VICTORIA Industrial Relations Act 1979 Industrial Relations Act 1979 ... to any of the provisions of...

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ANNO VICESIMO OCTAVO ELIZABETHAE SECUNDAE REGINAE

VICTORIA

Industrial Relations Act 1979

No. 9365

An Act to constitute an Industrial Relations Commission of Victoria, to make Provision for the Constitution of

Conciliation and Arbitration Boards, to make Provision with respect to the Recognition of

Industrial Associations, to make Provision with respect to certain Conditions of Employment, to amend the

Labour and Industry Act 1958 and the Industrial Training Act 1975 and the Building Industry Long Service Leave Act 1975 and for other purposes.

[Assented to 20 December 1979]

BE IT ENACTED by the Queen's Most Excellent Majesty by and with the advice and consent of the Legislative Council and the Legislative Assembly of Victoria in this present Parliament assembled and by the authority of the same as follows (that is to say):

PART L—INTRODUCTION

Short title. 1, (1) This Act may be cited as the Industrial Relations Act 1979.

Commence- (2) This Act shall comc into operation on a day to be fixed "*"*• by proclamation of the Governor in Council published in the

Government Gazette.

(3) This

1979 Industrial Relations No. 9365 701

(3) This Act is divided into Parts as follows: Part I.—Introductory ss. 1-3. Part II.—Industrial Relations Commission of Victoria

ss. 4-23. Part III.—Conciliation and Arbitration Boards ss. 24-46. Part IV.—Industrial Agreements ss. 47-52. Part V.—Recognized Associations ss. 53-56. Part VI.—Annual Holidays ss. 57-63. Part VII.—Long Service Leave ss. 64-78. Part VIII.—Other Conditions ss. 79-86. Part IX.—General and Supplementary ss. 87-89. Part X.—Legal Proceedings ss. 90-97. Part XL—Offences and Penalties ss. 98-105.

Division Table.

2. (1) The Act mentioned in the Schedule to the extent Repeal, therein expressed to be repealed is hereby repealed accordingly.

(2) Except as in this Act expressly or by necessary implication sawngj. provided—

(a) all persons things and circumstances appointed or created by or under the repealed provisions or existing under any of such provisions immediately before the commencement of this Act, shall imder and subject to this Act continue to have the same status operation and effect as they respectively would have had if that Act had not been so repealed;

(b) in particular and without affecting the generality of paragraph (a) the repeal shall not disturb the continuity of status operation or effect of any proclamation regulation by-law order rule application determination declaration petition direction registration licence permit certificate exemption approval nomination appointment notice fee transfer suspension record proceeding appeal liabiUty or right made issued granted given presented passed fixed accrued incurred or acquired or existing or continuing by or under the repealed provisions before the commencement of this Act.

3. (1) In this Act unless inconsistent with the context or interpreuuon. subject-matter—

"Award" means award of a Board or of the Commission. -Award.-"Board" means a Conciliation and Arbitration Board "Board."

constituted under this Act. "Commission"

702 1979 Industrial Relations No. 9365

•'Commission/

"Department.*

"Deputy-President."

"industrial association.'

"Industrial dispute."

"President."

"Registered agreement."

"Registrar."

"Secretary."

"Shop."

"Trade."

Construction of references.

"Commission" means the Industrial Relations Commission of Victoria established under this Act.

"Department" means Department' of Labour and Industry established under Part II. of the Labour and Industry Act 1958.

"Deputy-President" means the Deputy-President of the Commission and includes a person appointed to act as Deputy-President of the Commission in the absence of the Deputy-President.

"Industrial association" means an association of employers or employes and includes a group of associations of employers or employes.

"Industrial dispute" means a dispute arising between an employer and one or more of his employes, or between an association of employes and one or more employers or associations of employers, or between two or more associations of employers or two or more associations of employes, and includes a threatened or impending or probable dispute.

"President" means the President of the Commission and includes the Deputy-President acting as President of the Commission in the absence of the President.

"Registered agreement" means an agreement registered under Part IV.

"Registrar" means registrar of the Commission appointed under Part II.

"Secretary" means secretary to the Department.

"Shop" means any building or place or portion of a building or place or any stall tent vehicle or pack in which goods are exposed or offered for sale by retail, and includes any rooms of hairdressers or barbers, boot repairers' shops, the rooms of dyers and clothes cleaners commonly known as dyers' shops and clothes cleaners' shops and of agents of any such dyer or clothes cleaner, lending libraries, undertakers' establishments and the rooms of tailors or photographers.

"Trade" includes process trade business and occupation.

(2) Unless otherwise expressly provided in this Act any reference in this Act to the "Commission" shall be read and construed as a reference to the Commission in full session.

(3) Unless the context otherwise requires any reference occurring in any Act or in any Order in Council rule regulation by-law or

other


other law or in any determination agreement award deed or instrument or any other document whatsoever—

(a) to a "Wages Board" or "Board" shall be deemed and taken to refer to and mean a Conciliation and Arbitration Board within the meaning of this Act;

{b) to a "determination" shall be deemed and taken to refer to and mean an award within the meaning of this Act;

(c) to any of the provisions of the Labour and Industry Act 1958 repealed by this Act or to the provisions of any corresponding previous enactment shall be deemed and taken to refer to and mean the corresponding provisions of this Act;

{d) to a "chairman" shall be deemed and taken to refer to and mean the chairman of a Board within the meaning of this Act.

(4) This Act shall bind the Crown in right of the State of Victoria.

PART II.—INDUSTRIAL RELATIONS COMMISSION OF VICTORIA

4. There shall be an Industrial Relations Commission of Victoria Establishment

which shall consist of the following members— ReilSms'""' , ^ •-. . . . C o m m i s s i o n o f

(a) a President; victoria. (6) two members appointed as Commissioners; Commission.

{c) SO many members, being chairmen of Boards, as may be necessary for the administration of this Act.

5. (1) The Governor in Council shall appoint a person who i s President.

qualified to be appointed a Judge of the Supreme Court to be President of the Commission.

(2) Subject to this Act the President is entitled to hold Term of office office until he attains the age of 65 years. ° '"' '"*"

(3) The office of President shall become vacant if— (a) he becomes incapable of performing his duties; {b) he becomes bankrupt, applies to take the benefit of

any law for the relief of bankrupt or insolvent debtors, compounds with his creditors or makes an assignment of his remuneration for their benefit;

(c) except on leave granted by the Minister, he absents himself from duty for 14 consecutive days or for 28 days in any period of 12 months;

{d) he resigns his office by writing under his hand addressed to the Governor in Council; or

(e) he is removed from office. (4) The


Removal of President

Salary ot President.

Conference of members of Commission.

Annual report.

Report to be laid before both Houses of Parliament.

(4) The Governor in Council may at any time remove the President from office upon an address praying for his removal being presented to the Governor by both Houses of Parliament.

(5) The President shall be entitled to such salary and allowances as are for the time being payable to a puisne judge of the Supreme Court.

(6) Whenever the President considers it desirable to do so but not less frequently than once in each year the President shall summon a conference of all members of the Commission to discuss matters relating to the operation of this Act and, in particular, means of ensuring expedition in the settlement of industrial disputes.

(7) The President shall, once in each year, furnish to the Minister a report on the operation of this Act.

(8) Within fourteen days after receiving a report furnished under sub-section (7) or if Parliament is not then sitting within fourteen days after the next meeting of Parliament the Minister shall cause the report to be laid before both Houses of Parliament.

Deputy-President.

Term of office.

Removal of Deputy-President.

Salary of Deputy-President.

6. (1) The Governor in Council shall appoint a person who is qualified to be appointed a judge of the County Court of Victoria to be Deputy-President of the Commission.

(2) Subject to this Act the Deputy-President is entitled to hold ofiice until he attains the age of 65 years.

(3) The office of Deputy-President shall become vacant if— (a) he becomes incapable of performing his duties; (b) he becomes bankrupt, applies to take the benefit of

any law for the relief of bankrupt or insolvent debtors, compounds with his creditors or makes an assignment of his remuneration for their benefit;

(c) he resigns his office by writing under his hand addressed to the Governor in Council; or

(d) he is removed from office.

(4) The Governor in Council may at any time remove or suspend the Deputy-President from office.

(5) The Deputy-President shall be entitled to such fees expenses and allowances as are for the time being prescribed by regulations made under this Act.

Members other than the President.

7. (1) The Governor in Council shall appoint two persons other than the President to be members of the Commission and to be known as Commissioners.

(2) The


(2) The Governor in Council shall not appoint as a member of the Commission any person who has not had extensive experience of the conduct of industrial relations.

(3) Subject to this Act a member of the Commission other than the President is entitled to hold office until he attains the age of 65 years.

(4) The office of a member of the Commission other than the President shall become vacant if—

(a) (b)

(c)

id)

Term of office.

Removal of members other than the President.

Salary.

he becomes incapable of performing his duties; he becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his creditors or makes an assignment of his remuneration for their benefit; except on leave granted by the Minister he absents himself from duty for 14 consecutive days or for 28 days in any period of 12 months; he resigns his office by writing under his hand addressed to the Governor in Council; or

(e) he is removed from office. (5) The Governor in Council may at any time remove or suspend

from office a member of the Commission other than the President.

(6) A member of the Commission other than the President shall be entitled to such salary, expenses and allowances as are for the time being prescribed by regulations made under this Act.

(7) If any person was immediately before his appointment as Commissioner an officer within the meaning of the Superannuation Act 1958 or any corresponding previous enactment he shall subject to that Act continue to be an officer within the meaning of that Act.

8. (1) If the President is, or is expected to be, absent from duty the Deputy-President shall act as President.

(2) If the Deputy-President is absent from duty the Governor in Council may appoint some person who is qualified to be appointed Deputy-President to act as Deputy-President during the absence of the Deputy-President.

(3) If a member of the Commission other than the President is absent from duty the Governor in Council may appoint some person who is qualified to be appointed a member to act as a member during the absence of the first-mentioned member.

(4) The provisions of this section shall not prevent the exercise of any power or function by the President, Deputy-President or member (as the case requires) whilst some other person is acting or has been appointed to act in his place.

9. (1) Subject to the Public Service Act 1974 there shall be officers, appointed a registrar of the Commission and such other officers as are necessary for the purposes of this Act.

(2) The

Absence of President,

Absence of Deputy-President.

Absence of member.

1 1 4 5 0 / 8 0 - 4 5


(2) The registrar shall have and may exercise such powers and shall perform such duties as are prescribed by or under this Act.

Exercise of powers of Commission.

10. Subject to this Act the powers and duties of the Commission may be exercised or performed by—

(a) the President sitting alone (hereafter in this Act referred to as "the Commission in Court session");

{b) the President and both Commissioners sitting together (hereafter in this Act referred to as "the Commission in full session"); or one Commissioner sitting alone.

Powers of Commission full session.

in

Power to President to direct certain matters to be heard before a Commissioner sitting alone.

(c)

11. (1) The Commission in full session may hear and determine—

(a) any matter not expressly assigned to the Commission in Court session;

{b) any application for the constitution or abolition of a Board;

(c) any application for the jurisdiction of a Board to be increased or reduced;

(d) any application for the interpretation of the provisions of an award or a registered agreement;

(e) any industrial matter referred to it under this Act by— (i) the Minister;

(ii) a Board; or (iii) the chairman of a Board;

( /) any appeal under this Act against an award made by a Board;

{g) any appeal under this Act against a decision of the registrar to recognize or refuse to recognize an industrial association;

Qi) any matter relating to the recognition of an industrial association that is referred to it by the registrar;

{j) any application to revoke the registration of an industrial agreement;

{k) any other matter which it is by this or any other Act authorized or required to hear and determine.

(2) Where it appears to the President that any industrial matter referred to the Commission in full session under paragraph (e) in sub-section (I) may properly be heard and determined by a Commissioner sitting alone he may give directions accordingly and thereupon the matter may be heard and determined by a Commissioner sitting alone.

12. (1) The


12. (1) The determine—

ia)

Commission in Court session may hear and Powers of Commission in Court session.

any appeal against a conviction by a Magistrates' Court for an offence against this Act, the Labour and Industry Act 1958 or the Industrial Training Act 1975;

{b) any application by an industrial association for a direction requiring the chairman of a Board to convene a meeting of the Board;

(c) any appeal against a decision of the secretary under section 53 of the Labour and Industry Act 1958—

(i) to refuse to register; or (ii) to cancel the registration—

of any factory or shop or market site; or (d) any other matter which it is by this or any other Act

authorized or required to hear and determine. (2) A Commissioner sitting alone may hear and determine—

(fl) at the direction of the President, any industrial dispute or any matter referred to the Commission under section 11 (1) paragraph (e);

(b) any other matter which he is by this or any other Act authorized or required to hear and determine.

(3) Any order or determination made by a Commissioner sitting alone shall be subject to appeal to the President.

13. Unless otherwise directed by the President for a special Pro ^ iDs*'° reason all proceedings before the Commission shall be in public.

14. (1) Any person or association appearing before the Commission may be represented by an employe of that person or a member or officer of that association or an association of which that person is a member but no person or association may be represented before the Commission by a barrister, by a solicitor, or by an agent appearing for fee or reward without the consent of the Commission or the other party or parties to the proceedings.

(2) In this section "Commission" means the Commission in full session or a Commissioner sitting alone.

(3) Nothing in this section shall prevent any person appearing on his own behalf or by an agent who does not appear for hire or reward.

be public.

Appearance by counsel, &c.

15. (1) The Commission shall in every case be guided by the Commission to

real justice of the matter without regard to legal forms and rnSmaiiy. solemnities.

(2) The Commission shall direct itself by the best evidence it can procure or which is laid before it whether or not it is evidence such- as the law would require or admit in other cases and if the

Commission 11450/80-46


Functions of members other than the President.

Commission considers that any further evidence or information which would assist it could be obtained, the Commission shall intimate to the persons appearing before him or them what further evidence or information the Commission desires.

(3) The Commissioners shall take no part in determining any question of law arising for decision by the Commission.

(4) The Commissioners may assist the President in any way he may require in the carrying out of the functions of the Commission.

Appeal by associations to Commission in full session.

Power to Minister to intervene in appeal.

Award appealed from not operative until appeal determined.

Leave (o appeal.

Commission to have powers of Board.

Operation of awards.

Commission to consider eflect of award on trade. &c. No. 6283 s. 45 (3).

16. (1) A majority of the representatives of employers or employes on any Board or any industrial association affected by the award of a Board may within fourteen days after the award is made appeal to the Commission in full session against the award or any part of it.

(2) The Minister may on behalf of the State of Victoria give notice in writing to the registrar of intention to intervene in the public interest in any appeal brought under this section and may appear by a barrister, by a solicitor or by an agent on the appeal.

(3) When an appeal is brought under this section the award or part of the award appealed against shall be deemed not to have come into operation until the appeal is dealt with by the Commission.

(4) Without in any way derogating from the provisions of sub-section (1) any person may within fourteen days after an award is made by a Board apply to the Commission for leave to appeal against the award or part of it and upon being granted leave to appeal may appeal to the Commission against the award or part.

(5) For the purposes of an appeal brought under this section the Commission shall have and may exercise all or any of the powers conferred upon a Board by this Act and may amend the whole or any part of the award appealed against.

(6) In amending an award appealed against under this section the Commission may provide that its award shall be deemed to have come into operation from a specified day being a day earlier than the day the award was made by the Commission but not earlier than the day fixed by the Board in the award appealed against as the day upon which it should come into effect.

(7) When dealing with any such appeal the Commission shall consider whether the award has had or may have the effect of prejudicing the progress or maintenance of or scope of employment in the trade concerned, and if of opinion that the award has had or may have that effect the Commission shall make such alterations as in its opinion are necessary to remove or prevent that effect and at the same time to secure a living wage to the employes affected.

(8) When dealing with an appeal brought under this section in which the Minister has intervened, the Commission shall consider

whether


whether the award or part of the award appealed against is contrary to the public interest and, without limiting the generality of the foregoing, whether it has had or may have the effect—

(a) of detrimentally affecting the interests, convenience or requirements of the public or any substantial section of the public; or

(b) of restricting reasonable competition in the trade to which the award relates or in any associated trade—

and if it is satisfied that the award is contrary to the public interest or has had or may have any such effect the Commission may in respect of the award exercise all or any of the powers conferred upon it by this section.

(9) For the purposes of an appeal brought under this section the Commission and the President shall have the same powers of summoning, sending for and examining witnesses, documents and books as are conferred by the Evidence Act 1958 upon a Board appointed by the Governor in Council and the Chairman thereof.

(10) No evidence relating to a trade secret or to the profits or financial position of any witness or person appearing before the Commission shall be disclosed or published without the consent of the person entitled to the trade secret or non-disclosure.

(11) Subject to this Act every award of the Commission shall be final and without appeal and shall not, unless otherwise expressly provided for in sub-section (13), be reviewed or altered by a Board without leave of the Commission under sub-section (12).

(12) The Commission may— (a) of its own motion or on the application of the majority of

the representatives of employers or employes on the Board concerned— (i) give leave for an award to be reviewed or altered

by a Board ; or (ii) give leave for part of an award to be reviewed

or altered by a Board; or (b) refuse to give leave until it is satisfied on affidavit that

a prima facie case for review exists. (13) Where the Commission is satisfied that a prima facie case

for review of an award or part of an award exists the Commission may give leave under sub-section (12) paragraph (a), or, instead of giving leave, may direct a re-hearing or re-opening of the matter before the Commission during which the Commission may alter or vary its award.

(14) When a period of twelve months has elapsed from the making by the Commission of an award or from the last revision, alteration or amendment of an award of the Commission the Board concerned may without leave of the Commission review or alter the award.

(15) An

Commission and President to have powers of Boards under Evidence Act 1958.

Non-disclosure or certain information.

Award to be final.

Review of awards.


Revision of awards.

Registrar to cause awards to be printed.

Power to Minister to refer awards to Commission.

Notice of reference.

Reference not to affect operation of award.

Representation by counsel.

Procedure on reference to be as on appeal.

Reference of draft regulations to Commission. No. 6283 s. 45D,

Joinder of Boards.

(15) An award of the Commission that is reviewed, altered-or amended by a Board pursuant to the provisions of this section, whether with or without the leave of the Commission, shall become the award of the Board and the provisions of this Act shall take effect accordingly.

(16) The Commission may revise or alter an award made by it at any time and from time to time on the application of the representatives of employers or employes on the Board concerned.

(17) The registrar shall cause every award of the Commission to be printed and published by the Government Printer.

17. (1) The Minister of his own motion or pursuant to inquiries instituted by the Department or to representations made to him by any association of consumers of goods or any body of persons appearing to the Minister to have a bona fide interest in the operation of any award or part thereof may on behalf of the State of Victoria refer an award or part of an award to the Commission for its consideration or, if the award was made by the Commission, for its re-consideration.

(2) The registrar shall cause notice to be published in the Government Gazette of each reference made under this section and of the time when and the place where the Commission proposes to deal with the reference.

(3) A reference to the Commission under this section shall not suspend or otherwise affect the operation of the award pending its consideration by the Commission.

(4) Notwithstanding the provisions of section 14 (1) when the Commission is dealing with a reference under this section the Minister may appear by a barrister, by a solicitor or by an agent and any person affected by the award or who the Commission considers should be heard may appear personally or, by leave of the Commission, by a barrister, by a solicitor or by an agent.

(5) In dealing with a reference under this section the Commission shall consider all matters which it is required to consider when hearing an appeal under section 16 in which the Minister has intervened and may exercise all or any of the powers which it has when hearing such an appeal.

18. The Minister may refer to the Commission for its advice as to the suitability of any proposals for the fixing of minimum rates of wages or other rates of remuneration any draft regulations prepared by the Industrial Training Commission under section 56 of the Industrial Training Act 1975.

19. (1) Where a matter requires to be determined by more than one Board for the respective trades for which they are appointed and the Minister considers that the matter could more conveniently be determined for those trades or any two or more of them by the Commission and that it would be fair and reasonable for it to be determined by the Commission, the Minister may refer the matter to the Commission for it to determine.

(2) Where


(2) Where the Minister refers a matter to the Commission for it to determine for two or more trades the Minister may at any time request the Commission to determine the matter for one or more additional trades for which the matter remains to be determined.

(3) Where a matter is referred under this section the Commission shall determine the matter and make an award and the award of the Commission shall on a day fixed by the Commission come into force for each trade for which it was made as if it were an award of the Board appointed for that trade.

(4) When a matter is referred to the Commission under this section the registrar shall cause to be published in the Government Gazette and in a daily newspaper circulating throughout Victoria a notification that the reference has been made and of the time when and the place where the Commission proposes to deal with the matter.

(5) A reference of a matter to the Commission under this section shall not suspend or otherwise affect the operation of the award of any Board pending the consideration of the matter by the Commission.

(6) For the purpose of hearing and determining a matter referred to it under this section the Commission shall have and may exercise all or any of the powers (including the power to amend an award of a Board) which it has or may exercise when hearing an appeal under section 16 against an award and the provisions of section 17 (4) shall apply in relation to the hearing of the matter.

(7) The provisions of this Act relating to awards of the Commission shall with such modifications as are necessary apply to and in relation to an award made by the Commission pursuant to the provisions of this section.

(8) In this section "trade" includes branch of a trade and group of trades and "trades" includes branches of trades.

20. (1) At any time within seven days after the expiration of the period within which an appeal may be lodged with the Commission against the award of a Board the Minister may, on behalf of the State of Victoria, request the Commission to review the award of a Board.

(2) A request under sub-section (1) shall be in writing addressed to the registrar and the Minister shall cause a copy of the request to be sent to the chairman of the Board which made the award to be reviewed.

(3) When a request is made under this section the award to be reviewed shall be deemed not to have come into operation.

(4) For the purposes of a review under this section the Commission shall have and may exercise all or any of the powers conferred on a Board by this Act and may amend the whole or any part of the award reviewed.

(5) In

Notice of reference.

Reference not to affect operation of any award.

Commission to have power on reference it may exercise on appeals.

Act to apply to awards made under section.

Interpretation of "trade", &c.

Power to Minister to request review of award.

Commission to have powers of Board on review.


Operation of reviewed awards.

Power to Minister to request declaratory judgment.

Appeal against convictions or orders of Magistrates' Courts.

(5) In amending an award of a Board under this section the Commission may provide that the award shall be deemed to have come into operation from an earlier day being a day not earlier than the day fixed in the award reviewed.

21. (1) Where the Minister is uncertain of the intention or effect of an award he may request the Commission in Court session to consider the matters set out in the request on which clarification is sought and to declare what are the true intent and effect of the award.

(2) Where a person affected by an award is uncertain of its intention or effect he may request the Commission in Court session to consider the matters set out in the request on which clarification is sought and to declare what are the true intent and effect of the award.

(3) In addition to making a declaration under this section the Commission may exercise in respect of the award all the powers which it has under this Part when hearing an appeal against an award.

22. (I) If any person is aggrieved by a conviction or order of or failure or refusal to make an order by a Magistrates' Court (including the Metropolitan Industrial Court) in any proceedings under section 63 or section 96 or in any prosecution for an offence against this Act or the Industrial Training Act 1975 he may, subject to and in accordance with any rules made under this Part, appeal against the conviction or order or failure or refusal to the Commission in Court session which shall have exclusive jurisdiction to deal with the appeal.

(2) Parts IX., X. and XI. of the Magistrates" Courts Act 1971 shall not apply to or with respect to any conviction, order, refusal or failure appealed against under this section.

(3) The decision of the Commission in Court session upon an appeal brought under this section (including any decision as to costs), shall be final and without appeal.

commison to (4) For the purpose of carrying this section into effect and in County Court, addition to any powers otherwise conferred on it the Commission

shall have all the powers and may adopt any procedure of the County Court.

(5) The Commission in Court session may adjourn the hearing of an appeal brought under this section and upon hearing an appeal may confirm or reverse the decision of the Magistrates' Court and may mitigate or increase any penalty imposed by the Magistrates' Court or remit the matter with the opinion of the Commission thereon to the Magistrates' Court for further consideration or make such other order in the matter as the Commission in Court session thinks just and may by order exercise any power which the Magistrates' Court might have exercised and such an order shall have the same effect and may be enforced in the same manner as if made by a Magistrates' Court.

(6) The

Provisions as to appeals, &c. not to apply.


(6) The registrar shall send to the Clerk of the Magistrates' Court against whose conviction or order the appeal was made for entry in his register and also on the conviction or order appealed against a memorandum of the decision on the appeal and where a copy or certificate of the conviction or order is made a copy of the memorandum shall be added thereon and shall be suflficient evidence of the decision in every case where such a copy or certificate would be sufficient evidence of the conviction or order.

(7) A decision by the Commission in Court session on a question of law shall be binding on the Metropolitan Industrial Court and Magistrates' Court in proceedings arising under this Act, the Labour and Industry Act 1958 or the Industrial Training Act 1975.

Registrar to send memorandum as to decision on appeal. No. 6283 8. 47 (6).

Decisions of Commission to be binding on questions of law.

23. (1) The Governor in Council may make rules as to the procedure to be followed before the Commission for carrying the provisions of this Part into effect.

(2) Subject to this Act and the rules (if any) made under this Act the Commission may regulate its own proceedings.

Power to Governor in Council to make rules.

Commission to regulate its own proceedings.

PART III.—CONCILIATION AND ARBITRATION BOARDS

24, (1) The Commission may from time to time by order— (a) appoint one or more Conciliation and Arbitration

Boards for any trade or branch of a trade or group of trades;

(6) direct that a Board may be described for all purposes by some short title ;

(c) define the area (being the whole or any part of Victoria) within which the award of a Board shall have effect and extend or re-define any such area;

{d) abolish any Board; (e) vary the jurisdiction of any Board or, as between any

two or more Boards, adjust their jurisdiction and for that purpose deprive any Board of any or all of its jurisdiction and confer that jurisdiction or any part of that jurisdiction upon any other Board;

( / ) extend the jurisdiction of any Board to any similar trade or branch of a trade or group of trades;

ig) abolish any Board and appoint a new Board or Boards to take its place.

(2) When a Board is deprived of all or any of its jurisdiction or is abolished, any award made before the deprivation or abolition under jurisdiction conferred upon another Board shall continue in operation until superseded by an award of the other Board, but save as aforesaid any such first-mentioned award shall cease to have effect as from the day of such deprivation or abolition.

(3) When

Appointment of Conciliation and Arbitration Boards. No. 6283 s. 20.

Certain awards to continue in operation until superseded.


Chairman of new Board.

Transitory provisions as to Boards, awards, &c.

(3) When a new Board is appointed under this section any award within its jurisdiction previously made and in force shall within the area for which the award was made continue in operation until superseded by an award of the new Board.

(4) When a new Board is appointed under this section the President shall assign a member of the panel of chairmen to be the chairman of the Board.

(5) Every Wages Board constituted under Part III. of the Labour and Industry Act 1958 and acting as such immediately before the commencement of this Act shall, without any further or other authority than the provisions of this section, become and be a Conciliation and Arbitration Board for the purposes of this Act and the chairman and members thereof shall be entitled to continue in office, subject to this Act, for the remainder of the term for which they were assigned or appointed as chairman and members respectively of the Wages Board.

(6) Any proceedings commenced before a Wages Board or the Industrial Appeals Court under the provisions of the Labour and Industry Act 1958 before the commencement of this Act that are part heard upon the said commencement may be continued and concluded in all respects as if this Act had not been passed and for that purpose the Wages Board or Industrial Appeals Court shall be deemed to continue in office.

(7) Any proceedings commenced under the provisions of the Labour and Industry Act 1958 before the commencement of this Act but which have not reached a hearing before the commencement of this Act may be continued and concluded in all respects as if the proceedings were commenced under the corresponding provisions of this Act before a Conciliation and Arbitration Board established under this Act or before the Commission.

(8) A determination made under Part III. of the Labour and Industry Act 1958 or under the like provisions of a corresponding previous enactment shall be deemed to be an award within the meaning of this Act and shall, until revoked or amended, have the same force and effect as it had under the said Part III. and may be enforced under any of the provisions of this Act to the same extent as an award made under this Act.

25. (1) The Commission may from time to time by order published in the Government Gazette specify as trades and branches

whiS'S awMd of trades to which this section apphes any trades or branches of %o'^Tt2\ trades insofar as no award of any Board is operative in respect

thereof. (2) Any trade or branch of trade specified under sub-section (1)

is in this section referred to as a "specified trade or branch of trade".

Appointment of Boards for specified trades

(3) Without


(3) Without affecting the generality of section 24 the Commission may—

{a) appoint a Board (to be known as the "General Board") for any specified trade or branch of trade ;

{b) define the area (including the whole or any part of Victoria) within which the award of the General Board shall be operative with respect to each such trade or branch of trade, and extend or re-define any such area ;

(c) where the Commission is satisfied that the majority of employers or employes in any specified trade or branch of trade desires— (i) that a Board be appointed in respect of that trade

or branch; or (ii) that the jurisdiction of a Board be extended thereto— take the necessary action under section 24 for the appointment of such a Board or (as the case requires) for the extension of the jurisdiction of that Board and consequentially for depriving the General Board of any of its jurisdiction and for any other matter expedient in the circumstances.

(3) The General Board shall consist of a chairman and four constitution of members of whom— °"'" ' °»«'-

{a) two shall be appointed as representing employers on the nomination of the body known as the Victorian Chamber of Manufactures; and

(6) two shall be appointed as representing employes on the nomination of the body known as the Victorian Trades Hall Council.

(4) (a) Notwithstanding anything to the contrary in sub-section (3) where the Commission is satisfied that the majority of employers or employes in any specified trade or branch of trade desires that a representative of employers and a representative of employes engaged in that trade should be appointed to the General Board the Commission may appoint (in addition to the other members)—

(i) a representative of the employers who shall be a bona fide and actual employer in that trade or branch of trade or shall have been so within one month of his appointment; and

(ii) a representative of the employes who shall be a bona fide and actual employe in that trade or branch of trade or shall have been so within six months of his appointment or re-appointment.

(Z»)The


{b) The representatives so appointed shall be members of the General Board only for the purposes of the determination by the General Board of any matter relating to such trade or branch of trade.

(5) Except in respect of matters for which express provision is made in the foregoing provisions of this section the provisions of this Act shall apply to and in relation to the General Board in all respects as if it were a Board appointed under section 24.

Number of members of Boards. No. 6283 s. 22.

Panel of chairmen to be appointed.

26. (1) Subject to this Act each Conciliation and Arbitration Board shall consist of such even number of members as is specified by order of the Commission and a chairman.

(2) There shall be a panel of chairmen being persons imder the age of 65 years who shall be appointed by the Governor in Council and who shall be paid such salaries expenses and allowances as the Governor in Council determines.

Commission to assign chairman to each Board.

(3) The Commission shall assign a person from the panel of chairmen to be the chairman of each Board.

Saving of rights as to superannuation

Acting chairmaiL

(4) The Commission may at any time assign another member of the panel of chairmen to be chairman of a Board in place of the person previously assigned as chairman.

(5) The chairman of a Board shall be deemed and taken to be a member of the Board.

(6) If any person was immediately before his appointment to the panel of chairmen an oflScer within the meaning of the Superannuation Act 1958 or any corresponding previous enactment he shall subject to that Act continue to be an oflScer within the meaning of that Act.

(7) The Commission may appoint a person (whether or not a person on the panel of chairmen) to act, for such period or periods as the Commission thinks fit, as chairman of any Board during a period when the chairman of that Board is for any reason absent from duty and the person whilst so acting shall be deemed to be the chairman of the Board and shall be paid such remuneration as the Governor in Council determines.

^be.?"of"' 27. (1) Subject to section 28 (3) (a) all appointments and ^°"^a,. ,» re-appointments of members of Boards shall be made by the N o . 6283 I . ZA _ , '^^ . . . J . . . .1 • . / • . , . . ^

Commission in accordance with the provisions of this Act. Constitution of Boards. (2) One half of the members (exclusive of the chairman) of

a Board shall be appointed as representatives of employers and one half as representatives of employes.

(3) {a) The


(3) (a) The representatives of employers shall be bona fide and actual employers in the trade concerned or shall have been so within one month of their appointment or re-appointment or shall be officers of an association or organization of employers connected with the trade:

Provided that any of those representatives may be a person nominated to represent employers in the trade concerned which are corporations or public bodies.

Q}) The representatives of employes shall be bona fide and actual employes in the trade concerned or shall have been so within six months of their appointment or re-appointment or shall be officers of an organization or an association of employes connected with the trade concerned.

(c) No practising barrister or solicitor shall be appointed a member of a Board except a Board dealing only with the legal profession.

(d) Without affecting the generality of the expression "corporations" in paragraph (a) "public body" for the purposes of this sub-section includes—

(i) any local authority within the meaning of the Public Contracts Act 1958;

(ii) any municipality; (iii) the trustees of a cemetery; (iv) any body of persons corporate or unincorporate declared

by Order of the Governor in Council published in the Government Gazette to be a public body for the purposes of this section.

(4) In any case where in the opinion of the Commission a substantial number of the employers or employes in any trade carry on or are engaged in that trade more than 50 kilometres from the General Post Office, Melbourne, one at least of the persons nominated as representatives of employers and one at least of the persons nominated as representatives of employ6s shall be a person who carries on or is engaged in or has carried on or been engaged in (as the case may be) such trade more than 50 kilometres from the General Post Office, Melbourne.

(5) (a) Nominations of persons to represent employers on any NommaUon. of Board may be made by— S°p?Se''SItive*

(i) any association of employers recognized by the Commission pursuant to Part V., with respect to the trade for which that Board is constituted;

(ii) any employer or group of employers considered by the Commission to have a proper and substantial interest.

{b) Nominations


Appointment where insufficient persons willing to act

{b) Nominations of persons to represent employes on any Board may be made by—

(i) any association of employes recognized by the Commission pursuant to Part V., with respect to the trade for which that Board is constituted;

(ii) any group of employes considered by the Commission to have a proper and substantial interest.

(c) In making appointments the Commission shall have due regard to the standing in the trade of the association, group or individuals (as the case may be) signing the nominations.

(6) In any case where after the lapse of three months from the making of the order for the appointment of a Board or from the expiration of the term of office of members of a Board a sufficient number of qualified employers or employes willing to act as members of the Board has not been found the Commission may appoint any persons who have been engaged in the trade concerned to be representatives of the employers or employes on the Board.

Tenn of office of memben of Boards. No. 6283 •. 25.

Re-appointment.

Statutory declaration to be lodged.

28. (1) Appointments and re-appointments as members of a Board shall be for a period terminating on the 30th day of September next following the appointment or re-appointment.

(2) On the termination of his period of office every member of a Board shall be eligible for re-appointment as such a member unless during the month of September in which his period of office terminates an association of employers or employes subject to that Board gives to the registrar notice in writing of objection to his re-appointment as a representative of employers or employes (whichever is applicable).

(3) If on the termination of his period of office a member is willing to be re-appointed as such—

(a) the registrar may, where no objection referred to in sub-section (2) -s made against his re-appointment, re-appoint him as a member for the ensuing period; and

(b) the Commission shall, where an objection referred to in sub-section (2) is made against his re-appointment, suspend the re-appointment pending an inquiry by the Commission into the objection and on the conclusion of the inquiry may—

(i) re-appoint him as a member for the ensuing period; or

(ii) appoint a new member for the ensuing period in the manner provided by section 27.

(4) A person who is appointed or re-appointed as a member of a Board shall not act as such unless he has lodged with the registrar a statutory declaration that on the day when he was

appointed


appointed or re-appointed he was eligible for that appointment or re-appointment under the provisions of section 27.

(5) The Commission with the approval of the Minister may at any time remove any member of a Board.

(6) In this section "member" does not include the chairman.

29. (1) In the event of a vacancy (other than in the office of chairman) occurring from any cause whatsoever in a Board the Commission may appoint a person as representative of employers or employes, as the case requires, or in case of emergency or of inability of the Commission to act, the registrar may appoint such a representative if he is authorized in writing by the Commission so to do and observe any conditions or limitations imposed by the Commission in relation to that appointment and that person shall be so appointed for the unexpired portion of the term of office of the member who dies or resigns or is removed.

(2) Where a member of a Board appointed as a representative of employers or employes is by reason of a temporary illness incapacity or absence from the State unable to perform the functions of his office, the person or body that nominated that member under section 27 (5) may, by notice in writing given to the chairman of the Board, appoint a person qualified to be a member of that Board to represent employers or employes, as the case may be, to act as deputy of that member during the period of inability of that member.

(3) A person appointed under sub-section (2) to act as deputy of a member shall while so acting be deemed to be a member of the Board.

(4) Where a person is appointed under sub-section (2) to act as deputy of a member and that member ceases to hold office without having resumed the performance of the functions of his office, the period of appointment of the person so appointed shall be deemed to continue until the appointment is terminated by the person or body that appointed him or until the 30th day of September next following his appointment, whichever first occurs,

(5) During any vacancy in a Board (other than in the office of chairman) the continuing members may, unless any member of the Board objects, act as if no vacancy existed.

30. (1) In any case where the Commission is satisfied that anything has been done by any person or any body of persons corporate or unincorporate with the object of preventing the meeting or of delaying the proceedings of a Board the Conunission may direct the Board forthwith to meet and exercise its powers and carry out its duties.

(2) Upon

Removal of member.

Vacancies, No. 6283 ». 26.

Appointment of deputy member.

Commission may direct Board to meet In certain circumstances. No. 6283 s. 27.


(2) Upon a direction under sub-section (1) a Board shall forthwith meet and exercise its powers and carry out its duties accordingly notwithstanding that—

(a) some of the members of the Board have not been appointed or re-appointed; or

{b) some of the representatives of the employers or employes are absent from all or any of the meetings of the Board; or

(c) under section 29 (5) any member of the Board objects.

31. (1) A chairman of a Board shall have power—

(fl) to convene meetings of the Board of which he is the chairman;

{b) subject to the regulations to decide questions of procedure of that Board.

(2) The provisions of sections 14-16, 20 and 20A of the Evidence Act 195(8 shall extend and apply to every Board as if the Board were a Board appointed by the Governor in Council and as if the chairman of the Board had the powers of the chairman of a Board appointed by the Governor in Council.

32. (1) The chairman of every Board shall furnish the Minister with all such reports, documents, papers and minutes of the Board and with full information on any business of the Board which the Minister may himself require and use for the proper conduct of his public business.

(2) The chairman of every Board shall furnish the President with all such reports, documents, papers and minutes of the Board as the President requires.

33. (1) All the powers of a Board may be exercised by a quorum which shall consist of at least half the representative members and the chairman.

(2) The decision of the majority of the members of a Board on any matter is the decision of the Board on that matter.

(3) In the case of an equality of votes on any matter the chairman shall decide the matter as he thinks best, but shall give reasons for his decision.

(4) N o evidence relating to a trade secret or to the profits or financial position of any witness or party shall be disclosed or published without the consent of the person entitled to the trade secret or non-disclosure.

Powers of 34. (1) Evcry Board shall have power to make an award Sfo"62831 30 relating to any industrial matter whatsoever in relation to the trade

or branch of a trade or group of trades for which that Board is appointed

powers of chairman. Mo. 6283 s. 28.

Boards to have powers of board of inquiry under Evicknce Act 1958.

Chairman of Board to furnish Minister with reports, &c No. 6283 s. 28A.

Exercise of powers of Board. No. 6283 s. 29.

Decisions.

Chairman to decide matter where Board evenly divided.


appointed and in particular, without affecting the generality of the foregoing, to make an award determining all matters relating to—

(a) work and days and hours of work; (b) pay, wages and reward; (c) privileges, rights and duties of employers and employes; (d) the mode, terms and conditions of employment or

non-employment; (e) the relations of employers and employes; ( / ) industrial disputes; (g) the employment or non-employment of persons of any

particular age; (h) the demarcation of functions and of any employes or

class of employes; 0") the issuing or giving out of any material whatsoever for

the purpose of goods being wholly or partly manufactured outside a factory;

(k) questions of what is fair and right in relation to any industrial matter having regard to the interests of the persons immediately concerned and of society as a whole.

(2) Nothing in this Act shall enable a Board to determine any matter relating to the preferential employment or dismissal of persons as being or as not being members of any organization association or body or to fix lower piecework prices for persons under 21 years of age than those fixed for adults.

(3) Any award referred to in sub-section (1) may be made in respect of a group of trades or a trade or any branch of a trade or in respect of any one or more employers or establishments.

(4) Every person who issues or gives out or authorizes or permits to be issued or given out any material whatsoever for the purpose of any goods being wholly or partly prepared or manufactured outside a factory for trade or sale shall be deemed to be the'occupier of a factory and, if he has no factory, his usual place of abode shall be deemed to be his factory for the purposes of this Act.

Board not to determine questions as to preference. A c

No. 6283 s. 66.

35. (1) For wholly or partly preparing or manufacturing outside a factory a fabric of linen wool silk cotton or any other prescribed substance, or two or more of any such substances, or articles of clothing or wearing apparel or footwear a piecework price only shall be fixed by the Board.

(2) A Board shall on request of any occupier of premises fix a wages rate for any work done by any person operating a machine therein.

Outside work to be for pieoeworic price only. No. 6283 s. 32.

Rate for work at madiine.

(3) A Board


Power of Board as to repairing.

(3) A Board may determine industrial matters in relation to any person or class of persons employed in repairing any article with respect to the trade of manufacturing or preparing for which that Board may make an award.

Time of meetings.

Chairman to be satisfied notice given to Interested persons.

Submissions.

Proceedings to be open to public.

Procedure, &&, to be informal.

Basis of awards. No. 6283 s. 33.

Referral to Commission.

36. (1) The meetings of a Board shall be held as fixed by the Board from time to time or may be called by the chairman—

(a) on his own motion; (Z>) on the application of a member of the Board or of

a recognized association; (c) by direction of the President.

(2) An application by a member of a Board or of a recognized association for the calling of a meeting of a Board shall be lodged with the registrar.

37. (1) Before commencing the hearing of any proceedings before a Board the chairman shall satisfy himself that all persons or bodies appearing to him to have an interest in the subject-matter of the proceedings have been given reasonable notice of the time and place of the proceedings.

(2) A Board shall hear submissions from any person who satisfies the Board that he has a relevant and proper interest in the matter of the proceedings.

(3) Proceedings before the Board shall be open to the public unless the chairman, after consultation with the other members of the Board, considers it undesirable in the public interest or in the interest of any of the parties that the proceedings should be open to the public.

(4) A Board may retire to consider submissions privately, (5) Every Board may enter at a reasonable hour and inspect any

premises or place where persons are employed under the awards of that Board.

(6) A Board shall in every case be guided by the real justice of the matter without regard to legal forms and solemnities and shall direct itself by the best evidence the Board can procure or that is laid before the Board whether or not it is evidence such as the law would require or admit in other cases.

(7) In making awards a Board shall take into consideration relevant awards and decisions of and agreements certified by the Australian Conciliation and Arbitration Commission.

(8) A Board or a chairman of a Board may at any time during the course of proceedings before the Board apply to the Commission in Court session for an order referring any matter before the Board to the Commission for hearing and determination.

(9) Upon


(9) Upon any application referred to in sub-section (8) the Commission may order that any matter before a Board be referred to the Commission for hearing and determination and thereupon the matter shall be so referred.

38. (1) Every award of a Board shall be signed by the chairman Publication of

of that Board and printed and published by the Government N""6283S. 34. Printer.

(2) Subject to this Act every award of a Board shall— (a) from a day fixed by the Board being a day that is not

less than fourteen days after the last meeting of the Board held prior to that day; or

(h) in any case where the members of the Board unanimously so decide or the chairman decides by arbitration—from an eariier day (whether before or after the day upon which the decision or determination is made)—

be and remain in force until amended by an award of the Board or of the Commission.

(3) An award of a Board shall apply to the area (being the whole Application of

or a part of Victoria) defined by the Commission as the area within '""''• which awards of that Board shall operate.

(4) An amendment of an award shall, unless otherwise specified in the amending award, apply to the same area as the award amended.

(5) No award shall prevent the sons or daughters of an employer being employed by him in any capacity subject to the conditions of employment prescribed by this Act or required by any applicable award but—

(a) those sons and daughters shall be counted in calculating numbers of apprentices or minors who may be employed by that employer; and

{b) the employer shall not be bound to pay his sons and daughters the rates fixed by any award.

39. (1) Subject to the provisions of sub-section (2) no award shall apply to—

(a) an inmate of an institution employed in the institution; or

{b) a handicapped person employed in a sheltered workshop.

(2) Where the Commission is satisfied after due inquiry that an institution or sheltered workshop is unfairly competing with the occupiers of other places where work similar to that done by inmates of the institution or handicapped person employed in the sheltered workshop is done, the Commission may by order

apply

Children of employer not aR'ected. No. 6283 s. 35.

No awards to apply to certain persons. No. 6283 s. 36.

Commission may order that award applies to persons in institutions, &c.


apply as from a day specified in the order any relevant award to any inmate or class of inmates of the institution or to any handicapped person or class of handicapped persons employed in the sheltered workshop.

InterpretaUon. ( 3 ) I n thiS SBCtion—

"instituuon." "lustitution" means an institution conducted in good faith for religious or charitable purposes,

"ijjndicapped "Handicapped person" means a person who by reason *" of a mental or physical disability is unable to obtain

employment in industry in open competition. workHhSJJ- "Sheltered workshop" means a workshop or other similar

premises conducted for the purpose of enabling handicapped persons to engage in work for their benefit, whether or not the workshop or premises is conducted so as to ordinarily yield profit.

e ^ ^ i n two 40' ( 0 Where a person (other than a person entitled to a casual Vt w ^ "'"^ '"**®) ^ employed to perform two or more classes of work to which No. 6283 >. 37. thc awards of different Boards apply—

(a) if he is employed in any such class of work in a shop during any week he shall in respect of that week be paid as if he were employed wholly in such one of those classes of work which by award would provide the highest pay;

(h) if he ' is not so employed in a shop— (i) if he is employed for more than twenty hours in

any week in that class of work which by award would provide the highest pay—^he shall be paid as if employed wholly in such class of work during that week;

(ii) if he is not employed for more than twenty hours in any week in that class of work which by award would provide the highest pay—

if employed for more than four hours on any day in that class of work which by award would provide the highest pay—^he shall be paid in respect of such day as if employed wholly in such class of work on that day and at the appropriate hourly rate imder the relevant award;

if not employed for more than four hours on any one day in that class of work which by award would provide the highest pay—^he shall in respect of that day be paid in respect of

the


the time occupied in each class of work at the appropriate hourly rate under the relevant award—

which appropriate hourly rate (if not otherwise fixed by the award) shall be ascertained by dividing the ordinary weeldy rate by the ordinary weekly hours of work prescribed by the award for a person performing the class of work concerned.

(2) Where a person (other than a person who is subject to awards of the Garden Employes Board and who is employed at a private residence) is employed during any part of a day for an employer at work for which a Board has fixed a wages rate all work for which no other rate is prescribed by an award done anywhere by that person during that day for that employer shall be paid for at the wages rate so fixed.

41. The occupier of any premises in which a person subject to Copy of awards ' - -- - - - - — to be I an award is employed shall keep a copy of the last published award for"tas?^on"

applicable to that person and make the copy available for inspection ^o'";^3''^38 by that person at any reasonable time.

42. (1) If any person desires to dispute the validity of an award Power to

he may apply to the Supreme Court upon aflBdavit for a rule toSSMhawlS! calling upon the registrar to show cause why the award should NO. 6283 s. 39. not be quashed either whoUy or in part for ihe illegaUty thereof.

(2) Upon an application to the Supreme Court under sub-section (1) the Court may make the rule absolute or discharge it with or without costs.

43. Where anything in an award is inconsistent with any provision of this Act or any regulation rule or order made under this Act that part of the award which is so inconsistent shall not have and shall be deemed never to have had any force or eflFect.

Award inconsistent with Act to have no eifect.

44. (1) Where it appears to an employer or to the proper oflScer of an association of employers or of employes that an industrial dispute has arisen in which he or his association has an interest he shall inform the registrar of the dispute.

(2) The registrar shall forthwith inform the President and the chairman of the Board afifected and the chairman shall convene a meeting of the Board which shall attempt by conciliation to settle the matter of the dispute.

(3) If the Board is unable to settle the matter of the dispute by concihation the chairman shall proceed to determine the matter by arbitration.

(4) A Board

Employer. &e. to notify industrial dispute.

Board to attempt to settle dispute by conciliation.

Chairman to arbitrate.


Reference of dispute to Commission.

Power to Minister to refer dispute to Commission.

Effect of awards witli respect to Christmas Day, Boxing Day and New Year*! Day. No. 6283 8. 41A.

(4) A Board interested in the matter of an industrial dispute or the chairman of that Board or any party to the industrial dispute may at any time during the course of the dispute apply to the Commission for an order referring the matter of the dispute to the Commission for hearing and determination.

(5) Where the existence of an industrial dispute comes to the knowledge of the President or a Board otherwise than by notification from the registrar under sub-section (2) the President may direct the chairman of that Board to proceed as if the registrar had informed him of the dispute under sub-section (2) and the chairman shall proceed accordingly.

(6) The Minister may, either upon submission made to him by any person or body or of his own motion, refer the matter of any industrial dispute to the Commission.

45. Where a Board determines an industrial matter— (a) with reference to Christmas Day and in any year—

(i) Christmas Day falls on a Saturday—in that year the reference shall be deemed to be a reference to the next following Monday;

(ii) Christmas Day falls on a Sunday—in that year the reference shall be deemed to be a reference to the next following Tuesday;

(Z>) with reference to the day after Christmas Day and in any year—

(i) the day after Christmas Day falls on a Saturday— in that year the reference shall be deemed to be a reference to the next following Monday;

(ii) the day after Christmas Day falls on a Sunday— in that year the reference shall be deemed to be a reference to the next following Tuesday;

(c) with reference to New Year's Day and in any year New Year's Day falls on a Saturday or a Sunday—in that year the reference shall be deemed to be a reference to the next following Monday.

Cliairman to stats reasons for decisions, &c No. 8814 1. 9.

46. Where a Board makes an award the following provisions shall apply:

(a) Where the chairman votes on the resolution for the award— the chairman shall state the grounds upon which he based his decision that the award should be made and shall cause those grounds to be recorded in the minutes of the meeting;

(i) Where the award is made without the vote of the chairman—the award shall not come into operation unless and until the chairman gives his approval in

which


which case he shall state his reasons for giving his approval and his reasons shall be recorded in the minutes of the meeting; and

(c) An appeal may be brought against the failure of the chairman to give approval as provided in paragraph (b) in all respects as if it were an appeal under section 16.

PART IV.—INDUSTRIAL AGREEMENTS

47. (1) Any recognized association of employes may enter into an industrial agreement with any other recognized association of employes, or with any recognized association of employers or any employer or group of employers with respect to any industrial matter.

(2) An agreement made pursuant to sub-section (1) may be filed with the registrar if the parties agree.

(3) The registrar shall refer to the Commission every agreement so filed and the Commission may approve any such agreement.

(4) Every agreement approved by the Commission shall be registered.

(5) The Commission, on the application of the Minister, registrar, any person bound by an award or a person aggrieved or of its own motion where the Commission considers it advisable in the public interest or for any other reason to do so—

(i) may with respect to an industrial agreement impose such conditions as it considers just and equitable;

(ii) may prohibit any association of employes or any employer or association of employers from enforcing an industrial agreement inconsistent with an award or general ruling.

(6) An agreement relating to an industrial matter made between an association of employes and an association of employers or any employer or employers that is not approved and registered under this Part shall be void and of no force or effect.

(7) The Commission may make a general ruhng exempting from the operation of any provision of this section any agreement or class of agreement relating to an industrial matter and the provisions in respect of which the general ruling is made shall, while the general ruling remains in force, cease to apply to the extent provided therein.

(8) Every industrial agreement shall be in a form approved by the registrar and for a term to be specified therein not exceeding three years from the making of the agreement.

(9) Unless otherwise expressly agreed by the parties to the agreement an agreement shall be deemed to be made on the day

Making of industiUl agreenientt.

Unregistered agreement to be void.

Conuniision may exempt agreements, &c from operatloD of MCtfoii.

Fonnand content of agreement.

on


Mode of retirement.

Registration of agreement.

Certified copy to be evidence.

on which it is first executed by any party to the agreement and that day and the names of all the original parties to the agreement shall be truly stated in the agreement.

Agreement to (10) Notwithstanding the expiry of the term of an industrial force for parties agreement, it shall, subject to any award under this Act, continue not retired. jjj {Q^QQ JQ rcspcct of all parties to the agreement except those who

retire from the agreement.

(11) At any time after, or not more than thirty days before the expiry of an industrial agreement, any party to the agreement may file in the ofiice of the registrar a notice in the prescribed form signifying his intention to retire from the agreement at the expiration of thirty days from the filing of the notice and that party shall, on the expiration of that period, cease to be a party to the agreement.

48. (1) The registrar shall register every industrial agreement approved by the Conamission.

(2) Every document purporting to be a copy of an industrial agreement and certified to be a true copy by the registrar shall be admissible in evidence to the same extent as the original.

(3) The production of a certified copy of an agreement shall be prima facie evidence that the original agreement was duly executed in accordance with this Act and that the agreement has been filed with the registrar.

49. Whilst an industrial agreement is in force any person or association of persons may (with the consent of the Commission and of the original parties to the agreement or their respective representatives) become party to the agreement by filing in the office of the registrar a notice in the prescribed form concurring with the agreement.

50. (1) Every industrial agreement duly registered shall extend to and be binding on—r

(a) the parties who execute the agreement or concur in the agreement;

(b) every member for the time being of any industrial association on whose behalf that association has entered into the agreement;

(c) every employe who is, at any time whilst the agreement is in force, employed at a work site to which the agreement apphes by an employer on whom the agreement is binding; and

(d) every member for the time being of any association of employers on whose behalf the association has entered into the agreement.

(2) An

Addition of parties to agreement.

Persons bound by agreement.

1979 Industrial Relations N o . 9365 729

(2) An industrial agreement shall be enforceable in all respects as if it were an award.

51 . An industrial agreement may be varied, renewed or cancelled by any subsequent industrial agreement made by and between all the parties to the agreement, but so that no party shall be deprived of the benefit of an agreement by any subsequent industrial agreement to which he is not a party.

Variation, &c of agreement.

52. Whilst an industrial agreement remains in force with respect AWM<J not to to an employer the provisions of any award that would apply to agreement is

persons in his employment if he were not a party to the agreement "" ***"*• shall not so apply.

P A R T V . — R E C O G N I Z E D ASSOCIATIONS

53. An association of employers or employ6s may make application in writing to the registrar to be recognized as an association under this Act with respect to any trade or trades for which a Board has been constituted under this Act.

Application for recognition.

54. Every such application shall be in writing in the prescribed form duly completed and executed by the proper officer or officers of the association and shall be lodged with the registrar.

Lodgment witti registrar.

55. (1) Every such application shall be referred by the registrar to the Commission which may hear submissions from the applicant and any other person or association and may call for and take such evidence as it thinks necessary for determining whether or no t the application should be granted.

(2) If it appears to the Commission that the applicant is a bona fide association of employers or employes with respect to the trade or trades concerned the Commission shall grant the application with respect to the Board constituted for that t rade or those trades.

Application Tor recognition to be referred to Commission.

56. (1) The registrar shall issue to each association recognized under this Act a certificate of recognition in the prescribed form, which certificate shall until proof of cancellation be conclusive evidence of the recognition of the association mentioned in the certificate and that it has complied with the requirements of this Act and the regulations as to recognition.

(2) Where it appears to the Commission upon application made by the registrar that an association recognized imder this Act has failed to comply with an order of the Commission or of the chairman of a Board or has repeatedly engaged in conduct in disregard of the provisions of this Act the Commission may order that the recognition of the association be revoked and thereupon the

association

Registrar to issue certificate of recognition.

Commission may order recognition to be revolced in certain circumstances.


Rights, &C. of recognized association.

association shall be deemed not to be recognized and not entitled to exercise any of the rights or enjoy any of the privileges of a recognized association.

(3) An association recognized under this Act shall be entitled— (a) to nominate persons for appointment to Boards

estabhshed under this Act; (b) to be kept informed of the proceedings of any Board

with respect to which it is recognized under this Act; (c) to appear by its representatives or agents before any

Board in respect of which it is recognized under this Act in any matter affecting any interest of the members of the association; and

{d) to enter into an industrial agreement to be registered under Part IV.

Interpretation.

"Employer."

"Worlcer " No. 6283 s. 142.

PART VI.—ANNUAL HoLroAYS

inconsistent with the context or 57. In this Part unless or subject-matter—

"Employer" means any person employing any worker and includes the Crown.

"Worker" means any person employed by an employer to do any work for hire or reward and includes an apprentice and any other person whose contract of employment requires him to learn or to be taught an occupation.

Power to Commission to provide benefits to worlcers not otlierwise provided for. No. 6283 1. 144A.

58. (1) The Commission may upon the application of a recognized association make ah order with respect to the following matters:

(a) The giving by employers of annual holidays to workers in respect of whom no provision for the giving of annual holidays or annual leave is made by or under any enactment other than this Part or by any award or agreement;

(b) The giving of annual holidays and making of payments by employers to those workers where the estabUshment of an employer or a section thereof is temporarily closed (or reduced to nucleus for the purpose of giving annual holidays to workers entitled to them);

(c) The payments to be made by employers to those workers on the termination of their employment in recognition of their having completed part of the qualifying period for annual holidays; and

(d) The


(d) The manner and time of the giving and taking of any such holidays or of the making of any such payments.

(2) Where before the coming into operation of an order made under this Part any rights have accrued to a worker of the class to which the order applies those rights shall continue as if the order had not been made.

(3) Where an order made under this Part makes provisions creating an entitlement at the end of a period of employment or on the happening of an event, the provisions shall operate to create the entitlement in respect of any period of employment which ends after the coming into operation of the order or in respect of any event which happens after the coming into operation of the order notwithstanding that—

(a) any period by reference to which the entitlement is fixed begins before the coming into operation of the order; or

{b) any annual holiday has been taken in advance.

59. (I) The following provisions shall apply in every case workers to where provision is made by contract of employment for annual Srmore""*' holidays or annual leave for any worker: provSS

{a) Where the worker is entitled under the provision to NO. 6283 s. MS. benefits that are more favourable to the worker than the benefits provided by an order made under this Part, the order shall not apply to the worker and the worker shall be entitled to the benefits imder the provision;

{J}) Where the worker is entitled under the provision to benefits that are not more favourable to the worker than the benefits provided by the order the order shall apply to the worker and no benefit shall be allowed to the worker under that provision in respect of any period of employment to which the order applies.

(2) Where by virtue of sub-section (1) paragraph (a) a worker is entitled to annual hoUdays or annual leave under a contract of emplojonent if the annual hoUday or annual leave or any part thereof is taken by the worker before the end of a year of employment and—

(a) the employment of the worker is terminated before he completes the year of employment in respect of which the annual hohday or annual leave or part thereof was taken; and

(b) the amount paid by the employer to the worker as payment in respect of the annual hoUday or annual leave or part thereof so taken exceeds the amount

which

732 1979 Industrial Relations No, 5369

which the employer would have been required by an order made xmder this Part to pay to the worker in respect of ilie actual period of employment during the broken year of employment if the worker were entitled to annual holidays under the order and had not taken the annual holiday or annual leave or part thereof—

the employer shall be entitled to deduct the amount of the excess from any remuneration payable to the worker upon the termination of the employment.

S?"5?ohib!te<j. ^ - Subject to section 59 the provisions of this Part and of No. 62831.146. any order made under this Part shall have effect notwithstanding

any stipulation to the contrary and no contract or agreement shall operate to annul vary or exclude any of the provisions of this Part or of any order made under this Part.

Employment of workers during annual holiday prohibited. No. 6283 a. 147.

61. (1) N o worker shall during any period when he is taking his annual holiday engage in any employment for hire or reward.

(2) N o person shall knowingly employ a worker for hire or reward during a period when the worker is taking his annual holiday.

toS^'ESIida? 62. Every employer shall keep or cause to be kept a holiday r^rd. ° "' record in the form approved by the registrar and containing such No. 62831.148. particulars as are required by the Commission.

Recovery of holiday pay. No. 6283 a. 149.

63. (1) Any worker may apply to a Magistrates' Court consisting of a stipendiary magistrate sitting either with or without justices for an order directing the employer to pay to the worker the full amount of any remuneration or payment which has become due to the worker under this Part or the corresponding provisions of any other enactment or of any award at any time during a period of eighteen months immediately preceding the making of the application.

(2) The court may make any order it thinks just in the matter and may award costs to either party and assess the amount of those costs.

(3) From any determination or order of a court under this section an appeal shall lie to the Commission in Court session which shall have exclusive jurisdiction to hear and determine every such appeal.

PART VII .—LONG SERVICE LEAVE

inierpretauon. 64. (I) In this Part uulcss inconsistent with the context or subject-matter—

"Employer." "Employer" means a person employing a worker and includes the Crown.

"Ordinary


"Ordinary pay" means remuneration for a worker's normal "onUnaiypay." weekly number of hours of work calculated at his No.fi283i.iso. ordinary time rate of pay as at the time of the taking of the leave by the worker or (if he dies before the completion of the leave so taken) as at the time of his death and where the worker is provided with board or lodging by his employer includes the cash value of that board or lodging.

(2) For the purposes of the interpretation of "Ordinary pay" in sub-section (1)—

(a) where no ordinary time rate of pay is fixed for a worker's work under the terms of his employment the ordinary time rate of pay shall be deemed to be the average weekly rate earned by him during the period of twelve months immediately prior to the accrual to the worker (or his personal representative) of the entitlement concerned;

{b) where no normal weekly number of hours is fixed for a worker under the terms of his employment the normal weekly number of hours of work shall be deemed to be the average weekly number of hours worked by him during the period of twelve months referred to in paragraph (a);

(c) the cash value of any board or lodging provided for a worker shall be deemed to be its cash value as fixed by or under the terms of the worker's employment or, if it is not so fixed, shall be computed at the rate of $10 a week for board and $5 a week for lodging:

Provided that the value of any board or lodging or the amount of any payment in respect of board or lodging shall not be included in any case where the board or lodging is provided or the payment is made not as part of his ordinary pay but because the work done by the worker is in such a locality as to necessitate his sleeping elsewhere than at his genuine place of residence or because of any other special circumstances;

(</) where the taking of leave to which a worker is entitled is deferred as the result of a written agreement between the employer and the worker made at the request in writing by the worker, the ordinary time rate of pay as at the time of the taking of the leave shall be deemed to be the time rate agreed upon in that written agreement; Provided that it is not less than the time rate to which the worker is entitled as at the time of accrual of the leave.

65. (1) For

http://No.fi283i.iso


SSKnt- 65. (1) For the purposes of this Part employment (whether No. 6283 8. isii before or after the commencement of this Act) shall be deemed

to be continuous notwithstanding— the taking of any annual leave or long service leave; any absence from work of not more than 48 weeks in any year on account of illness or injury; any interruption or ending of the employment by the employer if such interruption or ending is made with the intention of avoiding obligations in respect of long service leave or annual leave; the taking of leave granted by the employer which is not leave or absence from work of a kind mentioned in paragraph (a) or paragraph (b). any interruption arising directly or indirectly from an industrial dispute;

( / ) the dismissal of a worker if he is re-employed within a period not exceeding two months after his dismissal; the standing down of a worker on account of slackness of trade; any absence from work of a woman for a period not exceeding twelve months in respect of her pregnancy; any other absence of the worker by leave of the employer, or on account of injury arising out of or in the course of his employment.

Employment with related coiporationi deemed to be one employmenb

(a) (b)

(c)

id)

ie)

ig)

(h)

U)

(2) In respect of a worker employed by a corporation any period of employment with a corporation which by virtue of section 6 (5) of the Companies Act 1961 is deemed to be related to the first-mentioned corporation shall, for the purpose of calculating the period of continuous employment of that worker, be deemed to be employment with that first-mentioned corporation.

(3) In calculating the period of continuous employment of a worker, a period of leave mentioned in sub-section (1) paragraph (d) shall be counted as part of the period of employment unless on it being granted there is an agreement in writing between the employer and the worker made at the request of the worker that the period of leave shall not be counted as part of the period of employment.

(4) In calculating the period of continuous employment of a worker, any interruption or absence of a kind mentioned in sub-section (1) paragraphs (a) to (d) shall be counted as part of the period of his employment but any interruption or absence of a kind mentioned in sub-section (1) paragraphs (e) to (j) shall not be counted as part of the period of employment.

(5) (fl) Where


(5) (a) Where a business is, whether before or after the / commencement of this Act, transmitted from an employer (in this paragraph called the "transmitter") to another employer (in this paragraph called the "transmittee") and a worker who at the time of the transmission was an employe of the transmittor in that business becomes an employ^ of the transmittee—

(i) the continuity of employment of the worker shall be deemed not to have been broken by the transmission;

(ii) the period of employment which the worker had with the transmittor or any prior transmittor shall be deemed to be employment of the worker with the transmittee.

{b) In this sub-section— "Business" includes trade process business or occupation

and includes part of any such business, "Transmission" includes transfer conveyance assignment

or succession whether by agreement or by operation of law and "transmitted" has a corresponding interpretation.

(6) Where the employment of a worker apprenticed to an employer has whether before or after the commencement of this Act been continued by that employer upon or at any time within three months after the completion of the apprenticeship the period of the apprenticeship shall be counted as part of the period of continuous emplojanent of that worker with that employer.

(7) The continuous employment by an employer of a worker AS to who is employed by him at the commencement of this Act shall bSSre'""""* for the purposes of this Part commence at the actual day (before ^'^'•«nient the commencement of this Act) of that employment. NO. 6283 s. isz.

(8) In computing long service leave under this Part, any long service leave (or payment in lieu thereof) granted to the worker in respect of any period of employment which is under this section taken into account in computing the worker's entitlement to long service leave under this Part shall be taken into account and be deemed to have been leave taken under this Part.

66. (1) The Commission may, subject to such conditions as it thinks fit to impose from time to time, exempt any employer in respect of all or any or any class of his workers from the operation of the provisions of this Part in any case where the Commission is satisfied—

(a) that those workers are under the terms of employment with the employer entitled on a basis not less favourable than that prescribed by this Part—

(i) to long service leave;

(ii) (whether

Exemptions. No. 6283 s. 153.


(ii) (whether or not solely at the cost to the employer, but at not less cost to the employer than the cost involved in prdviding long service leave under this Part) to superannuation benefits or to superannuation benefits and long service leave; and

{b) that under the terms of employment with the employer such an entitlement would better serve the interests of those workers than the entitlement provided by this Part—

and may at any time revoke any exemption under this sub-section.

(2) Where by an award or by agreement (whether made before or after the commencement of this Act) any workers or class of workers are entitled to long service leave—

{a) if the Commission is satisfied that the entitlement referred to in sub-section (1) paragraph (Z>) is on a basis more favourable than that prescribed by this Part, this Part shall not apply in relation to those workers;

Q}) in any other case the award or agreement so far as it relates to long service leave shall not apply in relation to those workers.

(3) This Part shall not apply in relation to any workers or class of workers who by or under any Act relating to the public service the teaching service the railway service the pohce force or fire brigades or by or under any other Act are entitled to long service leave.

long'IS ce"' ^^' ^ ^ Subject to this Division every worker shall be entitled leave.'*™" to IcHg servicB leavc on ordinary pay in respect of continuous No. 6283 s. 154. employment with one and the same employer.

(2) The amount of that entitlement shall be— (a) on the completion by a worker of fifteen years

continuous employment with his employer— thirteen weeks long service leave and thereafter an additional four and a third weeks long service leave on the completion of each additional five years of continuous employment with that employer;

{b) in addition, in the case of a worker who has completed more than fifteen years continuous employment with his employer and whose employment is temainated otherwise than by the death of the worker—an amount of long service leave equal to one-sixtieth of the period of his continuous employment since the last accrual of entitlement to long service leave under paragraph (a);

(c) in


(c) in the case of a worker— (i) who has completed at least ten but less than fifteen

years of continuous employment with his employer; or

(ii) who has completed at least fifteen but less than twenty years of continuous employment with his employer beginning before the commencement of the Labour and Industry {Long Service Leave) Act 1964 and ending after the commencement of that Act and by reason of the operation of section 69 is not entitled to long service leave under paragraph {a)—

and whose employment is terminated for any cause other than by the employer for serious and wilful misconduct, such amount of long service leave as equals one-sixtieth of the period of his continuous employment.

68. (1) If a worker entitled to long service leave dies before Payment in lieu or while taking that leave his employer shall thereupon pay to his fJ .J ' on" " personal representative an amount equal to the ordinary pay that ^'^'.' '"l'"' ' would have been payable to the worker in respect of the period "• ** ' ' of long service leave not taken by the worker less any amount already paid to the worker in respect of any of that leave not taken.

(2) Where a worker who has completed more than fifteen years continuous employment with an employer dies while still in the continuous employment of that employer his employer, in addition to any sum payable under sub-section (1), shall thereupon pay to his personal representative in respect of any period (hereafter in this Part called the "fractional period") of the continuous employment which is after the last accrual of entitlement to long service leave under section 67 (2) paragraph (a) an amount equal to his ordinary pay for a period equalling one-sixtieth of the fractional period.

(3) Where a worker— (i) who has coinpleted at least ten but less than fifteen

years of continuous employment with an employer; or (ii) who has completed at least fifteen but less than twenty

years of continuous service with an employer beginning before the commencement of the Labour and Industry {Long Service Leave) Act 1964 and ending after the commencement of that Act and, by reason of the operation of section 69 is not entitled to long service leaye under section 67 (2) paragraph (a)—

dies while still in the employment of that employer his employer shall thereupon pay to his personal representative an amount

equal

11450/80-47


equal to his ordinary pay for a period equalling one-sixtieth of the period of his continuous employment.

(4) Except as provided in this Part payment shall not be made by an employer to a worker or his personal representative in lieu of any long service leave or part thereof to which the worker is entitled under this Part nor shall any such payment be accepted by a worker or his personal representative.

Determination of entitlement in certain

No. 6283 s. 115*.

69. Notwithstanding anything to the contrary in sections 67 and 68, for the purpose of determining—

(a) the amount of long service leave or pay in lieu thereo to which a worker or a worker's personal representative is entitled in respect of a period of employment beginning before the commencement of the Labour and Industry (Long Service Leave) Act 1964 and ending after the commencement of that Act; or

(b) whether or not a worker is entitled pursuant to section 67 (2) paragraph (a) to long service leave in respect of a period of employment so beginning and ending—

so much of that period of employment as was completed before the said commenoement shall be reduced by one-quarter.

When long ^0. (1) When a worker becomes entitled to long service leave service leave undcr this Part that leave shall be granted by the employer as to be taken. . , , , . , ° t n % • 11'"i No. 6283 8.156. soou as practicable having regard to the needs of his establishment

but subject to this Part— (a) the taking of the leave may be postponed to such day as

is mutually agreed or in default of agreement as the Commission having regard to the problems involved directs but no such direction shall require the long service leave to commence before the expiry of six months after the giving of the direction;

{b) in no case shall an entitlement to long service leave be lost or in any way affected by the foregoing provisions of this sub-section or by the failure or refusal of the employer to grant the leave.

(2) Notwithstanding anything to the contrary in sub-section (1) where the employment of a worker is for any reason termiriated before he takes all the long service leave to which he is entitled or where a long service leave entitlement accrues to a worker because of the termination of his employment the worker shall be deemed to have commenced to take his leave on the day his employment was terminated and he shall be entitled to be paid by his employer ordinary pay in respect of that leave.

(3) If.


(3) If an employer and a worker so agree— (a) the first thirteen weeks long service leave to which the

worker becomes entitled may be taken in two or three separate periods; and

(p) any subsequent period of long service leave to which the worker becomes entitled may be taken in two separate periods—

but save as aforesaid long service leave shall be taken in one period.

(4) The ordinary pay of a worker on long service leave shall be paid to him by the employer when the leave is taken and shall be paid in one of the following ways:

(fl) In full when the worker commences his leave; or (p) At the same time as it would have been paid if the

worker were still on duty; in which case payment shall, if the worker in writing so requires, be made by cheque posted to a specified address; or

(c) In any other way agreed between the employer and the worker—

and the right to receive ordinary pay in respect of the leave shall accrue accordingly.

(5) Where a worker who is on long service leave— (a) has been paid in full on the commencement of his leave ~

pursuant to sub-section (4) paragraph (a); or ip) has been paid in advance with respect to any period

of the leave— and his ordinary pay increases during the period of the leave he shall be entitled, subject to this Part, to be paid at the increased rate as from the time of the increase, and the employer shall forthwith pay him the difference on his return to work.

(6) Any long service leave shall be inclusive of any public holiday occurring during the period when the leave is taken, but shall not be inclusive of any annual leave occurring during that period.

71. (1) An employer may by agreement with a worker grant araaung long service leave to ttie worker before the entitlement to that leave jfdiJSja. has accrued (hereafter in this section called "leave in advance"), NO.6283

^ ' 5. 156A.

. (2) Where leave in advance is granted and taken the worker shall not be entitled to further leave or to payment in lieu thereof for the period of continuous service in respect of which the leave was taken before its entitlement accrued.

(3) Where the employment of a worker who has taken leave in advance under this section is subsequently terminated the

employer

11450/80-48


Settlement of disputes as to entitlement to long service leave. No. 6283 s. 157

Appropriate Magistrates' Court. No. 6283 s. IS9

employer may, from any remuneration payable to the worker upon that termination, deduct and withhold an amount equal to that part of the amount paid by him to the worker in respect of leave in advance to which the worker had not become entitled before his employment was terminated.

72. (1) Any dispute as to—

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

{b) the rate of ordinary pay of a worker for the purposes of this Part—

shall be heard and determined by a Magistrates' Court as hereafter in this Part provided.

(2) Any worker or personal representative of a worker may apply to a Magistrates' Court as hereafter in this Part provided for an order directing the employer to pay to the worker or personal representative the full amount of any payment which has at any time during a period of five years immediately preceding the making of the apphcation become due to the worker or personal representative under this Part.

(3) The court shall hear and determine any such matter and may make any order it thinks just and may award costs to any party and assess the amount of those costs.

73. (1) Where under section 72 a matter is to be heard and determined by a Magistrates' Court—

(a) if the last known place of business or residence of the employer concerned is in the Court District within the meaning of section 91 the matter shall be heard and determined by the Metropolitan Industrial Court;

{b) in any other case the matter shall be heard and determined by the Magistrates' Court (consisting of a stipendiary magistrate sitting alone) nearest or most convenient to the last known place of business or residence of the employer concerned.

Appeals. (2) From any determination or order of a court under section 72 an appeal shall he to the Commission in Court session which shall have exclusive jurisdiction to hear and determine every such appeal. ^

Jurisdiction and 74. (1) The dccisiou of the Commission in any matter JS'^ISM."'^ whatsoever under this Part (including any decision as to costs) No. 6283 s. 159. gj ^U be final and without appeal.

(2) The


(2) The provisions of section 22 relating to appeals to the Commission from convictions and orders of a Magistrates' Court shall with such adaptations as are necessary extend and apply with respect to appeals to the Commission under this Part and the orders so appealed from.

(3) The Governor in Council may make rules as to the Procedure,

procedure of the Commission relating to matters arising under this Part but subject to the provisions of sub-section (2) and any rules made under this sub-section the Commission may regulate its own procedure in any matter arising under this Part.

75. Save as otherwise expressly provided in this Part the provisions of this Part shall have effect notwithstanding any stipulation to the contrary whether made before or after the commencement of this Act and no contract or agreement made or entered into either before or after the commencement of this Part shall operate to annul or vary or exclude any of the provisions of this Part.

Contracting out prohibited. No. 6283 s. 160.

76. (1) No worker shall during any period when he is on long service leave engage in any employment for hire or reward.

(2) No person shall knowingly employ any worker for hire or reward during any period when that worker is on long service leave.

Employment of worker during long service leave. No. 6283 9. 161,

Offences and penalties. No. 6283 9. 163

77, (1) Every employer shall keep or cause to be kept a long Employers to

service leave record in the form approved by the registrar and ^^^l^^2. containing such particulars as are required by the Commission.

(2) Every person who— (a) makes any false or misleading statement in or any

material omission from any long service leave record which he is required to keep;

{b) obstructs an inspector in the exercise of his powers under this Part;

(c) fails to comply with any requirement or direction lawfully given by an inspector for the purposes of this Part or to furnish any information lawfully demanded by an inspector for the purposes of this Part ; or

{d) contravenes or fails to comply with any of the provisions of this Division—

shall be guilty of an offence and hable to a penalty of not more than $200.

(3) In any proceedings for an offence against the provisions of Bom /ute paragraph {a) in sub-section (1) it shall be a good defence if the ^gj,j*

person


person charged proves to the satisfaction of the court that the statement or omission complained of resulted from a bona fide error.

may"be''wd W Notwithstanding anything to the contrary in this or any within 6ve Other Act an information for an offence against this section may ^^^' be laid at any time within five years after the commission of that

offence.

i ovOTWe "*'' ^ * ^y amount due and owing by an employer to a worker undK Act. or his personal representative under this Part shall remain due

and owing until paid and shall be and be deemed to be arrears of pay for the purposes of this Act.

No. 6283 s. 164.

P A R T V I I I . — O T H E R CONDITIONS

?iMoy<s''to be '^^- ^^ ° ®^®^ v^diCQ whcrc pcrsons are engaged in a t rade kept. subject t o an award or agreement the occupier or employer shall No. 6283 •. 122. causc to bc made a t rue record in such form and giving such

particulars as are prescribed as to the names work and wages of the persons employed therein and the name and age of every such person who is under 21 years of age.

pr^iad^o^ (2) A record kept under sub-section (1) shall be produced for demand. inspcction wheuevcr demanded by an inspector.

^pie?'of (3) There shall be kept printed painted or affixed in legible R o m a n SiMay'ed. "* characters, in such posit ion as is directed or approved by an inspector,

near to the outside of the principal outer door of every place referred to in sub-section (1) the name of the occupier of tha t place.

mS"" "" ^ - N° employer shall employ any person for more than five No. 6283 hours continuously without an interval for a meal of such duration 5.128 (1). g ^g appropriate award or agreement specifies or, in default

of any such specification, of not less than half an hour.

I to lS'' *" ^^' ( ) Every employer of employes in a trade with respect No. 6283 8.129. to which an award or agreement is in force shall provide and

cause to be kept a book or other record in a form approved by the registrar in which each employe shall enter on each day the times at which he commences and finishes work on that day and shall sign his name to those entries.

ptoduwton of (2) The employer shall produce the book or other record for demand. inspcctlon whcncver demanded by an inspector.

re^dtar* ( ) • ^ employer shall be deemed to have comphed with the suffidek*'""'* foregoing provisions of this section—

(a) if he provides and causes to be kept as prescribed a time clock system or recording device by means of

which


which each employe records the times at which he commences and finishes work; and

{b) if he permits an inspector to inspect any time clock or recording device and any cards tapes records and other devices or things used in connexion with that clock or device whenever so demanded by the inspector.

82. (1) Every employer shall pay or cause to be paid at least once Empioyts to be in every fortnight all earnings due to every person employed by him For'iilhtiy!" in a trade to which an award or agreement applies. NO. 6283«. 133.

(2) Where an employer employs a person on work for which the lowest prices or rates have been fixed in an award or agreement the employer shall be liable to pay and shall pay in full in money without any deduction, other than a deduction permitted to be made under sub-section (4), to that person the price or rate so fixed.

(3) For the purposes of this section a payment is a payment in money if it is made—

{a) in cash; or {b) with the authority in writing of the person employed—

(i) by cheque, postal order or money order payable to that person; or

(ii) into a bank account specified in the authority by that person.

(4) F rom any moneys payable under sub-section (1) by an Employ* may employer to a person employed by him the employer may deduct d^cS^s to and pay on behalf of the employe any payments authorized in •» '^^'• writing by the employe to be so deducted and paid.

(5) Where the employe in writing withdraws— withdrawal of (a) the authority given pursuant to sub-section (3) make

paragraph {b) and no authority is given in writing '''*'"="°"''-for payment in any of the other ways mentioned in that paragraph the employer shall pay the employ^ in cash;

{b) the authority given pursuant to sub-section (4) with respect to a deduction and payment which was autiiorized by the employ^, the employer shall cease to make that deduction and payment.

83. Where a piecework price or a wages rate is fixed by an Empioyts not award or agreement no person shall either directly or indirectly goods or

require or compel any person affected by the award or agreement uXng.""' to accept goods of any kind or board or lodging in lieu of money NO. 6283 s. 143. or in payment or part payment for any work done or wages earned,

and

744, 1979 Industrial Relations No. 9365

Certain guarantees illegal. No. 6283 s. 138.

and the receipt or acceptance of any goods or board or lodging shall not be deemed to be payment or part payment for any such work or of any such wages.

84. Except with the written consent of the Commission in Court session no person shall require or permit any person to pay any sum of money or enter into or make any guarantee or promise requiring or undertaking that that person shall pay a sum of money in the event of the behaviour or attendance or obedience of any employe not being at any time satisfactory to the employer.

85. A guarantee or promise referred to in section 84 or to the like effect that is entered into or made without the written consent of the Commission in Court session shall be null and void.

Recovery of nioneys paid under unauthorized guarantee.

86. Any amount paid in pursuance of a guarantee or promise made in contravention of the provisions of section 84 shall be returned to the person paying it who may, if it is not returned to him on demand, recover the amount as a civil debt recoverable summarily in any court of competent jurisdiction from the person who received it.

Appointment of inspectors. No. 6283 s. IS (1).

Certificate appointment. No. 6283 8. 186 (2).

Powers of inspectors. No. 6283 s. 186 (1).

PART IX.—GENERAL AND SUPPLEMENTARY

87. (1) Subject to the Public Service Act 1974 there may be appointed as many inspectors for the purposes of this Act as appear necessary.

(2) Every inspector shall be furnished by the secretary with a certificate of his appointment which shall be produced on demand to the occupier or person in charge of any building or place which an inspector intends to enter or enters in the course of his duty under this Act.

(3) Every inspector may for the purposes of the execution of this Act—

(fl) with such assistance as he requires enter inspect and examine at all reasonable times by day or night any premises whatsoever which he considers it is necessary to enter in the administration of this Act;

{b) require the production of pay-sheets or books wherein account is kept of the actual wages (whether by piecework or not) paid to every individual employe in any place to which an award or agreement applies and take copies of or extracts from those pay-sheets or books;

(c) require the production of any books registers certificates notices records and documents required by or under

this


this Act to be kept and inspect and examine them and take copies of or extracts from them or any of them;

id) make such examination and inquiry as may be necessary to ascertain whether the provisions of this Act are being or have been complied with in relation to any premises and the persons employed therein;

(e) enter any school in which he has reasonable cause to believe that any employes are being educated;

( / ) examine either alone or in the presence of the occupier or employer or of his agent or employe with respect to matters under this Act every person whom he finds in those premises, or whom he has reasonable grounds to believe to be or to have been within the preceding two months employed in those premises or at work subject to an award or agreement and require that person to be examined and to sign a statutory declaration as to the truth of any statements made by him as to the matters respecting which he is examined;

{g) exercise such other powers as are necessary for carrying this Act into effect.

(3) When an inspector uses the assistance of an interpreter, any inquiry or requisition to any person made on behalf of the inspector by the interpreter shall for all purposes be deemed to be made by the inspector, and any answer made to the interpreter shall be deemed to be made to the inspector.

(4) N o person shall be required under this section to answer any question or to give any evidence tending to criminate himself.

Effect of inquiry. &c. by interpreter.

88. Every person appointed under the provisions of the Labour I'"P*='?" I l l 1 inr-n t • . !• t /» . UndCT LoDOUr

and Industry Act 1958 to be an inspector for the purposes of that and ' • ^ " y Act shall without any further or other appointment become and inspectors for

be an inspector for the purposes of this Act in all respects as if he S B ' A ^ °^ were appointed under this Act to be an inspector for the purposes of this Act.

89. (1) The occupier of every premises and his agents and occupier to employes shall furnish the means required by an inspector necessary inspector.

for any entry inspection examination or inquiry or for the exercise NO. 6283 s. i87. of the powers of the inspector under this Act.

(2) Every person w h o ^ (a) wilfully delays an inspector in the exercise of any power

under this Act;

{b) fails


Penalty.

{b) fails to comply with a requisition of an inspector made under any such power, or to produce a document which he is required by or in pursuance of this Act to produce; or

(c) conceals or prevents any person from appearing before or being examined by an inspector or attempts so to conceal or prevent a person—

shall be deemed to obstruct an inspector in the execution of his duties under this Act.

(3) Every person who— (fl) obstructs hinders impedes resists or opposes; or {b) refuses to admit to any premises—

an inspector or person assisting an inspector or other person in the performance of anything which the inspector or other person is lawfully doing under this Act and the occupier of any premises where any such obstructing hindering impeding resisting opposing or refusing occurs shall be guilty of an offence against this Act.

(4) Every person who assaults or directly or indirectly intimidates or threatens or attempts to intimidate or threaten an inspector shall be liable to a penalty of not more than $400 or imprisonment for a term of not more than six months.

PART X.—LEGAL PROCEEDINGS

Proceedings 90 . W h e r e a person is charged with an offence against this ["b^'blSSht Ac t the charge shall, unless otherwise expressly provided, be m^Magistrates- j jcard before a n d all penalt ies recovered before a Magis t ra tes ' No. 6283 s. 189. C o u r t coHsisting of a st ipendiary magis t ra te sitting a lone .

Proceedings 91. (1) A Metropolitan Industrial Court shall be held at such offenders, place or places within the Court District as the Governor in No. 6283 s. 191. Couucil by notice published in the Government Gazette appoints.

(2) The Governor in Council may appoint any one or more stipendiary magistrates to be a special magistrate and to exercise the jurisdiction of the Metropolitan Industrial Court under this section.

(3) The Metropolitan Industrial Court— (a) shall be a Magistrates' Court; and {b) shall consist of a special magistrate appointed under

sub-section (2) sitting alone without any other justice or justices.

(4) Notwithstanding anything to the contrary in section 90— (a) the Metropolitan Industrial Court shall have exclusive

jurisdiction to hear and determine all proceedings

for

1979 Industrial Relations N o . 9365 747

for offences against this Act alleged to have been committed within the Court District; and

{b) the jurisdiction of every other Magistrates' Court within the Court District in respect of the matters as to which the Metropolitan Industrial Court has exclusive jurisdiction shall not be exercised by such Magistrates' Court.

(5) In this section— "Cour t District" means the district which is from time to

time declared by Order of the Governor in Council published in the Government Gazette to be the district in respect of which the Metropolitan Industrial Court has jurisdiction.

(6) The Court District within the meaning of section 190 of the Labour and Industry Act 1958 immediately before the commencement of this Act shall be deemed to be the Court District for the purposes of this section at the commencement of this Act.

92. (1) N o proceedings shall be taken against any person for Metropolitan

an offence against any of the provisions of this Act except by— { iHS"*" (a) direction in writing of the Minister; NO. 6283 s. 190.

{b) direction in writing of the secretary if authorized in writing by the Minister either generally or in any particular case;

(c) direction in writing of any other officer of the Department authorized in writing either generally or in any particular case by the Minister on the recommendation of the secretary.

(2) A direction given by the Minister under sub-section (1) or by any person authorized by the Minister under that sub-section may be revoked by the Minister at any time.

(3) An authority in writing under sub-section (1) paragraph (c) may be revoked by the Minister at any time.

(4) Any proceedings directed to be taken by the Minister, the secretary or any other officer of the Department may be taken by an inspector and may be conducted before the court by any other inspector.

(5) Where proceedings are taken under this section if the court amends the information, warrant or summons the direction or authority under this section shall be sufficient authority for the continuance of the proceedings.

(6) All Courts shall take judicial notice of the signature of Jud'ciai notice. every person who is or has been Minister or secretary to every

document


document required to be signed and of the signature to a direction to take proceedings of any person who is or has been an officer of the Department authorized under this section to sign such a direction.

General 93. (1) The foUowiug provisions shall have effect with respects pfocMsdiSga!' ° to all proceedings for offences under this Act— No. 6283 s. 192. ^^^ -^^ procccdings against a person in respect of the

failure of an employer to pay an amount required to be paid by section 68 to the personal representatives of a deceased worker, the onus of proof that a period alleged in the information as the period of continuous employment of the worker with the employer is not the correct period of such continuous employment shall be on the defendant;

{b) the onus of proof that the person named in a summons as an employe of the defendant in a certain capacity was not employed in the capacity alleged in that summons shall be on the defendant;

(c) the onus of proof that the premises or place named in a summons is not within the municipal district or locality mentioned in the summons shall be on the defendant;

{d) it shall not be a defence that the occupier of any premises was not in Victoria at the time the alleged offence was committed;

(e) where the age of a person at any time is material his age at that time shall be deemed to be or to have been that which appears to the court after considering any available evidence to be or to have been his age at that time.

Award to be evidence. =,.u u« ^ ^^® production before a court of a printed paper purporting No"6283 8.192. to contain or to be a copy of an award or agreement and to be

printed by the Government Printer shall be conclusive evidence of the due making and existence of the award or agreement and of the due appointment of the Board or (as the case requires) of the Commission and of all preliminary steps necessary to the making of the award or agreement.

Prosecution of firms, &c. No. 6283 s. 194.

94. (1) Any person or body of persons may be prosecuted for an offence against any of the provisions of this Act or any regulation, award or agreement in the true ostensible or reputed name of that person or body of persons and a conviction may be had in that name against the actual person so offending.

(2) A corporation may be guilty of an offence against this Act, and for the purposes of this Act there shall be imputed to a corporation any knowledge consent or intent of any director or

officer


officer thereof and any person who is a director or officer of a corporation which is guilty of an ofFence against this Act shall be deemed to have committed the offence and (without affecting any hability of the corporation or of any other person therefor) shall be liable accordingly, unless he proves that the act or omission constituting the offence took place without his knowledge or consent and that he did not know and could not reasonably have known thereof.

95. When an award or agreement is amended or revoked the amendment or revocation shall not directly or indirectly affect any legal proceedings of any kind previously commenced or which might previously have been taken for any breach of the award or agreement or any right existing at the time of the amendment or revocation.

96. If an employe makes demand in writing on his employer (which demand, if the employ^ leaves the employment of the employer, shall be made within six months after he leaves that NO. 6283 s. i98. emplojTnent) he may within twelve months after the money became due take proceedings in any court of competent jurisdiction to recover from the employer the full amount or any balance of the sum demanded, in accordance with the award or agreement which applies to the work on which the employd was engaged any smaller payment or any express or implied agreement or contract to the contrary notwithstanding.

Effect of amendment of awards, &c. No. 6283 a. 197.

Recovery of award rates, &c

97. (1) Where a person is in respect of an employe or former employe of his convicted of an offence against this Act the court in addition to imposing a penalty for the offence may order the offender to pay to the employe or, in the case of a former employe who is dead, to his personal representative such amounts for arrears (for any period not exceeding twelve months) of any moneys payable under this Act as the court considers to be or to have been due to the employe.

(2) Any such amount may be recovered by distress and in default of payment the offender shall be liable to imprisonment for a term of not more than three months.

(3) Nothing in section 96 shall in any way limit or affect the jurisdiction conferred by this section.

Power to Court to order payment of arrears. No. 6283 s. 199.

PART XI.—OFFENCES AND PENALTIES

98. (1) Where a price or rate of payment for any person or ? ^ ^ J " class of persons is fixed in an award which is in force every person— awani. &c

No. 6283 s. 200.

{a) who either directly or indirectly or under any pretence or device attempts to employ or employs or authorizes

or


Registrar may permit student to work in factory, &c.

or permits to be employed any person at a lower price or rate of wages or piecework (as the case may be) than the price or rate fixed;

Q}) attempts to employ or employs or authorizes or permits to be employed any apprentice or minor in excess of the number or proportionate number fixed by the award; or

(c) contravenes or fails to comply with any of the provisions of the award or of the provisions of this Act relating to awards or agreements or to aged infirm or slow workers—

shall be guilty of an offence. Penalty: 1st offence—not more than $500;

2nd offence—not more than $2000; 3rd or subsequent offence—not more than $3 000.

(2) The registrar may permit a student of a university in Victoria or the Victoria Institute of Colleges or an affiliated college of the Victoria Institute of Colleges or any student taking full day courses of technological study at any school for technical education in Victoria to enter and work in any factory shop or place during the time he is a student at any such institution for the purpose only of acquiring practical knowledge and skill in any trade carried on in that factory shop or place which relates to the course of study in which he is taking full day courses notwithstanding that he is not paid the rates provided by any award or agreement in force for the trade concerned.

False entries in books registers, &c. No. 62S3 S.203.

99. Every person who wilfully makes a false entry in or material omission from any book register notice certificate list record or document required by this Act to be kept or served or sent, or who knowingly makes use of any such false entry shall be liable to a penalty of not more than $200 or to imprisonment for a term of not more than three months.

°«^°1™' 100. (1) Every person who contravenes or fails to comply No. 6283 s. 205. with any of the provisions of this Act or of any regulation order

notice direction or rule thereunder shall be guilty of an offence against this Act.

(2) Every person guilty of an offence against this Act for which no penalty is expressly provided shall be liable to a penalty of not more than $300.

Penalty for dismissal of employes in certain cases. No. 6283 s. 204.

101. Every employer who dismisses from his employment any employe by reason merely of the fact that the employe—

(a) is a member of a Board established under this Act; {b) has


{b) has after having given reasonable notice to his employer of his intention absented himself from work through being engaged on duties as a member of a Board established under this Act;

(c) has given information with regard to matters under this Act to an inspector—

shall be liable to a penalty of not more than $500 for each employe so dismissed.

Regulations. No. 6283 s. 206.

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

(a) the conditions of employment of the President, Deputy-president, members of the Commission and chairmen of Boards;

{b) the salaries, expenses and allowances payable to members of the Commission and of Conciliation and Arbitration Boards;

(c) the procedure of the Commission and of Boards; {d) prescribing penalties not exceeding $200 for any breach

of the regulations; ie) the particulars to be entered in records and books to

be kept under this Act; ( / ) forms for the purposes of this Act; (g) generally any matter or thing which is by this Act

authorized or required to be prescribed for carrying this Act into effect.

(2) Forms prescribed by the regulations or forms to the Uke Foms effect shall be sufficient in law. silffi iiSt"" **

103. The Labour and Industry Act 1958 is hereby amended as follows:

(a) In section 3 (5) the words "or in the determination of a Wages Board" are repealed;

{b) In section 53 (3) for the words "Industrial Appeals Court" there shall be substituted the words "the Industrial Relations Commission within the meaning of the Industrial Relations Act 1979 in Court session";

(c) In section 186 (1) ( / ) for the words "a Wages Board has been appointed" there shall be substituted the words "an award has been made";

(d) In section 201 (1)— (i) the word "or" (where fourth occurring) is repealed;

and (ii) the

Consequential amendment of No. 6283.


(ii) the word "determination" (where twice occurring) is repealed; and

(e) at the end of the Second Schjedule there shall be inserted the item —"12. The Industrial Relations Act 1979".

Consequential 104. The Industrial Training Act 1975 is hereby amended as amendment of r- . . No. 8706. lOlIOWS:

(a) In section 4 after the word "Court" there shall be inserted the words "or of the Industrial Relations Commission";

(b) In section 34 (4) in the proviso after the words "such terms and conditions" there shall be inserted the words "the Industrial Relations Commission";

(c) In section 53 for the expression "section 47 of the Labour and Industry Act 1958" there shall be substituted the expression "section 21 of the Industrial Relations Act 1979";

{d) In section 54 for the words "Industrial Appeals Cour t" there shall be substituted the words "Industrial Relations Commission of Victoria";

(e) In section 56— (i) in sub-section (1) paragraphs (ni) and {p) are

repealed; and (ii) in sub-section (2) paragraph (c) is repealed.

Consequential 105. Thc BuHdlng Industry Long Service Leave Act 1975 is ?to!"8693?' ° hereby amended as follows:

(a) In section 2 (1) in the interpretation of "award" for paragraph (a) there shall be substituted the following paragraph:

"(a) an award made or agreement registered under the Industrial Relations Act 1979;";

{b) In section 3 for the expression " Labour and Industry Act 1958" there shall be substituted the expression "Industrial Relations Act 1979";

(c) In section 33 (4) for the words "Industrial Appeals Court" thjre shall be substituted the words "Industrial Relations Commission of Victoria";

id) In section 34—

(i) for the words "Industrial Appeals Court" (wherever occurring) there shall be substituted the words "Industrial Relations Commission of Victoria"; and

(ii) in sub-section (2) for the expression "Labour and Industry Act 1958" there shall be substituted the expression "Industrial Relations Act 1979".

SCHEDULE

1979 Industrial Relations No. 9365

SCHEDULE

Number of Act. Title of Act. Extent of Repeal.

753

S. 2

6283 Labour and Industry Part III.—the whole. Act 1958 Part V.—Division 3.

Part VIII.—sections 122 (1) 128, 129, 133, 134, and Di vision 3 and Division 4.

Part X.—section 186 (1) paragraph (6), sections 189, 190. 192 (1) paragraphs («•), {ga), (h), ( i ) . section 192 (2), sections 193, 197, 198, 199, 200, 202, 204, section 206 (1) paragraph (a) and paragraph {aa).

By Authority : F^D. Atkinson, Government Printer, Melbourne

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