a strike; and

(b) specify the person or description of persons who the group intends to have authority to call for industrial action to which the ballot relates, in the event of a vote in favour of industrial action.

14. The voter must be asked whether he or she is willing to take part in, or continue with, the industrial action which the group may authorise or endorse. If the group's inducement of a voter might be to take strike or other industrial action, separate questions in respect of each form of action must appear on the voting paper.

15. The relevant question (or questions) must be simply expressed and appear on the voting paper separately from any other question that might also appear. Voters must not be misled or confused by the framing of the question (or questions). They should not be led to believe, for example, that they are being asked to agree to an opinion about the group's view of the merits of the dispute or potential dispute. Nor can a voter be asked if he or she is prepared to "support" industrial action as part of the question which asks him or her if he or she is prepared to take part in or continue with it.

16. The group must ensure that neither the required question (or questions), nor anything else which appears on the voting paper, is presented in a way which might encourage a voter to answer one way rather than another as a result of that presentation.

17. The following words must appear on every voting paper—

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Sen. 2 Employee Relations Act 1992

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"If you take part in a strike or other industrial action, you may be in breach of your contract of employment."

This statement must not be qualified or commented on by anything else on the voting paper.

18. Arrangements for the production and distribution of the voting papers must be such as to ensure that no mistakes are made which might invalidate the ballot thought a failure to satisfy the statutory requirements. The group must seek the advice of any independent scrutineer appointed in connection with the ballot about appropriate arrangements for the printing and distribution of voting papers and be guided by any such advice offered.

19. A group must give relevant information to its members entitled to vote in the ballot, including—

(a) the background to the ballot and the issues to which the dispute relates;

(ft) how the voting papers will be distributed and returned;

(c) the nature and timing of the industrial action which the group may be prepared to authorise or endorse on the ballot result;

(d) any consideration in respect of turnout or size of the majority vote in the ballot that will be relevant to the decision on whether to authorise or endorse industrial action after the ballot;

(e) the potential consequences for employees of taking industrial action.

A group is free to communicate with its members in a lawful manner and by lawful means. In connection with a ballot it must consider doing so by special notices or meetings.

20. A group must take steps to ensure that any information that it supplies to members in connection with the ballot is accurate and does not mislead voters in the process of forming their opinions about which way to vote. The group must consider—

(a) preparing a standard statement for inclusion with information issued in connection with the ballot about the possible effects on individual employees Of taking industrial action; and

(b) making arrangements which will enable it to review any information which its members, officials or employees propose to issue in connection with a ballot or ballot voting papers to ensure its factual accuracy.

21. In an industrial action ballot—

1548



(a) the method of voting must be by the marking of a voting paper by the person voting. No other method of voting will satisfy the statutory requirements—for example, a "show of hands" is not sufficient even if it appears to show overwhelming support for taking industrial action;

(b) every person properly entitled to vote must be allowed to do so without interference from, or constraint imposed by, the group or any of its members, officials or employees;

(c) as far as reasonably practicable, every person properly entitled to vote must be—

(i) allowed to do so without incurring any direct cost to himself or herself;

(ii) giveri a voting paper and a convenient opportunity to vote; and

(d) as far as reasonably practicable, the ballot must be conducted in such a way as to ensure that those voting do so in secret.

22. The group must ensure that all of its members, officials and employees who might, even inadvertently, interfere with or constrain those entitled to vote in an industrial action ballot are aware of the potential consequences (that is, that their ballot will fail to satisfy the statutory requirements) if their behaviour is regarded as having either of these effects.

23. The group must make arrangements so that—

(a) if postal balloting methods are used, those properly entitled to vote are supplied with pre-paid reply envelopes with the voting paper so that they do not have to incur any postal costs themselves in order to vote;

(b) if the workplace balloting method is used, the time allowed for voters to collect their voting papers and to cast votes is outside the normal working hours of those properly entitled to vote if that is necessary to ensure that they do not risk losing pay as a consequence of participating in the ballot.

24. Whatever method of balloting is adopted, the group must make arrangements so that—

(a) each of its members properly entitled to vote is on the relevant voters' list, and is supplied with a voting paper; and

(b) advice is given to those entitled to vote, well in advance, of where, when and how the balloting will take place.

25. For postal balloting the period between distribution of voting papers and the date by which completed voting papers are to be returned must allow at least 10 days.

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SCHEDULE 2—continued 26. The group must establish an appropriate checking system so that—

(a) no-one properly entitled to vote is accidentally disenfranchised; and

(b) no uncompleted voting paper comes into the hands of anyone not properly entitled to vote who might use it to cast a vote to which he or she is not entitled.

Advice on these matters can be sought from any independent scrutineer appointed in connection with the ballot.

27. For workplace balloting—

(a) postal voting papers must be provided to anyone properly entitled to vote who is known to be unable either to collect his or her voting paper at the time or location where they are issued or to cast his or her vote at the location where "workplace" balloting is to take place; any such special distribution of any voting paper must be recorded so as to avoid duplicating its issue and to allow sufficient time for its return when completed;

(b) arrangements for independent scrutiny must be made for every location where votes are cast;

(c) the actual issue of voting papers to voters must not be entrusted to one member of the group alone (unless that person is acting as an independent scrutineer of the ballot), nor to anyone who is directly affected by the dispute or potential dispute to which the ballot relates or who is a trade union official who regularly represents any of those entitled to vote in the ballot;

(d) everyone properly entitled to vote must be advised where and when balloting will take place, and what identification will be required in order to establish entitlement to vote at the location where his or her vote may be cast;

(e) the time allowed for balloting must take into account the working hours of all those properly entitled to vote and allow them adequate time to cast their votes if they wish to do so.

28. In all ballots, conducted by whatever method, a list of those entitled to vote must be compiled, and the voting papers themselves handled, so as to preserve the anonymity of the voter so far as this is consistent with the proper conduct of the ballot.

29. The group must take sufficient steps to ensure that a voter's anonymity is preserved when a voting paper is returned by post. This means, for example, that—

1550


SCHEDULE 2—continued (a) envelopes in which voting papers are to be posted must not

have distinguishing marks from which the identity of the voter could be established;

(b) the procedures for counting voting papers returned by post must not prejudice the statutory requirements for secret voting.

30. The group must make the following arrangements for workplace ballots— .

(a) voting must take place in a room or area where there is privacy for the voter to mark his or her voting paper and cast his or her vote;

(b) no-one must be allowed in that room or area at the time when voting is taking place except those issuing voting papers, any independent scrutineer appointed in connection with the ballot and those properly entitled to vote; once the voter has cast his or her vote he or she must leave the room or area;

(c) a single, secure and locked receptacle ("ballot box") must be provided in the room or area used for voting at the time when voting is taking place, with its key held by someone not directly involved with the result of the ballot, such as an independent scrutineer overseeing the balloting process; completed voting papers must be placed in that receptable by the voter personally;

(d) if the completed voting papers are to be taken out of a ballot box and then posted (or otherwise sent) all together to a central location for counting, each voter must be given a sealable envelope in which to put his or her completed voting paper, the envelope must be placed into a locked ballot box as described in paragraph (c), and at the end of the voting period all such envelopes must be transferred unopened to the central location.

31. The group must ensure that the votes given in an industrial action ballot are fairly and accurately counted; any inaccuracy in such counting may only be disregarded if it is both accidental and on a scale which could not affect the result of the ballot.

32. Even if the result of a properly conducted ballot shows that a majority of those voting are willing to take part in, or continue with, industrial action, there is no statutory obligation on a group to authorise or endorse industrial action.

33. The group must consider and apply the following procedures—

(a) destruction of all unused or unissued voting papers as soon as possible after the time allowed for voting has passed and

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SCHEDULE 2—continued the necessary information for checking the number of voting papers issued and used has been prepared;

(b) rejection of all completed voting papers received after the official close of voting or the time set for receipt of such papers;

(c) settlement well in advance of the actual ballot of the organisational arrangements for conducting the count of votes cast, and making available equipment or facilities needed in the conduct of the count to those concerned;

(d) proper briefing of all those involved in the counting process, particularly those doing the actual counting of completed voting papers, as to their responsibilities;

(e) delaying the counting of votes at any one location until all the voting papers to be counted at that location have been received;

(/) storage of all voting papers received by post at the counting location in a locked and secured room as soon as they arrive, and keeping them under such secure conditions until removed for counting;

(g) making an individual—someone who is neither directly affected by the dispute or potential dispute to which the ballot relates, nor is a trade union official who regularly represents any of those entitled to vote in the ballot— responsible for adjudicating on any voting paper which those doing the actual counting propose to reject as "spoiled", and ensuring that those doing the actual counting refer any such voting paper about which they are in doubt to the adjudicator;

(h) if voting papers arrive at the counting location in envelopes, regular removal of such envelopes from the counting area once they have been opened and voting papers removed for counting;

(i) locking and securing the counting room during the period during which votes are to be counted whenever counting staff are not actually at work;

(/) ensuring that counting staff are not disturbed or distracted by any person with a particular interest in the result of the ballot during the process of the count;

(k) storage of voting papers, once counted, under secure conditions (that is, so that they cannot be tampered with in any way are available for checking if necessary) for at least 6 months after the ballot;

(/) if ballot boxes (or equivalent receptacles) are to be transferred from a voting location to any other place before

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Employee Relations Act 1992 Act No. 83/1992 Sch.2


votes are counted, this must be done in such a way as to avoid the possibility of interference.

34. The group must consider the appointment of one or more independent scrutineers and seek advice from them about suitable arrangements to meet the requirements for accurate and fair counting of votes. The group must also consider putting the counting exercise as a whole into the hands of an independent scrutineer.

35. A group must, as soon as reasonably practicable after holding an industrial action ballot, take steps to inform all those properly entitled to vote of the numbers of—

(a) votes cast in the ballot;

(b) individuals answering "Yes" to the required question (or questions);

(c) individuals answering "No" to the required question (or questions); and

(d) spoiled ballot papers.

If separate place of work ballots are required these details must be notified separately for each such place of work to those entitled to vote at that place.

36. To help ensure that its result can be notified as required, the group must consider, for example—

(a) designating a "Returning Officer" for the centralised count of votes cast in the ballot (or separate "Returning Officers" for counts conducted at different locations) to whom the results will be notified in the form required before their announcement;

(b) organising the counting of votes in such a way that the information required to satisfy the relevant statutory requirements can be easily obtained after the counting process is completed;

(c) utilising its own journals, local communications, newssheets, company or trade union branch noticeboards to publicise the details of the ballot result.

37. The group must not authorise or endorse industrial action without first taking steps to satisfy the statutory requirements for notifying details of the result of a ballot.

38. The group must respond positively (and in writing when so requested) to a request from any employer whose employees participated in the industrial action ballot, or any employers' association representing those employers, for such details of the

922805—20 1553


SCHEDULE 2—continued ballot result as the group is required to provide to those entitled to vote in the ballot.

39. The group must consider all options other than authorising or endorsing industrial action as a means of resolving the dispute or potential dispute which led to the ballot being held. In considering what action might be taken the individual, individuals or body who would authorise or endorse the industrial action on behalf of the group must take into account, for example—

(a) the serious consequences (such as risk of dismissal from employment) which may follow for members if they embark on industrial action on the group's instruction or advice;

(b) any changes in circumstances, such as developments in negotiations or in the offer made by an employer, since the time when the ballot was taken;

(c) the willingness of the employer (or employers) concerned to enter into further negotiations or discussions;

(d) the possibilities of using the services of the Employee Relations Commission;

(e) the size of the majority and the number of those voting in the ballot relative to those given entitlement to vote.

40. Any ballot authorising industrial action may only authorise industrial action for up to 5 days within a period of 28 days from the final, date for the return of ballot papers.


APPOINTMENT AND CONDITIONS OF EMPLOYMENT OF MEMBERS OF THE COMMISSION

1. Qualifications needed for appointment

(1) The Governor in Council may only appoint a person as the President if—

(a) the person has been enrolled as, and has practised as, a legal practitioner of the High Court, or the Supreme Court of a State or Territory, for at least 5 years; and

(b) the person is, in the opinion of the Governor in Council, a suitable person to be appointed as President because of his or her skills and experience in the field of employee relations.

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(2) The Governor in Council may only appoint a person as a Deputy President if—

(a) the person—

(i) has been enrolled as a legal practitioner of the High Court, or the Supreme Court of a State or Territory, for at least 5 years; or

(ii) has had experience at a high level in industry or commerce, or in the service of an industrial association, a government or a government authority; and

(p) the person is, in the opinion of the Governor in Council, a suitable person to be appointed as a Deputy President because of his or her skills and experience in the field of employee relations.

(3) The Governor in Council may only appoint a person as a Commissioner if the person has, in the opinion of the Governor in Council, appropriate skills and experience in the field of employee relations.

2. Seniority of members

(1) The members of the Commission have seniority in the following order of precedence—

(a) the President;

(b) the Deputy Presidents, in the order in which their appointments took effect;

(c) the Commissioners, in the order in which their appointments took effect.

(2) If an appointment took effect on the same day as another appointment, seniority is to be determined according to the order of precedence assigned to the appointments by the Governor in Council, either when making the appointments, or at any later time.

3. Dual Federal and State appointments

(1) A person (including the President) may hold office as a member of both the Commission and the Federal Commission.

(2) If a person is a member of both Commissions, the Presidents of both Commissions are to determine the person's duties by agreement between them from time to time.

4. Tenure of members

(1) A member of the Commission holds office until he or she—

1555


SCHEDULE 3—continued (a) reaches 65 years of age; or

(b) is removed from office by the Governor in Council under clause 7.

(2) A member of the Commission may be appointed for a fixed term.

(3) If this is done, the member holds office until—

(a) the term ends; or

(b) he or she reaches 65 years of age—

whichever happens first.

5. Members may work on a part-time basis

(1) A member of the Commission may, with the consent of the President, work on a part-time basis.

(2) The President may make his or her consent subject to conditions.

(3) The President, and any person who also holds office as a member of the Federal Commission, may not work on a part-time basis.

6. Resignation of member

A member of the Commission may resign by causing a signed letter of resignation to be delivered to the Governor in Council.

7. Removal of member from office

The Governor in Council must remove a member of the Commission from office if—

(a) asked to do so by both Houses of Parliament in the same session; or

(b) the member becomes bankrupt; or

(c) the member is convicted of an indictable offence or of an offence which, if committed in Victoria, would be an indictable offence; or

(d) the member engages in paid employment contrary to clause 8.

8. Outside employment of member

A member of the Commission (including a part-time member) must not engage in any paid employment outside of the duties of the member's office without the consent of the Minister.

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Employee Relations Act 1992

Act No. 8311992 Sch .3


9. Salary and allowances of members

(1) The President is to receive the same salary and allowances (if any) as a puisne judge of the Supreme Court receives.

(2) Deputy Presidents and Commissioners are to receive the salary and allowances (if any) that are fixed from time to time by the Governor in Council.

(3) A Deputy President or Commissioner working on a part-time basis is to be paid on a pro rata basis.

(4) A member of the Commission who was a member of the Federal Commission at the time of his or her appointment to the Commission—

(a) is not.to receive any salary as a member of the Commission, unless the Governor in Council decides otherwise; and

(b) is to receive the travelling allowance fixed by the Governor in Council from time to time in respect of any travelling done by the member in the course of his or her duties of office under this Act.

10. Application of State Superannuation Act 1988

A member of the Commission who was an officer within the meaning of the State Superannuation Act 1988 at the time of his or her appointment to the Commission continues, subject to that Act, to be an officer within the meaning of that Act.

11. Leave of absence of members

The President may approve leave of absence for the members of the Commission.

12. Members must stay informed

Each member of the Commission must keep acquainted with economics and employment issues.

13. Oath of office

Before proceeding to discharge the duties of office, a member of the Commission must take an oath of office in the form and manner set out in the regulations.

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Employee Relations Act 1992 Sch.4 Act No. 83/1992

SCHEDULE 3—continued 14. Acting President

(1) The Governor in Council may appoint a Deputy President'to act as the President during any period when—

(a) the office of President is vacant; or

(b) the President is absent from duty or is, for any reason, unable to carry out the duties of the office.

(2) To be eligible for appointment the Deputy President—

(a) must be qualified to be appointed as the President; and

(b) must not be an acting Deputy President.

15. Acting Members

The Governor in Council may appoint a person to act as a Deputy President or Commissioner for any specified period if—

(a) the person is qualified to be appointed as a Deputy President or Commissioner (as the case may be); and

(b) the Governor in Council is satisfied that the appointment is necessary to enable the Commission to perform its functions effectively.


THE CHIEF COMMISSION ADMINISTRATION OFFICER

1. Tenure of office

(1) The Chief Commission Administration Officer holds office for the period specified in his or her instrument of appointment or reappointment.

(2) The period specified must not be more than 7 years, and must not extend beyond the date on which the person appointed attains 65 years of age.

(3) The Chief Commission Administration Officer may be reappointed.

2. Resignation

The Chief Commission Administration Officer may resign by causing a signed letter of resignation to be delivered to the Governor in Council.

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3. Removal from office

(1) The Governor in Council must remove the Chief Commission Administration Officer from office if the Chief Commission Administration Officer—

(a) becomes bankrupt; or

(b) is convicted of an indictable offence or of an offence which, if committed in Victoria, would be an indictable offence; or

(c) is absent from duty for 14 consecutive days, or for 28 days in any period of 12 months, without the leave of the President; or

(d) engages in paid employment contrary to clause 5; or

(e) fails, without reasonable excuse, to comply with clause 6.

(2) The Governor in Council may remove the Chief Commission Administration Officer from office if, in the opinion of the Governor in Council, the Chief Commission Administration Officer—

(a) is unable to perform the duties of office because of physical or mental illness; or

(b) is incompetent; or

(c) has misbehaved.

(3) If, immediately before being appointed, the Chief Commission Administration Officer was the Industrial Registrar, or a Deputy Industrial Registrar, of the Federal Commission, the Governor in Council may remove the Chief Commission Administration Officer from office without cause.

4. Salary, allowances and other conditions

(1) The Chief Commission Administration Officer is to receive the salary and allowances (if any) that are fixed from time to time by the Governor in Council.

(2) The Governor in Council may also, from time to time, fix conditions of employment in relation to matters not fixed by this Act on which the Chief Commission Administration Officer is to hold office.

5. Outside employment

The Chief Commission Administration Officer must not engage in any paid employment outside of the duties of his or her office without the consent of the Minister.

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Act No. 83/1992

SCHEDULE 4—continued 6. Disclosure of interest

The Chief Commission Administration Officer must advise the Minister in writing of any direct or indirect pecuniary interests that the Chief Commission Administration Officer has, or acquires, in any business or in any company carrying on any business. He or she must do this within 14 days of being appointed or acquiring the interest.

7. Leave of absence

The President may approve leave of absence for the Chief Commission Administration Officer.

8. Application of State Superannuation Act 1988

A person who was an officer within the meaning of the State Superannuation Act 1988 at the time of his or her appointment as the Chief Commission Administration Officer continues, subject to that Act, to be an officer within the meaning of that Act.

9. Right to return to public service

(1) A person who was an officer of the public service of Victoria at the time of his or her appointment as the Chief Commission Administration Officer may return to the public service on ceasing to be the Chief Commission Administration Officer at the classification (or the nearest equivalent) held by him or her at that time.

(2) This does not apply if the person is 65 years of age or older.

10. Acting Chief Commission Administration Officer

The Minister may appoint a person to act as the Chief Commission Administration Officer during any period when—

(a) the office of Chief Commission Administration Officer is vacant; or

(b) the Chief Commission Administration Officer is absent from duty or is, for any reason, unable to carry out the duties of the office.

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PROVISIONS DEEMED TO BE INCORPORATED INTO AWARDS UNDER SECTION 172 (2)

1. Stand-down of employees

An employer may deduct payment for any part of a day during which an employee cannot usefully be employed because of any strike, breakdown of machinery or any stoppage of work for any cause for which the employer cannot reasonably be held responsible. This does not break the continuity of employment of the employee for the purpose of any entitlements.

2. Settlement of disputes

If any dispute or grievance arises it must be dealt with in the following manner—

(a) the matter must first be discussed by the aggrieved employee with his or her immediate supervisor;

(b) if not settled, the employee may request a representative to be present and the matter must be discussed with the immediate supervisor and his or her superior or another representative of the employer appointed for the purpose of this procedure;

(c) if the matter is not resolved, it must be submitted to the Employee Relations Commission or an agreed mediator for the purposes of conciliation and mediation;

(d) the parties may agree to submit the dispute to arbitration and, if so agreed, the decision must be accepted by the parties subject to any appeal available;

(e) until the matter is determined work must continue at the direction of the employer. No party shall be prejudiced as to the final settlement by the continuance of work in accordance with this procedure;

(/) the parties must co-operate to ensure that these procedures are carried out expeditiously.

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SCHEDULE 6 Section 184

CONSEQUENTIAL AMENDMENTS

1. Accident Compensation Act 1985

In section 154 (2), for "Industrial Relations Commission" substitute "Employee Relations Commission".

2. Appeal Costs Act 1964

2.1 In section 13 (4), for "Industrial Relations Commission in Court session" substitute "Employee Relations Commission".

2.2 In section 18 (1), for paragraph (a) substitute—

"(a) any civil or criminal proceedings are rendered abortive by the death or illness of the judge or magistrate before whom the proceedings were had or by disagreement on the part of the jury where the proceedings are with a jury;".

3. BLF (De-recognition) Act 1985

3.1 In section 3— (a) the definition of "Board" is repealed. (b) for the definition of "Commission" substitute—

' "Chief Commission Administration Officer" means the Chief Commission Administration Officer of the Commission;

"Commission" means the Employee Relations Commission of Victoria established under the Employee Relations Act 1992 and includes the Commission in Full Session and a Commissioner sitting alone;';

(c) in the definition of "Commonwealth Act", for "Conciliation and Arbitration Act 1904" substitute "Industrial Relations Act 1988";

(d) the definition of "Registrar" is repealed.

3.2 In section 6—

(a) for "Industrial Relations Act 1979" (wherever occurring) substitute "Employee Relations Act 1992";

(b) in sub-section (1)— (i) in paragraph (a), omit "of a Board or";

(ii) paragraph (c) is repealed; (c) in sub-section (2)—

(i) in paragraphs (a) and (b), omit "or a Board";

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Employee Relations Act 1992 Act No. 83/1992 Sch.6


(ii) paragraphs (c), (d) and (e) are repealed; (iii) in paragraph (g), for "registrar" substitute "Chief

Commission Administration Officer";

(iv) in paragraph (h), omit "of a Board or";

(v) paragraph (/) is repealed.

4. Construction Industry Long Service Leave Act 1983

4.1 In section 3—

(a) in sub-section (1)— (i) in the definition of "Award", for paragraph (a)

substitute—

"(a) an award or an employment agreement under the Employee Relations Act 1992; or";

(ii) after the definition of "electrical trades work" insert—

' "Employee Relations Commission" means the Employee Relations Commission of Victoria established under the Employee Relations Act 1992;';

(iii) the definition of "Industrial Relations Commission" is repealed;

(fo) sub-section (2) is repealed.

4.2 In section 30A— (a) in sub-section (1), for "Industrial Relations Commission in

Court session" substitute "Employee Relations Commission";

(b) in sub-section (2), for "Industrial Relations Commission in Court session" substitute "Employee Relations Commission";

(c) in sub-section (5), for "Registrar of the Commission" substitute "Chief Commission Administration Officer".

4.3 In section 32—

(a) in sub-section (6), for "Industrial Relations Commission in Court session" substitute "Employee Relations Commission";

(b) in sub-section (7), for "Industrial Relations Commission in Court session" substitute "Employee Relations Commission".

4.4 Section 69 (2) is repealed.


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Act No. 8311992

SCHEDULE 6—-continued (a) omit "or the Metropolitan Industrial Court (as the case may

be)";

(b) for "Industrial Relations Commission in Court session" substitute "Employee Relations Commission".

4.6 In section 76 (10), for "Industrial Relations Commission in Court session" substitute "Employee Relations Commission".

4.7 In section 78, for "Industrial Relations Commission in Court session" (wherever occurring) substitute "Employee Relations Commission".


(a) in sub-section (1), for "Industrial Relations Commission in Court session" substitute "Employee Relations Commission";

(b) in sub-section (2)—

(i) for "Industrial Relations Act 1979" substitute "Employee Relations Act 1992";

(ii) for "Industrial Relations Commission in Court session" (wherever occurring) substitute "Employee Relations Commission";

(c) in sub-section (3), for "Industrial Relations Commission in Court session" (wherever occurring) substitute "Employee Relations Commission".

5. Country Fire Authority Act 1958

5.1 In section 18, for "Industrial Relations Act 1979" (wherever occurring) substitute "Employee Relations Act 1992".

5.2 In section 18, for "award or agreement" (wherever occurring) substitute "award or employment agreement".

6. Education Act 1958

6.1 In section 64L, for the definition of "law" substitute—

' "law" includes an award or employment agreement under the Employee Relations Act 1992;'.

6.2 In section 64Q (3), for "industrial agreement" substitute "employment agreement".

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Employee Relations Act 1992 Act No. 8311992 Sch


7. Equal Opportunity Act 1984

In section 21 (4) (i) (iii), for "section 39 (1) of the Industrial Relations Act 1979" substitute "section 32 (2) of the Employee Relations Act 1992".

8. Fundraising Appeals Act 1984

In section 6 (1)—

(a) in paragraph (g), for "Industrial Relations Act 1979" substitute "Employee Relations Act 1992";

(b) in paragraph (h), for "section 132 of the Conciliation and Arbitration Act 1904" substitute "the Industrial Relations Act 1988".

9. Health Services (Conciliation and Review) Act 1987

In section 3 (1), in the definition of "Industrial Tribunal"—

(a) for paragraphs (a) and (b) substitute—

"(a) The Australian Industrial Relations Commission;

(b) The Employee Relations Commission of Victoria;";

(b) paragraphs (d) and (e) are repealed.

10. Intellectually Disabled Persons' Services Act 1986

In section 66 (2), for "Hospitals Remuneration Tribunal made under section 6 of the Hospitals Remuneration Tribunal Act 1978" substitute "Employee Relations Commission made under the Employee Relations Act 1992".

11. Labour and Industry Act 1958

In section 3 (1)—

(a) for the definition of "Award" substitute—

' "award" means an award of the Employee Relations Commission of Victoria established under the Employee Relations Act 1992;';

(b) for the definition of "Commission" substitute—

'"Commission" means the Employee Relations Commission of Victoria established under the Employee Relations Act 1992;';

(c) the definition of "Commission in Court session" is repealed.

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Act No. 8311992

SCHEDULE 6—continued 12. Market Court Act 1978

In section 4—

(a) in sub-section (4A) (b), for "Industrial Relations Commission of Victoria established under the Industrial Relations Act 1979" substitute "Employee Relations Commission of Victoria established under the Employee Relations Act 1992";

(b) in sub-section (6) (b), for "Industrial Relations Commission of Victoria established under the Industrial Relations Act 1979" substitute "Employee Relations Commission of Victoria established under the Employee Relations Act 1992".

13. Mental Health Act 1986

In section 95 (2), for "Hospitals Remuneration Tribunal made under section 6 of the Hospitals Remuneration Tribunal Act 1978" substitute "Employee Relations Commission made under the Employee Relations Act 1992".

14. Metropolitan Fire Brigades Act 1958

14.1 In section 33A—

(a) in sub-section (1), for "Industrial Relations Act 1979" substitute "Employee Relations Act 1992";

(b) in sub-section (2)—

(i) for "agreement" substitute "employment agreement";

(ii) for "Industrial Relations Act 1979" substitute "Employee Relations Act 1992".

14.2 In section 34 (1) (ca)—

(a) for "agreement" substitute "employment agreement";

(b) for "Industrial Relations Act 1979" substitute "Employee Relations Act 1992".

14.3 In section 85, for "Industrial Relations Commission of Victoria" substitute "Employee Relations Commission of Victoria".

15. Occupational Health and Safety Act 1985


(a) after the definition of "employee" insert—

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' "Employee Relations Commission" means the Employee Relations Commission established under the Employee Relations Act 1992;';

(b) the definition of "Industrial Relations Commission" is repealed;

(c) in the definition of "trade union" for "Part V of the Industrial Relations Act 1979" substitute "Part 12 of the Employee Relations Act 1992".

15.2 In section 26 (7), for "Industrial Relations Commission" substitute "Employee Relations Commission".



15.5 In section 36, for "Industrial Relations Commission" (wherever occurring) substitute "Employee Relations Commission".


15.7 In section 46, for "Industrial Relations Commission" (wherever occurring) substitute "Employee Relations Commission".

16. Pharmacists Act 1974

Sections 21 (5) and 37 (x) are repealed.

17. Police Regulation Act 1958

17.1 In section 68A—

(a) for "Industrial Relations Act 1979" (wherever occurring) substitute "Employee Relations Act 1992";

(b) for "Industrial Relations Commission" (wherever occurring) substitute "Employee Relations Commission".


(a) in sub-section (2), for "deputy president of the Industrial Relations Commission" substitute "person";

(b) in sub-section (5), for "a deputy president of the Industrial Relations Commission (as the case requires)" substitute "another person";

(c) in sub-section (7), for "deputy president of the Industrial Relations Commission" substitute "person other than a judge of the County Court".

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SCHEDULE 6—continued 18. Post-Secondary Education Act 1978


(a) for the definition of "award" substitute—

'"award" means an award of the Employee Relations Commission under the Employee Relations Act 1992;

"Employee Relations Commission" means the Employee Relations Commission of Victoria established under the Employee Relations Act 1992;';

(b) in the definition of "industrial association of employees", for "Part V of the Industrial Relations Act 1979" substitute "Part 12 of the Employee Relations Act 1992'?;

(c) the definition of "Industrial Relations Commission" is repealed.

18.2 In section 119A, for "Industrial Relations Act 1979, the Industrial Relations Commission arid a Conciliation and Arbitration Board established under that Act do" substitute "Employee Relations Act 1992, the Employee Relations Commission does".

19. Preschool Teachers and Assistants (Leave) Act 1984

19.1 In section 3 (1), in the definition of "Award" for "Industrial Relations Act 1979" substitute "Employee Relations Act 1992".

19.2 In section 4 (1), for paragraph (b) substitute—

"(b) under Division 6 of Part 5 of the Employee Relations Act 1992 (except section 56)".

19.3 In section 4 (2) (b), for "as a worker to whom Part VII of the Industrial Relations Act 1979" substitute "as an employee to whom Division 6 of Part 5 of the Employee Relations Act 1992".


(a) in paragraph (c), omit "while a worker within the meaning of the Industrial Relations Act 1979";

(b) in paragraph (d), for "transmission to which sub-section (5B) of section 65 (1) of the Industrial Relations Act 1979" substitute "transfer to which section 60 (6) of the Employee Relations Act 1992".

20. Shop Trading Act 1987

Section 25B is repealed.

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21. Teaching Service Act 1981


(a) for the definition of "Award" substitute—

' "award" means an award of the Employee Relations Commission under the Employee Relations Act 1992;';

(b) for the definition of "Government office" insert—

' "Employee Relations Commission" means the Employee Relations Commission of Victoria established under the Employee Relations Act 1992;';

(c) in the definition of "Industrial association of employees" for "Part V of the Industrial Relations Act 1979" substitute "Part 12 of the Employee Relations Act 1992";

(d) the definition of "Industrial Relations Commission" is repealed.

21.2 In section 15, for "Industrial Relations Act 1979, the Industrial Relations Commission" substitute "Employee Relations Act 1992, the Employee Relations Commission".

21.3 In sections 60 (3A), 61A (2), 64 (5) and 66 (10), for "Industrial Relations Commission" substitute "Employee Relations Commission".

22. Vocational Education and Training Act 1990

22.1 In section 3, for the definition of "Award" substitute—

' "award" means an award of the Employee Relations Commission of Victoria under the Employee Relations Act 1992'.

22.2 Section 64 (2) is repealed. 22.3 Section 65 is repealed.

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Employee Relations Act 1992 Notes Act No. 83/1992

NOTES

1. Minister's second reading speech—

Legislative Assembly: 29 October 1992

Legislative Council: 6 November 1992

2. The long title for the Bill for this Act was "A Bill to make fresh provision with respect to the law relating to employee relations in Victoria, to repeal the Industrial Relations Act 1979 and the Hospitals Remuneration Tribunal Act 1978, to amend the Trade Unions Act 1958, the House Contracts Guarantee Act 1987 and the Magistrates' Court Act 1989 and for other purposes.".

3. Constitution Act 1975:

Section 85 (5) statement: Legislative Assembly: 29 October 1992


Absolute majorities: Legislative Assembly: 5 November 1992; 12 November 1992


4. Section headings appear in bold italics and are not part of the Act. (See Interpretation of Legislation Act 1984.)

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employee relations act 1992 · employee relations act 1992 [assented to 24 november 1992] the...

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