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This is a Bill, not an Act. For current law, see the Acts databases.


CONTRACTUAL BENEFITS BILL 2007

                    Western Australia


      Contractual Benefits Bill 2007

                       CONTENTS


      Part 1 -- Preliminary
1.    Short title                                         2
2.    Commencement                                        2
3.    Terms used in this Act                              2
      Part 2 -- Claims in respect of
           contractual benefits
4.    Jurisdiction of IR Commission                       5
5.    Constitution of IR Commission                       5
6.    Referral of claim                                   5
7.    Parties to proceedings                              6
8.    Applied provisions of IR Act                        6
9.    Conciliation                                        8
10.   Compulsory attendance at conciliation               9
11.   Settlement of claim or part of claim               10
12.   Determination of claim where no resolution by
      conciliation                                       10
13.   Costs                                              11
14.   Claims on behalf of government officers            11
15.   Enforcement of orders in industrial magistrate's
      court                                              12
16.   Effect of other proceedings                        13
17.   Transfer of claim                                  13
18.   Act does not derogate from IR Act                  14
      Part 3 -- Regulations
19.   Regulations                                        15




                         240--1                           page i
Contractual Benefits Bill 2007



Contents



              Part 4 -- Consequential amendments
              Division 1 -- Amendments to Industrial
                    Relations Act 1979
      20.     The Act amended                           16
      21.     Section 81CA amended                      16
              Division 2 -- Amendments to Occupational
                    Safety and Health Act 1984
      22.     The Act amended                           16
      23.     Section 51K amended                       16
              Defined Terms




page ii
                           Western Australia


                     LEGISLATIVE ASSEMBLY



             Contractual Benefits Bill 2007


                               A Bill for


An Act to --
•  confer jurisdiction on The Western Australian Industrial
   Relations Commission to determine claims by employees of
   constitutional corporations; and
•  amend the Industrial Relations Act 1979; and
•  amend the Occupational Safety and Health Act 1984.



The Parliament of Western Australia enacts as follows:




                                                              page 1
     Contractual Benefits Bill 2007
     Part 1         Preliminary

     s. 1



                              Part 1 -- Preliminary
     1.         Short title
                This is the Contractual Benefits Act 2007.

     2.         Commencement
 5              This Act comes into operation as follows:
                 (a) sections 1 and 2 -- on the day on which this Act
                       receives the Royal Assent;
                 (b) the rest of the Act -- on a day fixed by proclamation,
                       and different days may be fixed for different provisions.

10   3.         Terms used in this Act
          (1)   In this Act --
                "Arbitrator" means the IR Commission constituted by a public
                     service arbitrator under the IR Act Part IIA Division 2;
                "claim" means a claim referred under section 6;
15              "commissioner" means a commissioner appointed under the
                     IR Act and includes the Chief Commissioner, the Senior
                     Commissioner and an acting commissioner under that Act;
                "Commonwealth instrument" means --
                     (a) a pre-reform award as defined in the Workplace
20                         Relations Act section 4;
                     (b) an award made under the Workplace Relations Act
                           section 539;
                     (c) a notional agreement preserving State awards as
                           defined in the Workplace Relations Act Schedule 8
25                         clause 1;
                     (d) a transitional award as defined in the Workplace
                           Relations Act Schedule 6 clause 2;
                     (e) a workplace agreement as defined in the Workplace
                           Relations Act section 4;


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                                       Contractual Benefits Bill 2007
                                         Preliminary           Part 1

                                                                 s. 3



          (f)   a pre-reform certified agreement as defined in the
                Workplace Relations Act Schedule 7 clause 1;
         (g) a pre-reform AWA as defined in the Workplace
                Relations Act Schedule 7 clause 1;
 5       (h) a preserved State agreement as defined in the
                Workplace Relations Act Schedule 8 clause 1;
          (i) a workplace determination made under the
                Workplace Relations Act Part 9 Division 8;
          (j) the Australian Fair Pay and Conditions Standard
10              within the meaning given to that term by the
                Workplace Relations Act section 171(3);
         (k) the APCS as defined in the Workplace Relations Act
                section 178;
          (l) any other instrument made under, or referred to in,
15              the Workplace Relations Act and prescribed under
                the IR Act section 113 for the purposes of this
                definition;
     "contractual benefit" means a benefit to which an employee is
         entitled under a contract of employment whether --
20       (a) as included in the contract; or
         (b) as an implied condition of employment under the
                Minimum Conditions of Employment Act 1993 or as
                otherwise implied in the contract,
         but does not include a benefit to which an employee is
25       entitled under a Commonwealth instrument;
     "employee" has the meaning given in the Workplace Relations
         Act section 5(1) but does not include a government officer;
     "employer" has the meaning given in paragraph (a) of the
         definition of "employer" in the Workplace Relations Act
30       section 6(1);
     "employment" has the meaning given in the Workplace
         Relations Act section 7;



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     Contractual Benefits Bill 2007
     Part 1         Preliminary

     s. 3



              "government officer" has the meaning given in the IR Act
                  section 80C(1);
              "industrial matter" has the meaning given in the IR Act
                  section 7;
 5            "IR Act" means the Industrial Relations Act 1979;
              "IR Commission" means The Western Australian Industrial
                  Relations Commission continued and constituted under the
                  IR Act;
              "Workplace Relations Act" means the Workplace Relations
10                Act 1996 of the Commonwealth.
        (2)   A reference in this Act to an employee or employer includes a
              reference to a former employee or former employer.
        (3)   For the purposes of this Act, if a person ("the principal") --
               (a) is a corporation to which section 51(xx) of the
15                    Constitution of the Commonwealth applies; and
               (b) engages a person, or a group of persons, under a contract
                      to personally give a performance as, or as part of,
                      musical, theatrical, dance or comic entertainment,
              the principal is to be regarded as the employer of the person, or
20            each person in the group.




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                                                     Contractual Benefits Bill 2007
                           Claims in respect of contractual benefits         Part 2

                                                                               s. 4



          Part 2 -- Claims in respect of contractual benefits
     4.         Jurisdiction of IR Commission
          (1)   The IR Commission has jurisdiction to hear and determine
                claims referred to it under section 6.
 5        (2)   Without limiting the functions of the IR Commission under this
                Act and subject to the provisions of this Act, the IR
                Commission --
                 (a) has the same authority to enquire into and deal with a
                       claim as it has in relation to an industrial matter under
10                     the IR Act section 23(1); and
                 (b) may hear and determine a claim as if the claim were a
                       claim referred to the IR Commission under the IR Act
                       section 28A.

     5.         Constitution of IR Commission
15              For the purposes of this Act, the IR Commission is to be
                constituted by a single commissioner.

     6.         Referral of claim
          (1)   Subject to subsections (2) and (3), an employee may refer to the
                IR Commission under this section a claim that the employee has
20              not been allowed a contractual benefit by his or her employer.
          (2)   An employee cannot refer to the IR Commission a claim in
                respect of a contractual benefit to which the employee is entitled
                as an implied condition of employment under the Minimum
                Conditions of Employment Act 1993 (a "denied MCE benefit")
25              unless the employee also refers to the IR Commission a claim in
                respect of a contractual benefit to which the employee is entitled
                under the same contract of employment that is not a denied
                MCE benefit.
          (3)   A claim cannot be referred to the IR Commission under this
30              section if --


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     Contractual Benefits Bill 2007
     Part 2         Claims in respect of contractual benefits

     s. 7



                 (a)    the refusal or failure to allow the employee the
                        contractual benefit occurred --
                           (i) if the claim is not an industrial matter -- before
                                the commencement of this section; or
 5                        (ii) if the claim is an industrial matter -- before
                                27 March 2006;
                        or
                 (b)    6 years have elapsed since the employer refused or
                        failed to allow the contractual benefit.
10        (4)   The employee must serve a copy of the claim on the employer.

     7.         Parties to proceedings
                Subject to the IR Act section 27(1)(j) (as applied by
                section 8(1)(c)) the parties to proceedings pursuant to a claim
                are --
15                (a) the employee who referred the claim; and
                  (b) the employer on whom or which a copy of the claim is
                        served.

     8.         Applied provisions of IR Act
          (1)   The following provisions (the "applied provisions") of the
20              IR Act apply to and in relation to the performance of functions
                conferred on the IR Commission under this Act --
                  (a) section 22B;
                  (b) section 26(1)(a) and (b), (2) and (3);
                  (c) section 27;
25               (d)    section 28;
                 (e)    section 30;
                  (f)   section 31(1), (2), (3), (5) and (6);
                 (g)    section 32A;
                 (h)    section 33;


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                                                        Contractual Benefits Bill 2007
                              Claims in respect of contractual benefits         Part 2

                                                                                  s. 8



              (i)       section 34;
              (j)       section 35;
             (k)        section 36;
              (l)       section 49(1), (2), (2a) and (3) to (12);
 5          (m)         section 90;
             (n)        section 91;
             (o)        section 92.
     (2)   The IR Act sections 3, 16, 16A, 17 and 104 apply to and in
           relation to this Act as if a reference in those sections to "this
10         Act" included a reference to this Act.
     (3)   The applied provisions and the provisions referred to in
           subsection (2) have effect --
             (a)        subject to the provisions of this Act; and
             (b)        with the modifications that are provided for in
15                      subsection (4); and
             (c)        for the provisions referred to in subsection (1)(a) to (k),
                        with any other modifications that the IR Commission
                        determines to be necessary or appropriate.
     (4)   For the purposes of subsection (1) --
20          (a) the IR Act section 31(1) has effect as if paragraph (c)
                   were deleted and the following paragraph were inserted
                   instead --
                    "
                        (c)     by a legal practitioner;
25                                                                                 ";
                        and
             (b)        the IR Act section 33(6) has effect as if "section 44"
                        were deleted and the following inserted instead --
                        " the Contractual Benefits Act 2007 section 10 ";
30                      and



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     Contractual Benefits Bill 2007
     Part 2         Claims in respect of contractual benefits

     s. 9



                 (c)       the IR Act section 90(1) has effect as if paragraph (a)
                           were deleted and the following paragraph were inserted
                           instead --
                       "
 5                         (a)   on the ground that the decision is in excess of
                                 jurisdiction;
                                                                                     ".

     9.         Conciliation
          (1)   Subject to section 12(1), the IR Commission must endeavour to
10              resolve a claim by conciliation.
          (2)   In endeavouring to resolve a claim by conciliation the IR
                Commission --
                  (a) must do all such things as appear to it to be right and
                       proper to assist the parties to reach agreement on terms
15                     for the settlement of the claim; and
                 (b)       for that purpose may --
                              (i) arrange conferences of the parties or their
                                   representatives presided over by the IR
                                   Commission; and
20                           (ii) arrange for the parties or their representatives to
                                   confer amongst themselves at a conference at
                                   which the IR Commission is not present; and
                            (iii) otherwise encourage the parties to exchange or
                                   divulge attitudes or information that in the
25                                 opinion of the IR Commission will assist in the
                                   settlement of the claim.
          (3)   The IR Commission may give any direction or make any order
                or declaration that the IR Commission thinks expedient for the
                purposes of this section.
30        (4)   If the IR Commission gives or makes a direction, order or
                declaration under subsection (3) the IR Commission must --



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                                                       Contractual Benefits Bill 2007
                             Claims in respect of contractual benefits         Part 2

                                                                                   s. 10



                   (a)   if it is given or made orally, reduce the direction, order
                         or declaration to writing as soon as is practicable; and
                  (b)    make the text of the direction, order or declaration
                         available to the parties as soon as is practicable after it is
 5                       given or made.
           (5)   A direction, order or declaration made or given under
                 subsection (3) binds only the parties to the relevant conciliation
                 proceeding.
           (6)   A conciliation proceeding must be held in private and only
10               persons specified by the IR Commission, or agreed to by the
                 parties, may be present.
           (7)   If the parties request the IR Commission to make
                 recommendations about particular aspects of the claim about
                 which they are unable to reach agreement, the IR Commission
15               may make recommendations about those aspects of the claim.
           (8)   A direction, order or declaration given or made under
                 subsection (3) is enforceable under the IR Act section 84A as if
                 it were given or made under the IR Act section 32.

     10.         Compulsory attendance at conciliation
20         (1)   Subject to this section, the IR Commission may summon any
                 person to attend, at a time and place specified in the summons,
                 at conciliation proceedings under section 9.
           (2)   A summons under this section --
                  (a) may be given in the manner prescribed by regulations
25                     made under the IR Act section 113; and
                  (b) when so given, is to be taken, in any proceedings
                       relating to the summons, to have been served on the
                       person to whom it is directed unless that person, in those
                       proceedings, satisfies the IR Commission or the Full
30                     Bench (as defined in the IR Act section 7(1)), as the case
                       may be, that he or she did not receive the summons.


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     Contractual Benefits Bill 2007
     Part 2         Claims in respect of contractual benefits

     s. 11



           (3)   Any person so summoned must, except for good cause, proof of
                 which is on that person, attend the conciliation proceedings at
                 the time and place specified in the summons and continue to
                 attend at that place as directed by the IR Commission.
 5         (4)   The requirement to attend imposed by subsection (3) is
                 enforceable in accordance with section 9(8) as if it were a
                 direction, order or declaration referred to in that provision.

     11.         Settlement of claim or part of claim
                 Where at conciliation under section 9 --
10                (a) agreement is reached between the parties in relation to
                       any aspect of the claim; and
                  (b) the parties consent to the making of an order under this
                       section,
                 the IR Commission may make an order in terms of that
15               agreement binding on the parties.

     12.         Determination of claim where no resolution by conciliation
           (1)   The IR Commission may hear and determine a claim if it is of
                 the opinion that --
                   (a) reasonable attempts to settle the claim by conciliation
20                       have been, or are likely to be, unsuccessful; or
                  (b)    although there has been no attempt to settle the claim by
                         conciliation, any attempt is likely to be unsuccessful.
           (2)   Subject to subsection (4), the IR Commission may, for the
                 hearing and determination of the claim, be constituted by a
25               commissioner who exercised conciliation powers in relation to
                 the claim.
           (3)   If the commissioner referred to in subsection (2) proposes to
                 constitute the IR Commission for the purpose mentioned in that
                 subsection, the commissioner must, at the conclusion of the
30               conciliation advise the parties of his or her intention to do so.


     page 10
                                                       Contractual Benefits Bill 2007
                             Claims in respect of contractual benefits         Part 2

                                                                                  s. 13



           (4)   If, before the hearing commences, a party objects to the
                 IR Commission being constituted as proposed under
                 subsection (3), the commissioner must not constitute the IR
                 Commission for the hearing and determination of the claim.
 5         (5)   The commissioner is not taken to have exercised conciliation
                 powers in relation to a claim merely because --
                   (a) the commissioner arranged for a conference of the
                        parties or their representatives to be presided over by the
                        commissioner, but the conference did not take place or
10                      was not presided over by the commissioner; or
                  (b) the commissioner arranged for the parties or their
                        representatives to confer among themselves at a
                        conference at which the commissioner was not present.

     13.         Costs
15               Despite the IR Act section 27(1)(c) (as applied by
                 section 8(1)(c)), on hearing and determining a claim the
                 IR Commission may make an order giving costs to any party to
                 the proceedings for the services of a legal practitioner or agent
                 of that party if, in the opinion of the IR Commission, the
20               proceedings were frivolously or vexatiously instituted or
                 defended, as the case requires, by the party against whom or
                 which the order is made.

     14.         Claims on behalf of government officers
           (1)   By this section the Arbitrator has jurisdiction to enquire into and
25               deal with a claim that may be made under this section.
           (2)   Subject to subsections (3) and (4), a person who can refer an
                 industrial matter under the IR Act section 80F(1) may refer to
                 the Arbitrator under this section a claim that a government
                 officer has not been allowed a contractual benefit by his or her
30               employer.
           (3)   A claim in respect of a contractual benefit cannot be referred
                 under this section unless the claim is an industrial matter.

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     Contractual Benefits Bill 2007
     Part 2         Claims in respect of contractual benefits

     s. 15



           (4)   A claim in respect of a contractual benefit to which a
                 government officer is entitled as an implied condition of
                 employment under the Minimum Conditions of Employment
                 Act 1993 (a "denied MCE benefit") cannot be referred under
 5               this section unless the claimant also refers a claim in respect of
                 a contractual benefit to which the government officer is entitled
                 under the same contract of employment that is not a denied
                 MCE benefit.
           (5)   A claim cannot be referred under this section if --
10                (a) the refusal or failure to allow the government officer the
                        contractual benefit occurred before 27 March 2006;
                        or
                  (b) 6 years have elapsed since the employer refused or
                        failed to allow the contractual benefit.
15         (6)   In relation to a claim referred under this section the Arbitrator
                 has all of the functions he would have if the claim were an
                 industrial matter referred to the Arbitrator under the IR Act
                 section 80E, and the provisions of the IR Act apply accordingly.

     15.         Enforcement of orders in industrial magistrate's court
20         (1)   In this section --
                 "order" means --
                      (a) an order made by the IR Commission under
                             section 11, 12 or 13; or
                      (b) an order made by the Arbitrator under section 14.
25         (2)   An order is an instrument to which the IR Act section 83
                 applies.
           (3)   For the purposes of subsection (2), the IR Act sections 82A, 83,
                 83A, 83C, 83F, 84, 90, 91 and 92 have effect --
                   (a) with the modifications that are provided for in
30                       subsection (4); and



     page 12
                                                            Contractual Benefits Bill 2007
                                  Claims in respect of contractual benefits         Part 2

                                                                                     s. 16



                  (b)       for sections 82A, 83, 83A, 83C and 83F, with any other
                            modifications that the industrial magistrate's court
                            determines to be necessary or appropriate.
           (4)   For the purposes of subsection (2) the IR Act section 83(1) has
 5               effect as if paragraphs (b) to (f) were deleted and the following
                 paragraphs were inserted instead --
                        "
                            (b)     a party to the proceeding in respect of which
                                    the order was made;
10                          (c)     an organisation --
                                       (i) that is registered under the IR Act
                                            Part II Division 4; or
                                      (ii) as defined in the Workplace Relations
                                            Act section 4(1),
15                                  in which the employee in relation to whom the
                                    order is made is eligible to be enrolled as a
                                    member or an association that represents such
                                    an organisation.
                                                                                       ".

20   16.         Effect of other proceedings
                 The IR Commission must not deal with a claim if proceedings
                 in respect of the subject matter of the claim have already been
                 commenced under another law of the State or Commonwealth
                 unless those proceedings --
25                 (a) have been discontinued; or
                   (b) have failed for want of jurisdiction.

     17.         Transfer of claim
           (1)   If the IR Commission decides that it has jurisdiction under the
                 IR Act to determine a claim made under this Act and that it
30               would be appropriate to do so in the circumstances, the
                 IR Commission may order that the claim be dealt with under
                 that Act.

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     Contractual Benefits Bill 2007
     Part 2         Claims in respect of contractual benefits

     s. 18



           (2)   If the IR Commission makes an order under subsection (1) in
                 relation to a claim --
                   (a) the claim is taken to have been referred to it under the
                          IR Act; and
 5                 (b) any proceedings under this Act in relation to the claim
                          are taken to be proceedings under the IR Act.

     18.         Act does not derogate from IR Act
                 The functions conferred on the IR Commission under this Act
                 are in addition to, and do not derogate from, any function of the
10               IR Commission under the IR Act.




     page 14
                                                      Contractual Benefits Bill 2007
                                                        Regulations           Part 3

                                                                                s. 19



                               Part 3 -- Regulations
     19.         Regulations
           (1)   Regulations may be made under the IR Act section 113
                 prescribing any matter that is required or permitted by this Act
 5               to be prescribed, or that is necessary or convenient to be
                 prescribed for giving effect to the purposes of this Act.
           (2)   Without limiting subsection (1), regulations may be made under
                 the IR Act regulating the practice and procedure to be followed
                 in relation to the referral, bringing, hearing and determination of
10               claims and appeals under this Act.




                                                                             page 15
     Contractual Benefits Bill 2007
     Part 4         Consequential amendments
     Division 1     Amendments to Industrial Relations Act 1979
     s. 20



                 Part 4 -- Consequential amendments
           Division 1 -- Amendments to Industrial Relations Act 1979
     20.       The Act amended
               The amendments in this Division are to the Industrial Relations
 5             Act 1979.

     21.       Section 81CA amended
               Section 81CA(1) is amended in the definition of "general
               jurisdiction" by inserting after paragraph (b) --
                       "
10                           or
                       (c)   section 15 of the Contractual Benefits
                             Act 2007;
                                                                             ".

      Division 2 -- Amendments to Occupational Safety and Health
15                           Act 1984
     22.       The Act amended
               The amendments in this Division are to the Occupational Safety
               and Health Act 1984.

     23.       Section 51K amended
20             Section 51K(4)(a) and "and" after it are deleted and the
               following is inserted instead --
                   "
                       (a)   an employee has referred to the Commission a
                             claim of the kind described in --
25                             (i) section 28A of the Industrial Relations
                                    Act 1979; or




     page 16
                                           Contractual Benefits Bill 2007
                              Consequential amendments             Part 4
    Amendments to Occupational Safety and Health Act 1984     Division 2
                                                                     s. 23



                       (ii)   section 6(1) of the Contractual Benefits
                              Act 2007;
                      and
                                                                         ".

5




                                                                  page 17
Contractual Benefits Bill 2007



Defined Terms




                                           Defined Terms
           [This is a list of terms defined and the provisions where they are defined.
                                  The list is not part of the law.]
      Defined Term                                                                                         Provision(s)
      applied provisions ....................................................................................... 8(1)
      Arbitrator .................................................................................................... 3(1)
      claim........................................................................................................... 3(1)
      commissioner .............................................................................................. 3(1)
      Commonwealth instrument.......................................................................... 3(1)
      contractual benefit ....................................................................................... 3(1)
      denied MCE benefit........................................................................... 6(2), 14(4)
      employee..................................................................................................... 3(1)
      employer ..................................................................................................... 3(1)
      employment ................................................................................................ 3(1)
      government officer ...................................................................................... 3(1)
      industrial matter .......................................................................................... 3(1)
      IR Act ......................................................................................................... 3(1)
      IR Commission ........................................................................................... 3(1)
      order ..........................................................................................................15(1)
      the principal ................................................................................................ 3(3)
      Workplace Relations Act ............................................................................. 3(1)




 


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