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This is a Bill, not an Act. For current law, see the Acts databases.
Western Australia
Industrial and Related Legislation
Amendment Bill 2007
CONTENTS
Part 1 -- Preliminary
1. Short title 2
2. Commencement 2
Part 2 -- Amendments to the
Industrial Relations Act 1979
3. The Act amended 3
4. Section 6 amended 3
5. Section 7 amended 3
6. Section 8 amended 5
7. Section 14 amended 5
8. Section 16 amended 5
9. Section 25 amended 6
10. Sections 28A and 28B inserted 6
28A. Claims for denied contractual benefits 6
28B. Commission must not act, or can refuse to
act, in certain circumstances 9
11. Section 29 amended 9
12. Section 29AA amended 10
13. Section 29AB inserted 10
29AB. Transfer of claim 10
14. Section 29A amended 10
15. Section 31 amended 11
16. Section 50A amended 11
17. Section 80ZF replaced 12
80ZF. Terms used in this Part 12
18. Section 80ZGA inserted 12
80ZGA. Joint proceedings with other industrial
authorities 12
238--2 page i
Industrial and Related Legislation Amendment Bill 2007
Contents
19. Section 80ZI amended 14
20. Section 81AA replaced 14
81AA. Jurisdiction under other Acts 14
21. Section 81CA amended 14
22. Section 83E amended 15
23. Section 85 amended 15
24. Section 93 amended 16
25. Section 96 amended 17
26. Section 98 amended 17
27. Sections 98A, 98B and 98C inserted 18
98A. Identity card 18
98B. Staff 19
98C. Designation of officers, generally 19
28. Section 113 amended 20
Part 3 -- Amendments to the
Magistrates Court (Civil
Proceedings) Act 2004
29. The Act amended 22
30. Section 3 amended 22
31. Section 23 amended 22
32. Section 26 amended 22
33. Part 4A inserted 23
Part 4A -- Employment-related claims procedure
Division 1 -- Preliminary
33A. Meaning of terms used in this Part 23
33B. Application of Part 24
33C. Decision of Court about whether claim is
an employment-related claim 24
Division 2 -- Mediation
33D. Assignment of mediator 25
33E. Attendance and participation in mediation 26
33F. Representation of parties 26
33G. No fees or costs for mediation 27
33H. Mediator may file certificate 27
Division 3 -- Proceedings in Court
33I. Application 27
33J. Representation of parties 27
33K. Employment-related claims procedure 27
33L. Costs 28
33M. Rules of court for employment-related
proceedings 28
34. Section 34 amended 29
page ii
Industrial and Related Legislation Amendment Bill 2007
Contents
35. Section 36 amended 29
Part 4 -- Amendments to the
Children and Community
Services Act 2004
36. The Act amended 31
37. Part 7 heading amended 31
Part 7 -- Prohibitions and limitations on certain
kinds of employment of children
38. Part 8 inserted 31
Part 8 -- Other protections for children
in employment
Division 1 -- Preliminary
197. Terms used in this Part 31
198. Affected employers and employment 32
199. Applied provisions of the IR Act 33
Division 2 -- Minimum conditions of employment
for children
Subdivision 1 -- Affected employers to provide
minimum conditions of employment for
children
200. Affected employers to provide minimum
conditions of employment for children 35
201. Determination of comparable award by
Registrar 36
202. Affected employers to display comparable
State awards at workplaces 37
203. Requirements relating to keeping records 37
204. Access to records 38
205. Enforcement of sections 200, 202, 203
and 204 39
Subdivision 2 -- Compliance notices
206. Issue of compliance notices 40
207. Compliance notices may include
directions 40
208. Withdrawal of compliance notices 41
209. Withdrawal of compliance notice does not
prevent issue of another notice 41
210. Proceedings not affected by compliance
notices 42
Subdivision 3 -- Proceedings in the IR Commission
and industrial magistrate's court
211. Conferral of jurisdiction on IR Commission 42
page iii
Industrial and Related Legislation Amendment Bill 2007
Contents
212. Jurisdiction to be exercised by
commissioner with necessary
qualifications 42
213. Applications to IR Commission alleging
contraventions of section 200(1) 42
214. Parties to proceedings 43
215. Applied provisions of IR Act: practice,
procedure and appeals 44
216. Determination of application where no
resolution by conciliation 44
217. Costs of representation may be awarded
in certain circumstances 46
218. Enforcement of orders in industrial
magistrate's court 46
Division 3 -- Unfair dismissal and denial of
contractual benefits
219. Terms used in this Division 47
220. Conferral of jurisdiction on IR Commission 48
221. Jurisdiction to be exercised by
commissioner with necessary
qualifications 48
222. Claims referred to IR Commission of
unfair dismissal and denial of contractual
benefit 48
223. Parties to proceedings 50
224. Applied provisions of IR Act: practice,
procedure and appeals 50
225. Determination of claim where no
resolution by conciliation 50
226. Costs of representation may be awarded
in certain circumstances 52
227. Enforcement of orders in industrial
magistrate's court 52
Division 4 -- Unpaid work on a trial basis
228. Obligations of persons engaging children
to carry out unpaid work 53
229. Enforcement of section 228 54
230. Conferral of jurisdiction on IR Commission 54
231. Jurisdiction to be exercised by
commissioner with necessary
qualifications 54
232. Applications to IR Commission alleging
contravention of section 228 55
232A. Parties to proceedings 55
232B. Applied provisions of IR Act: practice,
procedure and appeals 56
232C. Determination of application where no
resolution by conciliation 56
page iv
Industrial and Related Legislation Amendment Bill 2007
Contents
232D. Costs of representation may be awarded
in certain circumstances 58
232E. Enforcement of orders in industrial
magistrate's court 58
Division 5 -- Conciliation
232F. Conciliation 59
232G. Compulsory attendance at conciliation 61
Division 6 -- General
232H. Obstruction of industrial inspectors 62
232I. Civil penalties 62
232J. Effect of other proceedings 62
232K. Transfer of claim 62
232L. Part does not derogate from IR Act 63
232M. Part 7 not limited 63
Part 5 -- Amendments to the
Occupational Safety and Health
Act 1984
39. The Act amended 64
40. Section 35D amended 64
41. Section 51G amended 64
42. Section 51J amended 65
43. Part VIII Division 1 and Part VIII Division 2
heading inserted 65
Division 1 -- Preliminary
56AA. Terms used in this Part 65
56AB. Bullying 66
Division 2 -- Discrimination
44. Section 56 amended 67
45. Sections 56A and 56B inserted 69
56A. Claim may be referred to the Tribunal 69
56B. Remedies that may be granted 70
46. Part VIII Division 3 and Part VIII Division 4
heading inserted 71
Division 3 -- Bullying
56C. Claims of bullying may be referred to the
Tribunal 71
56D. Compulsory attendance at conciliation for
claims of bullying 72
56E. Several claims may be heard together 73
56F. Remedies that may be granted 74
56G. Costs of representation may be awarded
in certain circumstances 75
page v
Industrial and Related Legislation Amendment Bill 2007
Contents
Division 4 -- General
Part 6 -- Amendments to the
Workers' Compensation and
Injury Management Act 1981
Division 1 -- Preliminary
47. The Act amended 76
Division 2 -- Amendments relating to
reinstatement of employment
48. Section 84AA amended 76
49. Section 84AB amended 76
50. Section 84AC inserted 76
84AC. Enforcement of sections 84AA(1) and
84AB(1) 76
51. Part IIIA inserted 77
Part IIIA -- Proceedings for reinstatement of
employment
84AD. Terms used in this Part 77
84AE. Conferral of jurisdiction on IR Commission 78
84AF. Jurisdiction to be exercised by
commissioner with necessary
qualifications 78
84AG. Applied provisions: practice, procedure
and appeals 78
84AH. Application to IR Commission for
reinstatement order 80
84AI. Parties to proceedings 81
84AJ. Conciliation 81
84AK. Compulsory attendance at conciliation 83
84AL. Determination of application where no
resolution by conciliation 84
84AM. Referral of question as to worker's
capacity for work for determination by
arbitrator 87
84AN. Proceedings, functions, practice and
procedure of arbitrators 88
84AO. Conferral of jurisdiction on industrial
magistrate's court 88
84AP. Application to enforce reinstatement or
compensation order 88
84AQ. Applied provisions: practice, procedure
and appeals 89
84AR. Other rights of workers not limited 90
84AS. Part does not derogate from IR Act 90
page vi
Industrial and Related Legislation Amendment Bill 2007
Contents
Division 3 -- Other amendments
52. Section 5 amended 90
53. Section 83 amended 91
54. Schedule 1 amended 91
Part 7 -- Amendments to the
Minimum Conditions of
Employment Act 1993
55. The Act amended 92
56. Section 7 amended 92
Part 8 -- Amendments to Public
Sector Management Act 1994
57. The Act amended 93
58. Section 52 amended 93
59. Section 78 amended 93
page vii
Western Australia
LEGISLATIVE ASSEMBLY
(As amended during consideration in detail)
Industrial and Related Legislation
Amendment Bill 2007
A Bill for
An Act to amend --
• the Industrial Relations Act 1979; and
• the Magistrates Court (Civil Proceedings) Act 2004; and
• the Children and Community Services Act 2004; and
• the Occupational Safety and Health Act 1984; and
• the Workers' Compensation and Injury Management Act 1981;
and
• the Minimum Conditions of Employment Act 1993; and
• the Public Sector Management Act 1994.
The Parliament of Western Australia enacts as follows:
page 1
Industrial and Related Legislation Amendment Bill 2007
Part 1 Preliminary
s. 1
Part 1 -- Preliminary
1. Short title
This is the Industrial and Related Legislation Amendment
Act 2007.
5 2. Commencement
This Act comes into operation as follows:
(a) Part 1 -- on the day on which this Act receives the
Royal Assent;
(b) the rest of the Act -- on a day fixed by proclamation,
10 and different days may be fixed for different provisions.
page 2
Industrial and Related Legislation Amendment Bill 2007
Amendments to the Industrial Relations Act 1979 Part 2
s. 3
Part 2 -- Amendments to the Industrial Relations
Act 1979
3. The Act amended
The amendments in this Part are to the Industrial Relations
5 Act 1979.
4. Section 6 amended
Section 6 is amended as follows:
(a) by inserting after "The principal objects of this Act
are" --
10 " as follows ";
(b) by inserting after paragraph (ca) --
"
(cb) to provide remedies for breaches of contracts of
employment;
15 ";
(c) by deleting "and" after paragraph (f).
5. Section 7 amended
(1) Section 7(1) is amended as follows:
(a) by deleting the definitions of "deputy registrar",
20 "industrial inspector" and "Registrar" and inserting
instead --
"
"deputy registrar" means a person designated as a
deputy registrar under this Act;
25 "industrial inspector" means a person designated as
an industrial inspector under this Act;
"Registrar" means the chief executive officer of the
Registrar's Department or, if another person is
designated as the Registrar under this Act, that
30 person;
";
page 3
Industrial and Related Legislation Amendment Bill 2007
Part 2 Amendments to the Industrial Relations Act 1979
s. 5
(b) by inserting in the appropriate alphabetical positions --
"
"CEO" means the chief executive officer of the
Department;
5 "Department" means the department of the Public
Service principally assisting the Minister in the
administration of this Act;
"departmental officer" means a person employed in
the Department as referred to in section 98B(2);
10 "officer of the Commission" means --
(a) the Registrar, a deputy registrar or any other
Registrar's Department officer assisting the
Commission in the performance of its
functions; or
15 (b) an officer appointed under section 93(1a);
"officer of the Court" means the clerk of the Court or
any other Registrar's Department officer assisting
the Court in the performance of its functions;
"Registrar's Department" means the department of
20 the Public Service known as the Department of the
Registrar Western Australian Industrial Relations
Commission;
"Registrar's Department officer" means a person
employed in the Registrar's Department as
25 referred to in section 98B(2);
".
(2) Section 7(7) is amended by deleting "section 29(1)(b)(ii)" and
inserting instead --
" section 28A ".
page 4
Industrial and Related Legislation Amendment Bill 2007
Amendments to the Industrial Relations Act 1979 Part 2
s. 6
6. Section 8 amended
Section 8(2)(d) is amended by inserting after "this Act" --
"
and any other Act under which the Commission
5 exercises jurisdiction
".
7. Section 14 amended
Section 14(2) is amended by deleting "this Act" and inserting
instead --
10 " this or any other Act ".
8. Section 16 amended
(1) Section 16(1ab) is repealed and the following subsection is
inserted instead --
"
15 (1ab) Subject to this Act, the Chief Commissioner may --
(a) allocate and reallocate the work of the
Commission; and
(b) assign or appoint commissioners for the
purposes of constituting the Commission, or
20 altering the constitution of the Commission, in
relation to a matter in respect of which
jurisdiction is conferred on the Commission
under this or another Act; and
(c) assign commissioners for the purpose of acting
25 as mediators under the Magistrates Court (Civil
Proceedings) Act 2004 Part 4A.
".
(2) Section 16(2)(b) is amended by inserting after "this Act" --
"
30 and, to the extent that the Commission exercises
jurisdiction under any other Act, that Act
".
page 5
Industrial and Related Legislation Amendment Bill 2007
Part 2 Amendments to the Industrial Relations Act 1979
s. 9
9. Section 25 amended
(1) Section 25(1) is amended by deleting "and Divisions 2A to 2G"
and inserting instead --
" , Divisions 2A to 2G and any other Act ".
5 (2) Section 25(2)(a) is amended by deleting "or Division 2A to 2G
under which the Commission is to be" and inserting instead --
"
Divisions 2A to 2G or any other Act under which the
Commission is to be or may be
10 ".
(3) After section 25(2) the following subsection is inserted --
"
(3) Without limiting subsection (1), if the Chief
Commissioner is of the opinion that a claim under
15 section 28A involves an important principle of law or
complex facts or issues, the Chief Commissioner may,
with the consent of the President --
(a) allocate the matter directly to the Full Bench; or
(b) notwithstanding that the Chief Commissioner
20 has allocated the matter to a commissioner or
the Commission in Court Session, revoke that
allocation and allocate the matter directly to the
Full Bench.
".
25 10. Sections 28A and 28B inserted
After section 28 the following sections are inserted --
"
28A. Claims for denied contractual benefits
(1) In this section --
30 "contractual benefit" means a benefit to which an
page 6
Industrial and Related Legislation Amendment Bill 2007
Amendments to the Industrial Relations Act 1979 Part 2
s. 10
employee is entitled under a contract of
employment whether --
(a) as included in the contract; or
(b) as an implied condition of employment
5 under the MCE Act or as otherwise implied
in the contract.
(2) Subject to subsection (3) and section 28B, a claim that
an employee has not been allowed a contractual benefit
by his or her employer, not being a benefit under an
10 award or order, irrespective of whether or not the claim
is an industrial matter, may be referred to the
Commission by --
(a) an employee; or
(b) an organisation in which the employee is
15 eligible to be enrolled as a member or an
association that represents such an organisation.
(3) A claim cannot be referred to the Commission in
respect of a contractual benefit to which the employee
is entitled as an implied condition of employment
20 under the MCE Act (a "denied MCE benefit") unless
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 is also
referred to the Commission.
25 (4) Without limiting the other powers of the Commission
under this section and section 28B, on a referral under
this section of a claim that is not an industrial matter --
(a) the Commission may treat the claim as if the
claim were an industrial matter; and
30 (b) a reference in this Act to an industrial matter is
to be taken to include a reference to the claim.
(5) Without limiting the other powers of the Commission
under this Act, on a referral under this section the
page 7
Industrial and Related Legislation Amendment Bill 2007
Part 2 Amendments to the Industrial Relations Act 1979
s. 10
Commission may do any one or more of the
following --
(a) hear and determine any set-off or counterclaim
by an employer;
5 (b) make an order for the payment of a sum of
money --
(i) found by the Commission to be owing
by one party to another party; or
(ii) by way of damages (including
10 exemplary damages and damages in the
nature of interest); or
(iii) by way of restitution;
(c) make an order in the nature of an order for
specific performance of the relevant contract;
15 (d) order a party to do, or to refrain from doing,
something.
(6) This section applies in respect of a contract of
employment whether the contract was entered into
before or after the commencement of the Industrial and
20 Related Legislation Amendment Act 2007 section 10.
(7) A claim that is not an industrial matter cannot be
referred under this section if the refusal or failure to
allow the employee the contractual benefit occurred
before the commencement of the Industrial and
25 Related Legislation Amendment Act 2007 section 10.
(8) A claim made under section 29(1)(b)(ii) that is not
finalised before the commencement of the Industrial
and Related Legislation Amendment Act 2007
section 11 may be dealt with as if it were a claim under
30 this section.
page 8
Industrial and Related Legislation Amendment Bill 2007
Amendments to the Industrial Relations Act 1979 Part 2
s. 11
28B. Commission must not act, or can refuse to act, in
certain circumstances
(1) The Commission must not act in relation to a claim
referred under section 28A if the matter that is the
5 subject of the claim is the subject of proceedings, or
has already been settled as a result of proceedings,
under this Act or another law of the State or the
Commonwealth.
(2) The Commission may, at any time after a claim has
10 been referred under section 28A, decide to take no
action on the claim, or to suspend or discontinue any
proceeding on the claim, if the Commission is of the
opinion that --
(a) the claim should be resolved in some other
15 manner; or
(b) there is some other reasonable cause that
justifies a decision not to proceed with, or to
suspend or discontinue, the proceeding.
".
20 11. Section 29 amended
(1) Section 29(1)(b) is deleted and the following paragraph is
inserted instead --
"
(b) in the case of a claim by an employee that the
25 employee has been harshly, oppressively or
unfairly dismissed from employment -- by the
employee.
".
(2) Section 29(2) is amended by deleting "subsection (1)(b)(i)" and
30 inserting instead --
" subsection (1)(b) ".
page 9
Industrial and Related Legislation Amendment Bill 2007
Part 2 Amendments to the Industrial Relations Act 1979
s. 12
(3) Section 29(3) is amended by deleting "subsection (1)(b)(i)" and
inserting instead --
" subsection (1)(b) ".
12. Section 29AA amended
5 Section 29AA(3), (4) and (5) are repealed.
13. Section 29AB inserted
After section 29AA the following section is inserted --
"
29AB. Transfer of claim
10 (1) If the Commission decides that it has jurisdiction under
another written law to determine a claim made under
this Act and that it would be appropriate to do so in the
circumstances, the Commission may order that the
claim be dealt with under the other written law.
15 (2) If the Commission makes an order under subsection (1)
in respect of a claim --
(a) the claim is taken to have been referred to it
under the other written law; and
(b) any proceedings under this Act in relation to
20 the claim are taken to be proceedings under the
other written law.
".
14. Section 29A amended
Section 29A(2a) is repealed and the following subsection is
25 inserted instead --
"
(2a) The Chief Commissioner may, if of the opinion that it
is appropriate to do so in the circumstances, direct that
page 10
Industrial and Related Legislation Amendment Bill 2007
Amendments to the Industrial Relations Act 1979 Part 2
s. 15
the area and scope provisions of the proposed award or
industrial agreement --
(a) need not be published in the Industrial Gazette;
or
5 (b) need not be published at all.
".
15. Section 31 amended
Section 31(1)(c)(ii) is amended by inserting after "Commission
under section" --
10 " 28A or ".
16. Section 50A amended
(1) Section 50A(1) is amended by deleting "before 1 July in each
year" and inserting instead --
" in each calendar year ".
15 (2) Section 50A(5) is amended as follows:
(a) by deleting "1 July in the year it is made" and inserting
instead --
"
the day specified in the order as the day on which it
20 takes effect, being a day that is not earlier than the day
on which the order is made, or if a day is not so
specified, on the day on which the order is published
under section 51BE,
";
25 (b) by deleting "date." and inserting instead --
" day. ".
page 11
Industrial and Related Legislation Amendment Bill 2007
Part 2 Amendments to the Industrial Relations Act 1979
s. 17
17. Section 80ZF replaced
Section 80ZF is repealed and the following section is inserted
instead --
"
5 80ZF. Terms used in this Part
In this Part --
"Australian Commission" includes a reference to a
member of the Australian Commission;
"corresponding authority" means --
10 (a) the Australian Commission; or
(b) any board or court of conciliation or
arbitration or other tribunal, body or persons
having authority under the laws of another
State or a Territory to exercise any power of
15 conciliation or arbitration with reference to
industrial relations; or
(c) any special board constituted under any law
of another State or a Territory relating to
factories; or
20 (d) any other board, court, tribunal or body of
another State or a Territory prescribed for the
purposes of this definition;
"General Order" means a General Order under Part II
Division 3.
25 ".
18. Section 80ZGA inserted
After section 80ZG the following section is inserted --
"
80ZGA. Joint proceedings with other industrial authorities
30 (1) This section applies if --
(a) the Chief Commissioner considers that it is
appropriate to deal with matters relating to a
page 12
Industrial and Related Legislation Amendment Bill 2007
Amendments to the Industrial Relations Act 1979 Part 2
s. 18
proposed General Order before the Commission
in Court Session in proceedings in joint session
with a corresponding authority of another State
or a Territory; and
5 (b) the corresponding authority agrees.
(2) The Chief Commissioner, or another member of the
Commission authorised by the Chief Commissioner to
do so, may, despite anything in this Act --
(a) hear and receive evidence jointly with the
10 corresponding authority; and
(b) confer with the corresponding authority about
the proceedings and the decision to be made in
the proceedings; and
(c) exercise in the presence of --
15 (i) the corresponding authority; and
(ii) the parties to the proceedings; and
(iii) any witnesses summoned by the
corresponding authority,
any of the powers of the Commission in Court
20 Session that are exercisable in relation to
proceedings relating to a General Order, other
than the power to make a General Order.
(3) If, after the proceedings have started, the Chief
Commissioner decides that proceedings should not be
25 held in joint session --
(a) the commissioner participating in the
proceedings must immediately stop
participating; and
(b) the proceedings may continue before the
30 Commission in Court Session.
(4) The commissioner participating in the proceedings
must report any results of the joint session to the
Commission in Court Session.
page 13
Industrial and Related Legislation Amendment Bill 2007
Part 2 Amendments to the Industrial Relations Act 1979
s. 19
(5) The report may be given orally or in writing.
(6) The Commission in Court Session may take all or any
part of the report into account when making a General
Order on a matter to which the report relates.
5 (7) Despite section 26(3), the Commission in Court
Session is not required to notify the parties concerned
about the report or its contents or give the parties an
opportunity to be heard in relation to the report if the
Commission in Court Session is satisfied that before
10 the report was made the parties were given an
opportunity of being heard in relation to the matters
and information in the report.
".
19. Section 80ZI amended
15 Section 80ZI(3) is repealed.
20. Section 81AA replaced
Section 81AA is repealed and the following section is inserted
instead --
"
20 81AA. Jurisdiction under other Acts
In addition to its jurisdiction under this Act, an
industrial magistrate's court has the jurisdiction
conferred on it by or under any other Act.
".
25 21. Section 81CA amended
Section 81CA(1) is amended at the end of the definition of
"general jurisdiction" by inserting --
"
or
page 14
Industrial and Related Legislation Amendment Bill 2007
Amendments to the Industrial Relations Act 1979 Part 2
s. 22
(d) section 84AO of the Workers' Compensation
and Injury Management Act 1981;
".
22. Section 83E amended
5 Section 83E(6a) is repealed and the following subsection is
inserted instead --
"
(6a) Subsection (6)(c) does not apply in the case of a
contravention of a provision mentioned in column 1 of
10 the Table to this subsection of the corresponding Act
mentioned in column 2 of that Table.
Table
s. 8(3), 44(3), 45(1) MCE Act
s. 26(2), 26A(1) Long Service Leave Act 1958
s. 200(1), 202(2), Children and Community
203(2), 203(4), Services Act 2004
204(2), 228(2)
s. 84AA(1), 84AB(1) Workers' Compensation and
Injury Management Act 1981
".
23. Section 85 amended
15 Section 85(7) is repealed and the following subsections are
inserted instead --
"
(7) Subject to subsection (9), the chief executive officer of
the Registrar's Department is to be the clerk of the
20 Court.
(8) The Public Sector Management Act 1994 section 32(1)
does not apply to the performance of functions of the
clerk of the Court by the chief executive officer of the
Registrar's Department.
page 15
Industrial and Related Legislation Amendment Bill 2007
Part 2 Amendments to the Industrial Relations Act 1979
s. 24
(9) The chief executive officer of the Registrar's
Department may designate a Registrar's Department
officer to be the clerk of the Court.
".
5 24. Section 93 amended
(1) Section 93(1) is repealed and the following subsections are
inserted instead --
"
(1) Subject to subsection (1ab), the chief executive officer
10 of the Registrar's Department is to be the Registrar.
(1aa) The Public Sector Management Act 1994 section 32(1)
does not apply to the performance of functions of the
Registrar by the chief executive officer of the
Registrar's Department.
15 (1ab) The chief executive officer of the Registrar's
Department may, after consultation with the Chief
Commissioner, designate a Registrar's Department
officer to be the Registrar.
(1ac) The Registrar may designate a Registrar's Department
20 officer to be a deputy registrar.
(1ad) There are to be as many deputy registrars as are
necessary for the purposes of this Act.
".
(2) Section 93(1a) is amended by deleting "appointed under and
25 subject to Part 3 of the Public Sector Management Act 1994."
and inserting instead --
" public service officers. ".
(3) After section 93(2) the following subsection is inserted --
"
30 (2a) Subsection (2) applies despite the Public Sector
Management Act 1994 but if the chief executive officer
page 16
Industrial and Related Legislation Amendment Bill 2007
Amendments to the Industrial Relations Act 1979 Part 2
s. 25
of the Registrar's Department is the Registrar, nothing
in that subsection affects the functions of the Registrar
as chief executive officer.
".
5 25. Section 96 amended
(1) After section 96(2)(a) the following paragraph is inserted --
"
(ab) claims under section 28A or under another
written law in relation to a contractual benefit
10 to which an employee is entitled under a
contract of employment;
".
(2) Section 96(3) is amended as follows:
(a) by inserting "and" after paragraph (a);
15 (b) by deleting paragraph (b) and inserting instead --
"
(b) to make an order under this Act or another
written law in relation to a contractual benefit
to which an employee is entitled under a
20 contract of employment; and
".
26. Section 98 amended
Section 98(1) is repealed and the following subsections are
inserted instead --
25 "
(1) The Minister may designate a departmental officer to
be an industrial inspector.
(1a) There are to be as many industrial inspectors as are
necessary to perform the functions conferred on
30 industrial inspectors by this Act or any other written
law.
page 17
Industrial and Related Legislation Amendment Bill 2007
Part 2 Amendments to the Industrial Relations Act 1979
s. 27
(1b) A person ceases to be an industrial inspector if the
designation of the person under subsection (1) is
revoked or ceases to have effect.
".
5 27. Sections 98A, 98B and 98C inserted
After section 98 the following sections are inserted --
"
98A. Identity card
(1) Every industrial inspector is to be provided with an
10 identity card signed by the Minister or by the CEO or a
departmental officer authorised in that behalf by
the CEO.
(2) An industrial inspector must produce the identity card
to a person if --
15 (a) the industrial inspector has performed, or is
about to perform, any function in relation to a
person under this Act or any other written law;
and
(b) the person requests the industrial inspector to
20 produce identification.
(3) An identity card purporting to have been provided
under subsection (1) is, without proof of the signature
of the person purporting to have signed it or of the
person's authority to have signed it, evidence in a
25 court --
(a) of the appointment to which the identity card
purports to relate; and
(b) of any other matter specified on the identity
card.
30 (4) If the designation of a person under section 98(1) is
revoked or ceases to have effect, the person must, as
soon as practicable, return the identity card to the CEO
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Industrial and Related Legislation Amendment Bill 2007
Amendments to the Industrial Relations Act 1979 Part 2
s. 27
or a departmental officer authorised by the CEO to
receive it.
98B. Staff
(1) In this section --
5 "employed" in the Department or the Registrar's
Department includes seconded to perform
functions or services for, or duties in the service
of, that department.
(2) As many public service officers are to be employed in
10 the Department as are necessary for the purposes of
this Act.
(3) As many public service officers are to be employed in
the Registrar's Department as are necessary --
(a) for the performance of the Court's functions;
15 and
(b) for the performance of the Commission's
functions; and
(c) otherwise for the purposes of this Act.
98C. Designation of officers, generally
20 (1) This section applies to --
(a) the designation of a person under section 85(9)
to be the clerk of the Court; and
(b) the designation of a person under
section 93(1ab) to be the Registrar; and
25 (c) the designation of a person under
section 93(1ac) to be a deputy registrar; and
(d) the designation of a person under section 98(1)
to be an industrial inspector.
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(2) The power to make a designation includes --
(a) the power to revoke a designation previously
made under that power; and
(b) the power to designate a person to perform
5 functions of another person who has that
designation when it is impractical for that other
person to perform the functions.
(3) A designation referred to in subsection (1)(a), (b) or (c)
ceases to have effect if the person designated ceases to
10 be a Registrar's Department officer.
(4) A designation referred to in subsection (1)(d) ceases to
have effect if the person designated ceases to be a
departmental officer.
(5) The chief executive officer of the Registrar's
15 Department, the Registrar or the Minister, as the case
may be, may delegate the power to make a designation
to another person.
(6) These are to be in writing --
(a) a designation;
20 (b) a revocation of a designation;
(c) a delegation of the power to make a
designation.
".
28. Section 113 amended
25 (1) Section 113(1) is amended as follows:
(a) in paragraph (d)(ii) after "matters," by inserting --
" applications, ";
(b) after paragraph (d)(ii)(V) by inserting --
"
30 and
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Industrial and Related Legislation Amendment Bill 2007
Amendments to the Industrial Relations Act 1979 Part 2
s. 28
(VI) the Children and Community
Services Act 2004; and
(VII) the Workers' Compensation
and Injury Management
5 Act 1981;
";
(c) after each of items II, III and IV by inserting --
" and ".
(2) Section 113(3) is amended by deleting "this Act," and inserting
10 instead --
" this Act or another written law, ".
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Industrial and Related Legislation Amendment Bill 2007
Part 3 Amendments to the Magistrates Court (Civil Proceedings) Act 2004
s. 29
Part 3 -- Amendments to the Magistrates Court (Civil
Proceedings) Act 2004
29. The Act amended
The amendments in this Part are to the Magistrates Court (Civil
5 Proceedings) Act 2004.
30. Section 3 amended
Section 3(1) is amended by inserting after the definition of
"defence" --
"
10 "employment-related claim" has the meaning given
by section 33B;
"employment-related mediation" means mediation
carried out in accordance with Part 4A Division 2
and the rules of court;
15 "general procedure" means the procedure prescribed
by Part 3 and the rules of court other than the rules
of court made for the purposes of Part 4 or 4A;
".
31. Section 23 amended
20 After section 23(2) the following subsection is inserted --
"
(3) This section does not apply to a case on an
employment-related claim.
".
25 32. Section 26 amended
Section 26(1) is amended as follows:
(a) by deleting the subsection designation "(1)";
(b) by deleting the definition of "general procedure".
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33. Part 4A inserted
After section 33 the following Part is inserted --
"
Part 4A -- Employment-related claims
5 procedure
Division 1 -- Preliminary
33A. Meaning of terms used in this Part
(1) In this Part --
"Chief Commissioner" has the meaning given in the
10 Industrial Relations Act 1979 section 7(1);
"Commission" has the meaning given in the Industrial
Relations Act 1979 section 7(1);
"commissioner" has the meaning given in the
Industrial Relations Act 1979 section 7(1);
15 "employee" has the meaning given in the Industrial
Relations Act 1979 section 7;
"employer" has the meaning given in the Industrial
Relations Act 1979 section 7;
"mediator" means a commissioner assigned under
20 section 33D;
"relevant organisation or association", for a party,
means --
(a) an organisation or association as defined in
the Industrial Relations Act 1979
25 section 7(1); or
(b) an organisation as defined in the Workplace
Relations Act 1996 of the Commonwealth
section 4,
of which the party is a member or is eligible to
30 become a member.
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(2) A reference in this Part to an employee or employer
includes a reference to a former employee or former
employer.
(3) For the purposes of the definitions of "employee" and
5 "employer" in subsection (1), if a person ("the
principal") 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
10 employing the person, or each person in the group, to
do work.
33B. Application of Part
(1) This Part applies to a claim by an employee arising out
of a breach of a contract of employment between the
15 employee and the employee's employer (an
"employment-related claim").
(2) If a person making an employment-related claim also
makes a claim for relief or the imposition of a penalty
under the Workplace Relations Act 1996 of the
20 Commonwealth in relation to the same employer, this
Part applies to the person's claim under that Act as if
the claim were an employment-related claim.
33C. Decision of Court about whether claim is an
employment-related claim
25 (1) The Court may, on the application of a party, decide
whether a claim is or is not an employment-related
claim.
(2) Subsection (3) applies if --
(a) the Court decides a claim is not an
30 employment-related claim; and
(b) the plaintiff discontinues or withdraws the
claim; and
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(c) the plaintiff later refers a claim under the
Industrial Relations Act 1979 that is based on
the same subject matter as the claim in the
Court.
5 (3) For the purposes of the Industrial Relations
Act 1979 --
(a) if there is a time limit under that Act for
referring a claim mentioned in
subsection (2)(c), the period starting on the day
10 the claim was made to the Court and ending on
the day the Court's decision under this section
is made must be disregarded; and
(b) any mediation of the case under this Part is
taken to be conciliation of the claim referred to
15 the Commission.
Division 2 -- Mediation
33D. Assignment of mediator
(1) A registrar must, as soon as practicable after an
employment-related claim is made to the Court, advise
20 the Chief Commissioner that the claim has been made.
(2) The Chief Commissioner must assign a commissioner
as the mediator for the case.
(3) A Commission deputy registrar or Commission
associate may assist the mediator in the preparation and
25 conduct of the employment-related mediation.
(4) In subsection (3) --
"Commission associate" means an associate
appointed under the Industrial Relations Act 1979
section 93(1a);
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"Commission deputy registrar" means a deputy
registrar as defined in the Industrial Relations
Act 1979 section 7(1).
33E. Attendance and participation in mediation
5 (1) A mediator may, by written notice, require the parties
to an employment-related mediation to do either or
both of the following --
(a) attend before the mediator at a stated time and
place to participate in the mediation;
10 (b) participate in the mediation in a way specified
in the notice.
(2) The parties must comply with a requirement made by a
mediator under subsection (1).
33F. Representation of parties
15 (1) A party to an employment-related mediation may
appear in person or be represented before the mediator
by --
(a) a relevant organisation or association; or
(b) a person other than a relevant organisation or
20 association if --
(i) all parties agree; or
(ii) the mediator is satisfied that it is in the
interests of justice for the party to be
represented by that person.
25 (2) Without limiting subsection (1), a party to an
employment-related mediation who is a party referred
to in section 44(2)(b) or (c) may be represented before
the mediator by a person who may represent the party
under section 44(2)(b) or (c).
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33G. No fees or costs for mediation
The parties to an employment-related mediation are not
liable to pay any fees or costs for mediation.
33H. Mediator may file certificate
5 (1) If the mediator is satisfied that the parties to an
employment-related mediation are unable to settle all
or part of the case the mediator must issue a certificate
in accordance with rules of court.
(2) The Court must not hear and determine a case on an
10 employment-related claim unless a mediator has issued
a certificate under subsection (1).
(3) Subsection (2) does not stop the Court making a
determination under section 33C.
Division 3 -- Proceedings in Court
15 33I. Application
This Division applies to a case heard in the Court
involving an employment-related claim.
33J. Representation of parties
(1) Despite section 44, an employee or officer of a relevant
20 organisation or association may appear for a party to
the case without the leave of the Court.
(2) Section 44(4) does not apply to an employee or officer
of a relevant organisation or association who appears
for a party to the case.
25 33K. Employment-related claims procedure
(1) The Court is to act with as little formality as the Court
thinks is reasonable.
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(2) The Court is not bound by rules or practice as to
evidence but may inform itself on any matter in such
manner as it thinks fit.
(3) The Court may order that an employment-related claim
5 be dealt with under the general procedure if --
(a) all the parties so request; or
(b) the case involves an important principle of law
or complex facts or issues.
33L. Costs
10 (1) A successful party to a case on an employment-related
claim is entitled to an order under section 25(1) in
relation to the party's costs only if the Court is satisfied
that --
(a) because of the existence of exceptional
15 circumstances an injustice would be done to the
successful party if that party's costs were not
ordered to be paid; or
(b) the unsuccessful party's claim or defence was
wholly without merit.
20 (2) This section does not affect section 33G.
33M. Rules of court for employment-related proceedings
Rules of court made for the purposes of this Part
may --
(a) provide for procedures to be followed when
25 conducting a case on an employment-related
claim; and
(b) specify the circumstances in which any of the
Court's powers in Part 3 may be exercised; and
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(c) provide that all or some of the general
procedure, with or without modifications,
applies to cases on employment-related claims.
".
5 34. Section 34 amended
Section 34 is amended as follows:
(a) by deleting the definition of "compulsory mediation"
and inserting instead --
"
10 "compulsory mediation" means --
(a) mediation carried out by a mediator in
accordance with an order of the Court and
the rules of court; or
(b) employment-related mediation;
15 ";
(b) in the definition of "mediator" by inserting after
"section 35" --
"
and in sections 36, 37(5) and 38 includes a
20 mediator as defined in section 33A(1)
".
35. Section 36 amended
(1) Section 36 is amended by inserting before "The" the subsection
designation "(1)".
25 (2) At the end of section 36 the following subsection is inserted --
"
(2) The Magistrates Court Act 2004 section 37 applies to a
Commission deputy registrar or Commission associate
(as those terms are defined in section 33D(4)) in
30 respect of his or her performance or purported
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Part 3 Amendments to the Magistrates Court (Civil Proceedings) Act 2004
s. 35
performance of functions under section 33D(3) as if
that person were a Court officer.
".
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Industrial and Related Legislation Amendment Bill 2007
Amendments to the Children and Community Services Act 2004 Part 4
s. 36
Part 4 -- Amendments to the Children and Community
Services Act 2004
36. The Act amended
The amendments in this Part are to the Children and Community
5 Services Act 2004.
37. Part 7 heading amended
The heading to Part 7 is deleted and the following heading is
inserted instead --
"
10 Part 7 -- Prohibitions and limitations on certain
kinds of employment of children
".
38. Part 8 inserted
After section 196 the following Part is inserted --
15 "
Part 8 -- Other protections for children
in employment
Division 1 -- Preliminary
197. Terms used in this Part
20 In this Part --
"affected employer" has the meaning given to that
term in section 198;
"applied provisions of the IR Act" has the meaning
given to that term in section 199;
25 "Chief Commissioner" has the meaning given to that
term in the IR Act section 7(1);
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"commissioner" has the meaning given to that term in
the IR Act section 7(1);
"comparable State award", in relation to work
carried out by a child, means a State award that
5 regulates the terms and conditions of employment
of employees carrying out the same kind of work
as the work carried out by the child;
"compliance notice" means a notice issued under
section 206;
10 "constitutional corporation" means a corporation to
which section 51(xx) of the Constitution of the
Commonwealth applies;
"industrial inspector" means a person designated as
an industrial inspector under the IR Act;
15 "industrial magistrate's court" has the meaning
given to that term in the IR Act section 7(1);
"IR Act" means the Industrial Relations Act 1979;
"IR Commission" means The Western Australian
Industrial Relations Commission continued and
20 constituted under the IR Act;
"parent", in relation to a child, means a person,
including the CEO, who at law has responsibility
for the day-to-day care, welfare and development
of the child;
25 "State award" has the meaning given to the term
"award" in the IR Act section 7(1).
198. Affected employers and employment
(1) In this section --
"workplace agreement" has the meaning given to that
30 term in the Workplace Relations Act 1996 of the
Commonwealth section 4(1).
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(2) A person is an "affected employer" of a child for the
purposes of this Part if --
(a) the person is a constitutional corporation that is
the employer, as defined in the IR Act
5 section 7(1), of a child; and
(b) the child is employed under --
(i) a workplace agreement; or
(ii) an agreement or arrangement prescribed
by the regulations;
10 and
(c) a comparable State award is in force in relation
to the work carried out by the child.
(3) A person is also an "affected employer" of a child for
the purposes of this Part if --
15 (a) the person engages a child under a contract for
services other than a contract for services for
the child to carry out work of a kind prescribed
by the regulations; and
(b) a comparable State award is in force in relation
20 to the work carried out by the child.
(4) A reference in this Part to the employment of a child by
an affected employer includes, for an affected
employer referred to in subsection (3), a reference to
the engagement of a child as referred to in that
25 subsection.
199. Applied provisions of the IR Act
(1) A reference in this Part to the "applied provisions of
the IR Act" is a reference to the following provisions
of the IR Act --
30 (a) section 22B;
(b) section 26(1)(a) and (b), (2) and (3);
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(c) section 27;
(d) section 28;
(e) section 30;
(f) section 31;
5 (g) section 32A;
(h) section 33(1), (2), (3), (5) and (6);
(i) section 34;
(j) section 35;
(k) section 36;
10 (l) section 49(1), (2), (2a) and (3) to (12);
(m) section 90;
(n) section 91;
(o) section 92.
(2) The applied provisions of the IR Act have effect for the
15 purposes of this Part --
(a) subject to the provisions of this Part; and
(b) with the modifications that are provided for in
subsection (3); and
(c) with any modifications that are prescribed
20 under the IR Act section 113; and
(d) 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.
25 (3) For the purposes of subsection (1) --
(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. ";
30 and
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Industrial and Related Legislation Amendment Bill 2007
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s. 38
(b) the IR Act section 33(6) has effect as if
"section 44" were deleted and the following
were inserted instead --
"
5 the Children and Community Services Act 2004
section 232G
";
and
(c) the IR Act section 90(1) has effect as if
10 paragraph (a) were deleted and the following
paragraph were inserted instead --
"
(a) on the ground that the decision is in excess of
jurisdiction;
15 ".
Division 2 -- Minimum conditions of employment
for children
Subdivision 1 -- Affected employers to provide minimum
conditions of employment for children
20 200. Affected employers to provide minimum conditions
of employment for children
(1) An affected employer of a child must ensure that the
child is provided with conditions of employment not
less favourable than the minimum conditions of
25 employment for the child.
(2) The "minimum conditions of employment" for a
child are --
(a) the rates of salary or wages that are not less
than the rates of salary or wages provided for
30 from time to time under the comparable State
award; and
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(b) any other conditions of employment provided
for from time to time under the comparable
State award that are prescribed by the
regulations.
5 (3) Nothing in this section limits the operation of the
Minimum Conditions of Employment Act 1993.
(4) Nothing in this section prohibits a child from being
engaged to carry out unpaid work on a trial basis in
accordance with Division 4.
10 201. Determination of comparable award by Registrar
(1) In this section --
"Registrar" has the meaning given to that term in the
IR Act section 7(1).
(2) If an affected employer of a child is unsure which
15 comparable State award will be applicable for the
purposes of section 200, the affected employer may
apply in writing to the Registrar for the making of a
determination of that matter.
(3) On such an application being made, the Registrar must
20 determine which comparable State award will be
applicable for the purposes of section 200.
(4) A determination under subsection (3) is binding on the
IR Commission or an industrial magistrate's court, as
the case requires, for the purposes of proceedings under
25 Subdivision 3 unless the IR Commission or court
considers that the circumstances existing at the time
when the determination was made have changed in a
material way.
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202. Affected employers to display comparable State
awards at workplaces
(1) In this section --
"comparable State award" includes a document --
5 (a) containing a summary of that State award
approved by the Registrar for the purposes of
the IR Act section 97UG; and
(b) having a statement at the head of the document
to the effect that it is a summary of that State
10 award so approved;
"Registrar" has the meaning given to that term in the
IR Act section 7(1).
(2) An affected employer of a child must cause a copy of
the comparable State award that is applicable for the
15 purposes of section 200 to the employment of the child
at any premises to be conspicuously displayed at those
premises.
203. Requirements relating to keeping records
(1) In this section --
20 "ABN" (which stands for "Australian Business
Number") has the meaning given to that term in
the A New Tax System (Australian Business
Number) Act 1999 of the Commonwealth
section 41;
25 "ACN" (which stands for "Australian Company
Number") has the meaning given to that term in
the Corporations Act 2001 of the Commonwealth
section 9.
(2) An affected employer of a child must ensure that
30 records are kept of the following matters --
(a) the name of the affected employer;
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(b) the ACN (if any) and ABN of the affected
employer;
(c) the name of the child;
(d) the date of birth of the child, as provided to the
5 affected employer by the child;
(e) the date on which the child's employment
began;
(f) whether the child's employment is full-time or
part-time;
10 (g) whether the child's employment is permanent,
temporary or casual;
(h) any remuneration paid to the child;
(i) the days on which the child works for the
affected employer (including the starting and
15 finishing times, and the total hours worked, on
each day);
(j) if the child's employment is terminated -- the
date on which the child's employment is
terminated;
20 (k) any other matters concerning the child's
employment that are prescribed by the
regulations.
(3) The records are to be kept in accordance with the
regulations.
25 (4) The affected employer of a child must ensure that an
entry made in the records is kept for a period of at least
7 years after the entry is made.
204. Access to records
(1) In this section --
30 "authorised person", in relation to an affected
employer of a child, means the child or a person
authorised in writing by the child;
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"relevant records" means the records required to be
kept under section 203(2).
(2) On the written request of an authorised person, an
affected employer of a child must, not later than
5 14 days after the request is made --
(a) produce to the authorised person the relevant
records relating to the child; and
(b) let the authorised person inspect those records.
(3) The duty placed on an affected employer by
10 subsection (2) --
(a) continues so long as the relevant records are
required to be kept under section 203(4); and
(b) is not affected by the fact that the child is no
longer employed by the affected employer; and
15 (c) includes the further duties --
(i) to let the authorised person enter
premises of the affected employer for
the purpose of inspecting the relevant
records; and
20 (ii) to let the authorised person take copies
of or extracts from those records.
205. Enforcement of sections 200, 202, 203 and 204
(1) A contravention of section 200(1), 202(2), 203(2) or
(4) or 204(2) is not an offence, but those provisions are
25 civil penalty provisions for the purposes of the IR Act
section 83E.
(2) In proceedings under the IR Act section 83E for a
contravention of section 200(1) by an affected
employer in respect of a child, a declaration by the
30 IR Commission under section 216(6)(c) that the
affected employer failed to ensure that the child was
provided with conditions of employment not less
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favourable than the minimum conditions of
employment for the child in accordance with
section 200(1) is prima facie evidence that the affected
employer contravened that provision.
5 Subdivision 2 -- Compliance notices
206. Issue of compliance notices
(1) Subsection (2) applies if an industrial inspector is of
the opinion that an affected employer of a child --
(a) is contravening section 200(1); or
10 (b) has contravened section 200(1) in
circumstances that make it likely that the
contravention will continue or be repeated.
(2) If this subsection applies, the industrial inspector may
issue to the affected employer a notice in the form
15 prescribed by the regulations requiring the affected
employer to remedy the contravention or the matters
giving rise to the contravention within the specified
period, of not less than 14 days, after the issue of the
notice.
20 (3) An industrial inspector may specify a period that is less
than 14 days after the issue of the compliance notice if
the inspector is satisfied that it is reasonably
practicable for the affected employer to comply with
the notice within the specified period.
25 (4) A compliance notice is to --
(a) state that the industrial inspector is of the
opinion referred to in subsection (1); and
(b) state the reasons for that opinion.
207. Compliance notices may include directions
30 (1) An industrial inspector may include in a compliance
notice directions as to the measures to be taken to
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remedy any contravention or matter to which the notice
relates or to otherwise comply with the notice.
(2) Without limiting subsection (1), any such direction
may offer the affected employer a choice of ways in
5 which to remedy the contravention or matter or to
comply with the notice.
208. Withdrawal of compliance notices
(1) An authorised industrial inspector may withdraw a
compliance notice at any time if the inspector is
10 satisfied that the notice was issued in error or is
incorrect in some respect.
(2) In subsection (1) --
"authorised industrial inspector" means --
(a) the industrial inspector who issued the
15 compliance notice; or
(b) another industrial inspector authorised to
withdraw the compliance notice by the
officer prescribed by the regulations of the
department of the Public Service principally
20 assisting in the administration of the IR Act.
(3) The withdrawal of a compliance notice has effect when
written notice of the withdrawal is given to the affected
employer.
209. Withdrawal of compliance notice does not prevent
25 issue of another notice
The withdrawal of a compliance notice issued to an
affected employer does not prevent the issue of another
compliance notice to the affected employer.
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210. Proceedings not affected by compliance notices
The issue or withdrawal of a compliance notice does
not affect any proceedings under this Part in
connection with any matter in respect of which the
5 notice was issued.
Subdivision 3 -- Proceedings in the IR Commission and
industrial magistrate's court
211. Conferral of jurisdiction on IR Commission
By this section the IR Commission has jurisdiction to
10 hear and determine applications that may be made to
the IR Commission under section 213.
212. Jurisdiction to be exercised by commissioner with
necessary qualifications
(1) The jurisdiction conferred by section 211 in respect of
15 a matter is to be exercised by the IR Commission
constituted by a commissioner.
(2) In allocating a matter for the purposes of
subsection (1), the Chief Commissioner must have
regard to the desirability of the commissioner
20 concerned having relevant knowledge of this Part.
213. Applications to IR Commission alleging
contraventions of section 200(1)
(1) An application may be made to the IR Commission for
a determination whether an affected employer of a
25 child has contravened section 200(1).
(2) An application under subsection (1) may be made
by --
(a) the child, a parent of the child or a person
authorised in writing by the child to do so; or
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(b) an organisation, as defined in the IR Act
section 7(1), of which the child is, or is eligible
to be, a member; or
(c) an association, as defined in the IR Act
5 section 7(1), that represents an organisation
referred to in paragraph (b); or
(d) an organisation, as defined in the Workplace
Relations Act 1996 of the Commonwealth
section 4(1), of which the child is, or is eligible
10 to be, a member; or
(e) an industrial inspector.
(3) The application may be made whether or not a
compliance notice has been issued to the affected
employer in respect of the contravention.
15 (4) The applicant must serve a copy of the application on
the affected employer of the child.
(5) The application is to be made to the IR Commission
not later than 6 years after the day on which --
(a) the affected employer was given a compliance
20 notice in respect of the contravention; or
(b) if no such notice was given -- the alleged
contravention occurred.
214. Parties to proceedings
Subject to the IR Act section 27(1)(j) (as applied by
25 section 215), the parties to proceedings on an
application under section 213 are --
(a) the applicant; and
(b) the affected employer on whom or which a
copy of the application is served.
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215. Applied provisions of IR Act: practice, procedure
and appeals
The applied provisions of the IR Act that apply to and
in relation to the exercise of the jurisdiction under the
5 IR Act of the IR Commission constituted by a
commissioner apply to the exercise of the jurisdiction
conferred by section 211.
216. Determination of application where no resolution
by conciliation
10 (1) If --
(a) an application is made to the IR Commission
under section 213; and
(b) the IR Commission --
(i) endeavours to resolve the issues
15 involved in the application by
conciliation under section 232F, but the
parties do not reach agreement for the
resolution of those issues; or
(ii) does not endeavour to resolve those
20 issues by conciliation under
section 232F,
the IR Commission may hear and determine the
application in accordance with section 211.
(2) Subject to subsection (4), the IR Commission may, for
25 the hearing and determination of the application, be
constituted by a commissioner who exercised
conciliation powers in relation to the application.
(3) If the commissioner referred to in subsection (2)
proposes to constitute the IR Commission for the
30 hearing and determination of the application, the
commissioner must, at the conclusion of the
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conciliation proceeding, advise the parties of his or her
intention to do so.
(4) If, before the hearing commences, a party objects to the
IR Commission being constituted as proposed under
5 subsection (3), the commissioner must not constitute
the IR Commission for the hearing and determination
of the application.
(5) The commissioner is not to be taken to have exercised
conciliation powers in relation to an application merely
10 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 was not
15 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.
20 (6) In determining the application, the IR Commission
may do one or more of the following --
(a) make an order that the affected employer pay to
the child a specified amount by way of
compensation, whether for the child having
25 been underpaid or otherwise;
(b) make an order that the affected employer do, or
refrain from doing, any specified thing;
(c) make a declaration that the affected employer
failed to ensure that the child was provided
30 with conditions of employment not less
favourable than the minimum conditions of
employment for the child in accordance with
section 200(1);
(d) make an order dismissing the application;
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(e) make any ancillary or incidental order that the
IR Commission thinks necessary for giving
effect to an order made under this subsection.
217. Costs of representation may be awarded in certain
5 circumstances
(1) Despite the IR Act section 27(1)(c) (as applied by
section 215) but subject to subsection (2), on hearing
and determining an application to which section 213
applies, the IR Commission may make an order giving
10 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 proceedings have
been frivolously or vexatiously instituted or defended,
as the case requires, by the party against which the
15 order is made.
(2) The IR Commission cannot make an order giving costs
against an industrial inspector.
218. Enforcement of orders in industrial magistrate's
court
20 (1) An order made by the IR Commission under
section 216(6) or 217 is an instrument to which the
IR Act section 83 applies.
(2) For the purposes of subsection (1), the IR Act
sections 82A, 83, 83A, 83C, 83F, 84, 90, 91 and 92
25 have effect --
(a) with any modifications that are prescribed
under the IR Act section 113; and
(b) for sections 82A, 83, 83A, 83C and 83F, with
any other modifications that the industrial
30 magistrate's court determines to be necessary
or appropriate.
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Division 3 -- Unfair dismissal and denial of
contractual benefits
219. Terms used in this Division
(1) In this Division --
5 "Commonwealth instrument" means an award,
agreement or other instrument of a kind prescribed
by the regulations;
"contractual benefit" means a benefit to which a child
is entitled under a contract of employment with a
10 constitutional corporation whether --
(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
15 implied in the contract,
but does not include a benefit to which a child is
entitled under a Commonwealth instrument;
"employment" means the engagement of a child to
carry out work under a contract of employment
20 with a constitutional corporation.
(2) For the purposes of this Division and subject to
subsection (3), if a constitutional corporation engages a
child, or a group of children, under a contract to
personally give a performance as, or as part of,
25 musical, theatrical, dance or comic entertainment, the
constitutional corporation is to be regarded as
employing the child, or each child in the group, under a
contract of employment.
(3) Subsection (2) has effect only to the extent necessary to
30 enable a claim of the kind referred to in
section 222(1)(b) to be referred to, and dealt with by,
the IR Commission in respect of a child who would not
be engaged by a constitutional corporation under a
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contract of employment but for the operation of
subsection (2).
220. Conferral of jurisdiction on IR Commission
By this section the IR Commission has jurisdiction to
5 hear and determine claims that may be referred to the
IR Commission under section 222.
221. Jurisdiction to be exercised by commissioner with
necessary qualifications
(1) The jurisdiction conferred by section 220 in respect of
10 a matter is to be exercised by the IR Commission
constituted by a commissioner.
(2) In allocating a matter for the purposes of
subsection (1), the Chief Commissioner must have
regard to the desirability of the commissioner
15 concerned having relevant knowledge of this Part.
222. Claims referred to IR Commission of unfair
dismissal and denial of contractual benefit
(1) A claim may be referred under this section to the
IR Commission that a child --
20 (a) has been harshly, oppressively or unfairly
dismissed by a constitutional corporation from
his or her employment; or
(b) has not been allowed a contractual benefit by a
constitutional corporation.
25 (2) Subsection (1) applies to --
(a) a dismissal of a child from his or her
employment that occurs on or after the day on
which this section comes into operation; or
(b) a failure to allow a child a contractual benefit
30 that occurs on or after 27 March 2006.
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(3) A claim under subsection (1) may be referred to the
IR Commission by --
(a) the child, a parent of the child or a person
authorised in writing by the child to do so; or
5 (b) an organisation, as defined in the IR Act
section 7(1), of which the child is, or is eligible
to be, a member; or
(c) an association, as defined in the IR Act
section 7(1), that represents an organisation
10 referred to in paragraph (b); or
(d) an organisation, as defined in the Workplace
Relations Act 1996 of the Commonwealth
section 4(1), of which the child is, or is eligible
to be, a member; or
15 (e) an industrial inspector.
(4) The claimant must serve a copy of the claim on the
constitutional corporation.
(5) Subject to subsection (6), the claim is to be referred to
the IR Commission not later than --
20 (a) 28 days after the day on which the child was
dismissed from his or her employment; or
(b) 6 years after the day on which the child was not
allowed the contractual benefit,
as the case requires.
25 (6) The IR Commission may accept a claim under
subsection (1)(a) that is out of time if the
IR Commission considers that it would be unfair not to
do so.
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223. Parties to proceedings
Subject to the IR Act section 27(1)(j) (as applied by
section 224), the parties to proceedings on a claim
under section 222 are --
5 (a) the claimant; and
(b) the constitutional corporation on which a copy
of the claim is served.
224. Applied provisions of IR Act: practice, procedure
and appeals
10 The applied provisions of the IR Act that apply to and
in relation to the exercise of the jurisdiction under the
IR Act of the IR Commission constituted by a
commissioner apply to the exercise of the jurisdiction
conferred by section 220.
15 225. Determination of claim where no resolution by
conciliation
(1) If --
(a) a claim is referred to the IR Commission under
section 222; and
20 (b) the IR Commission --
(i) endeavours to resolve the issues
involved in the claim by conciliation
under section 232F, but the parties do
not reach agreement for the resolution
25 of those issues; or
(ii) does not endeavour to resolve those
issues by conciliation under
section 232F,
the IR Commission may hear and determine the claim
30 in accordance with section 220.
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(2) Subject to subsection (4), the IR Commission may, for
the hearing and determination of the claim, be
constituted by a commissioner who exercised
conciliation powers in relation to the claim.
5 (3) If the commissioner referred to in subsection (2)
proposes to constitute the IR Commission for the
hearing and determination of the claim, the
commissioner must, at the conclusion of the
conciliation proceeding, advise the parties of his or her
10 intention to do so.
(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
15 of the claim.
(5) The commissioner is not to be taken to have exercised
conciliation powers in relation to a claim merely
because --
(a) the commissioner arranged for a conference of
20 the parties or their representatives to be
presided over by the commissioner, but the
conference did not take place or was not
presided over by the commissioner; or
(b) the commissioner arranged for the parties or
25 their representatives to confer among
themselves at a conference at which the
commissioner was not present.
(6) The IR Commission is to determine a claim to which
section 222(1)(a) applies in accordance with the IR Act
30 section 23A.
(7) The IR Commission is to determine a claim to which
section 222(1)(b) applies as if the claim were referred
to the IR Commission under the IR Act section 28A.
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(8) Without limiting the application of the IR Act
section 23A(7) to a claim to which section 222(1)(a)
applies, a child is not entitled to compensation both
under this section and otherwise for, as the case
5 requires --
(a) the same dismissal from employment by a
constitutional corporation; or
(b) the same failure by a constitutional corporation
to allow the child a contractual benefit.
10 226. Costs of representation may be awarded in certain
circumstances
(1) Despite the IR Act section 27(1)(c) (as applied by
section 224) but subject to subsection (2), on hearing
and determining a claim to which section 222 applies,
15 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 proceedings have been
frivolously or vexatiously instituted or defended, as the
20 case requires, by the party against which the order is
made.
(2) The IR Commission cannot make an order giving costs
against an industrial inspector.
227. Enforcement of orders in industrial magistrate's
25 court
(1) An order made by the IR Commission for the purposes
of section 225(6) is an order to which the IR Act
section 83B applies.
(2) An order made by the IR Commission for the purposes
30 of section 225(7) or under section 226 is an instrument
to which the IR Act section 83 applies.
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(3) For the purposes of --
(a) subsection (1), the IR Act sections 82A, 83B,
83C, 83F, 84, 90, 91 and 92; and
(b) subsection (2), the IR Act sections 82A, 83,
5 83A, 83C, 83F, 84, 90, 91 and 92,
have effect --
(c) with any modifications that are prescribed
under the IR Act section 113; and
(d) for sections 82A, 83, 83A, 83B, 83C and 83F,
10 with any other modifications that the industrial
magistrate's court determines to be necessary
or appropriate.
Division 4 -- Unpaid work on a trial basis
228. Obligations of persons engaging children to carry
15 out unpaid work
(1) In this section --
"unpaid work" means work for which either no
payment or other reward, or only a nominal
payment or other reward, is received;
20 "unpaid work on a trial basis" means unpaid work
that is carried out with a view to obtaining paid
work with the person for whom the unpaid work is
carried out, whether under a contract of service, a
contract for services or other arrangement, but
25 does not include unpaid work carried out as
prescribed by the regulations.
(2) A person who engages a child to carry out unpaid work
on a trial basis must ensure that the child carries out
that work --
30 (a) on not more than one day in any calendar year;
and
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(b) for a period, excluding any break of not less
than 30 minutes, of not more than 7 hours; and
(c) for a period of not more than 5 hours without a
break of not less than 30 minutes.
5 229. Enforcement of section 228
(1) A contravention of section 228(2) is not an offence, but
that provision is a civil penalty provision for the
purposes of the IR Act section 83E.
(2) In proceedings under the IR Act section 83E for a
10 contravention of section 228(2) by a person in respect
of a child, a declaration by the IR Commission under
section 232C(6)(c) that the person failed to ensure that
the child carried out work in accordance with
section 228(2) is prima facie evidence that the person
15 contravened that provision.
230. Conferral of jurisdiction on IR Commission
By this section the IR Commission has jurisdiction to
hear and determine applications that may be made to
the IR Commission under section 232.
20 231. Jurisdiction to be exercised by commissioner with
necessary qualifications
(1) The jurisdiction conferred by section 230 in respect of
a matter is to be exercised by the IR Commission
constituted by a commissioner.
25 (2) In allocating a matter for the purposes of
subsection (1), the Chief Commissioner must have
regard to the desirability of the commissioner
concerned having relevant knowledge of this Part.
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232. Applications to IR Commission alleging
contravention of section 228
(1) An application may be made to the IR Commission for
a determination whether a person has contravened
5 section 228(2) in respect of a child.
(2) An application under subsection (1) may be made
by --
(a) the child, a parent of the child or a person
authorised in writing by the child to do so; or
10 (b) an organisation, as defined in the IR Act
section 7(1), of which the child is, or is eligible
to be, a member; or
(c) an association, as defined in the IR Act
section 7(1), that represents an organisation
15 referred to in paragraph (b); or
(d) an organisation, as defined in the Workplace
Relations Act 1996 of the Commonwealth
section 4(1), of which the child is, or is eligible
to be, a member; or
20 (e) an industrial inspector.
(3) The applicant must serve a copy of the application on
the person who engaged the child to carry out the work
that is the subject of the application.
(4) The application is to be made to the IR Commission
25 not later than 6 years after the day on which the alleged
contravention occurred.
232A. Parties to proceedings
Subject to the IR Act section 27(1)(j) (as applied by
section 232B), the parties to proceedings on an
30 application under section 232 are --
(a) the applicant; and
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(b) the person on whom or which a copy of the
application is served.
232B. Applied provisions of IR Act: practice, procedure
and appeals
5 The applied provisions of the IR Act that apply to and
in relation to the exercise of the jurisdiction under the
IR Act of the IR Commission constituted by a
commissioner apply to the exercise of the jurisdiction
conferred by section 230.
10 232C. Determination of application where no resolution
by conciliation
(1) If --
(a) an application is made to the IR Commission
under section 232; and
15 (b) the IR Commission --
(i) endeavours to resolve the issues
involved in the application by
conciliation under section 232F, but the
parties do not reach agreement for the
20 resolution of those issues; or
(ii) does not endeavour to resolve those
issues by conciliation under
section 232F,
the IR Commission may hear and determine the
25 application in accordance with section 230.
(2) Subject to subsection (4), the IR Commission may, for
the hearing and determination of the application, be
constituted by a commissioner who exercised
conciliation powers in relation to the application.
30 (3) If the commissioner referred to in subsection (2)
proposes to constitute the IR Commission for the
hearing and determination of the application, the
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commissioner must, at the conclusion of the
conciliation proceeding, advise the parties of his or her
intention to do so.
(4) If, before the hearing commences, a party objects to the
5 IR Commission being constituted as proposed under
subsection (3), the commissioner must not constitute
the IR Commission for the hearing and determination
of the application.
(5) The commissioner is not to be taken to have exercised
10 conciliation powers in relation to an application merely
because --
(a) the commissioner arranged for a conference of
the parties or their representatives to be
presided over by the commissioner, but the
15 conference did not take place or 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
20 commissioner was not present.
(6) In determining the application, the IR Commission
may do one or more of the following --
(a) make an order that the person pay to the child a
specified amount by way of compensation,
25 whether for the child not having been paid or
otherwise;
(b) make an order that the person do, or refrain
from doing, any specified thing;
(c) make a declaration that the person failed to
30 ensure that the child carried out work in
accordance with section 228(2);
(d) make an order dismissing the application;
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(e) make any ancillary or incidental order that the
IR Commission thinks necessary for giving
effect to an order made under this subsection.
232D. Costs of representation may be awarded in certain
5 circumstances
(1) Despite the IR Act section 27(1)(c) (as applied by
section 232B) but subject to subsection (2), on hearing
and determining an application to which section 232
applies, the IR Commission may make an order giving
10 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 proceedings have
been frivolously or vexatiously instituted or defended,
as the case requires, by the party against which the
15 order is made.
(2) The IR Commission cannot make an order giving costs
against an industrial inspector.
232E. Enforcement of orders in industrial magistrate's
court
20 (1) An order made by the IR Commission under
section 232C(6) or 232D is an instrument to which the
IR Act section 83 applies.
(2) For the purposes of subsection (1), the IR Act
sections 82A, 83, 83A, 83C, 83F, 84, 90, 91 and 92
25 have effect --
(a) with any modifications that are prescribed
under the IR Act section 113; and
(b) for sections 82A, 83, 83A, 83C and 83F, with
any other modifications that the industrial
30 magistrate's court determines to be necessary
or appropriate.
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Division 5 -- Conciliation
232F. Conciliation
(1) This section applies if --
(a) an application is made to the IR Commission
5 under section 213 or 232; or
(b) a claim is referred to the IR Commission under
section 222.
(2) If the IR Commission considers that the issues
involved in the application or claim may be resolved by
10 conciliation --
(a) the IR Commission may endeavour to assist the
parties to reach an agreement on those issues;
and
(b) for that purpose the IR Commission may --
15 (i) arrange conferences of the parties or
their representatives presided over by
the IR Commission; and
(ii) arrange for the parties or their
representatives to confer among
20 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 opinion of the
25 IR Commission, would assist in the
resolution of the issues.
(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.
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(4) If the IR Commission gives or makes a direction, order
or declaration under subsection (3), the IR Commission
must --
(a) if it is given or made orally, reduce the
5 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 given or made.
10 (5) A direction, order or declaration given or made under
subsection (3) binds only the parties to the relevant
conciliation proceeding.
(6) A conciliation proceeding must be held in private, and
only persons specified by the IR Commission, or
15 agreed to by the parties, may be present.
(7) If the parties request the IR Commission to make
recommendations about particular aspects of the
application or claim about which they are unable to
reach agreement, the IR Commission may make
20 recommendations about those aspects of the
application or claim.
(8) If the IR Commission --
(a) takes action under subsection (2)(a); and
(b) is satisfied that the parties have reached
25 agreement on all of the issues involved,
the IR Commission may, with the consent of the
parties, make a determination by order for the purposes
of section 211, 220 or 230, as the case requires, in
terms of that agreement.
30 (9) Any --
(a) direction, order or declaration given or made by
the IR Commission under subsection (3); or
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(b) order made by the IR Commission containing a
determination under subsection (8),
is enforceable under the IR Act section 84A as if it
were given or made under the IR Act section 32.
5 232G. Compulsory attendance at conciliation
(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 232F.
10 (2) A summons under this section --
(a) is to be given in the form and manner
prescribed by regulations made by the Chief
Commissioner under the IR Act section 113(1);
and
15 (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
20 Full Bench, as the case may be, that he or she
did not receive the summons.
(3) In subsection (2) --
"Full Bench" has the meaning given to that term in the
IR Act section 7(1).
25 (4) 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.
30 (5) The requirement to attend imposed by subsection (4) is
enforceable in accordance with section 232F(9) as if it
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were a direction, order or declaration referred to in that
provision.
Division 6 -- General
232H. Obstruction of industrial inspectors
5 The IR Act section 102(1)(a) and (b), (2) and (3) apply,
with any modifications prescribed by the regulations,
to and in relation to the performance by industrial
inspectors of functions for the purposes of this Part.
232I. Civil penalties
10 For the purposes of the application of the IR Act
section 83E to a contravention of section 102(1) or (2)
of that Act (as applied by section 232H), the IR Act
section 83E(6)(a), (b) and (c) do not apply.
232J. Effect of other proceedings
15 The IR Commission must not deal with an application
or claim under this Part if proceedings in respect of the
subject matter of the application or claim have already
been commenced before the IR Commission under the
IR Act or a court or other body under the IR Act or
20 other written law, unless those proceedings --
(a) have been discontinued; or
(b) have failed for want of jurisdiction.
232K. Transfer of claim
(1) If the IR Commission decides that it has jurisdiction
25 under the IR Act to determine a claim referred under
Division 3, the IR Commission may order that the
claim be dealt with under that Act.
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(2) If the IR Commission makes an order under
subsection (1) in relation to a claim --
(a) the claim is to be taken to have been referred
under the IR Act; and
5 (b) any proceedings under this Part in relation to
the claim are to be taken to be proceedings
under the IR Act.
232L. Part does not derogate from IR Act
The functions conferred on the IR Commission under
10 this Part are in addition to, and do not derogate from,
any function of the IR Commission under the IR Act.
232M. Part 7 not limited
(1) Subject to subsection (2), nothing in this Part limits the
operation of Part 7.
15 (2) Sections 195 and 196 do not apply for the purposes of
this Part.
".
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Part 5 -- Amendments to the Occupational Safety and
Health Act 1984
39. The Act amended
The amendments in this Part are to the Occupational Safety and
5 Health Act 1984.
40. Section 35D amended
(1) Section 35D(1) is amended as follows:
(a) in paragraph (a)(ii) after "earnings" by inserting --
"
10 or any other detriment to which the
claimant was subjected
";
(b) in paragraph (b) after "fit" by inserting --
" as compensation ".
15 (2) Section 35D(2) is amended after "fit" by inserting --
" as compensation ".
(3) Section 35D(4) is amended after "earnings or" in both places
where it occurs by inserting --
" other ".
20 41. Section 51G amended
Section 51G(1) is amended either --
(a) if that subsection ends "and 51A(1).", by deleting "and
51A(1)." and inserting instead --
" , 51A(1), 56A(1) and 56C(1). "; or
25 (b) if that subsection ends "and 60A.", by deleting "and
60A." and inserting instead --
" , 56A(1), 56C(1) and 60A. ".
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Note: Paragraph (a) or (b) will have effect depending on whether
section 51G(1) has or has not been amended, as proposed in the
Occupational Safety and Health Legislation Amendment Bill 2007,
when this section comes into operation.
5 42. Section 51J amended
(1) Section 51J(1) is amended by deleting "or 39G." and inserting
instead --
" , 39G or 56C(1). ".
(2) After section 51J(3) the following subsections are inserted --
10 "
(3a) If the enforcement of any direction, order or
declaration to which subsection (3) applies results in
the imposition on a principal of a penalty under the
Industrial Relations Act 1979 section 84A(5)(a)(ii), the
15 principal is to be taken to be an employer for the
purposes of that subparagraph.
(3b) In subsection (3a) --
"principal" has the meaning given to that term in
section 23D(1).
20 ".
43. Part VIII Division 1 and Part VIII Division 2 heading
inserted
Before section 56 the following Division and heading are
inserted in Part VIII --
25 "
Division 1 -- Preliminary
56AA. Terms used in this Part
(1) In this Part --
"bullying" has the meaning given to that term in
30 section 56AB;
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"contractor" and "principal" have the meanings
given to those terms in section 23D(1).
(2) A reference in Division 2 or 3 to an "employer", an
"employee", a "principal" or a "contractor" includes
5 a reference to a former employer, a former employee, a
former principal or a former contractor, as the case
requires.
56AB. Bullying
(1) When this Part refers to bullying it means unreasonable
10 or inappropriate behaviour at a workplace --
(a) that is repeatedly directed towards an employee
or contractor or a group of employees or
contractors; and
(b) that creates a risk to safety or health.
15 (2) When this Part refers to bullying it does not include --
(a) reasonable action taken in a reasonable manner
by an employer to transfer, demote, discipline,
counsel, retrench or dismiss an employee; or
(b) reasonable action taken in a reasonable manner
20 by a principal in relation to a contractor that is
action of a kind described in paragraph (a); or
(c) a decision by an employer, based on reasonable
grounds, not to award or provide a promotion,
transfer or benefit in connection with an
25 employee's employment; or
(d) a decision by a principal, based on reasonable
grounds, that, in connection with a contractor's
engagement, is a decision of a kind described in
paragraph (c); or
30 (e) reasonable administrative action taken in a
reasonable manner by an employer or a
principal in connection with an employee's
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employment or a contractor's engagement, as
the case may be; or
(f) reasonable action taken in a reasonable manner
under an enactment affecting an employee or
5 contractor.
Division 2 -- Discrimination
".
44. Section 56 amended
(1) Section 56(1) is amended by deleting "in any way treats an
10 employee or prospective employee less favourably than would
otherwise be the case" and inserting instead --
"
causes disadvantage to an employee or prospective
employee
15 ".
(2) After section 56(1) the following subsection is inserted --
"
(1a) If a principal causes disadvantage to a contractor for
the dominant or substantial reason that the
20 contractor --
(a) is or has been a member of a safety and health
committee; or
(b) performs or has performed any function as a
member of a safety and health committee; or
25 (c) gives or has given assistance or information to
an inspector, safety and health representative or
any member of a safety and health committee;
or
(d) makes or has made a complaint in relation to
30 safety or health to --
(i) the Commissioner; or
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(ii) an inspector; or
(iii) a person who is or was --
(I) a principal in relation to the
contractor; or
5 (II) another contractor in relation to
such a principal;
or
(iv) a safety and health representative; or
(v) a member of a safety and health
10 committee,
the principal commits an offence.
".
(3) After section 56(2) the following subsections are inserted --
"
15 (3) For the purposes of subsection (1), an employer causes
disadvantage to an employee if the employer --
(a) dismisses the employee from employment; or
(b) demotes the employee or fails to give the
employee a promotion that the employee could
20 reasonably have expected; or
(c) detrimentally alters the employee's
employment position; or
(d) detrimentally alters the employee's pay or other
terms and conditions of employment.
25 (4) For the purposes of subsection (1), a prospective
employer causes disadvantage to a prospective
employee if the prospective employer refuses to
employ the prospective employee.
(5) For the purposes of subsection (1a), a principal causes
30 disadvantage to a contractor if the principal --
(a) terminates the engagement of the contractor; or
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(b) subjects the contractor to any other detriment.
".
45. Sections 56A and 56B inserted
After section 56 the following sections are inserted --
5 "
56A. Claim may be referred to the Tribunal
(1) A person may --
(a) refer to the Tribunal a claim that --
(i) the person's employer or prospective
10 employer has caused disadvantage to
the person in contravention of
section 56(1); or
(ii) if the person is a contractor, a principal
in relation to the person has caused
15 disadvantage to the person in
contravention of section 56(1a);
and
(b) request the Tribunal to make one or more of the
orders provided for by section 56B.
20 (2) Subsection (1) applies whether or not --
(a) the employer or prospective employer has been
convicted of an offence under section 56(1); or
(b) the principal has been convicted of an offence
under section 56(1a).
25 (3) A referral under subsection (1) may also be made on a
person's behalf by an agent or legal practitioner
referred to in the Industrial Relations Act 1979
section 31.
(4) The Industrial Relations Act 1979 section 80E(1) does
30 not apply to a claim referred under subsection (1) by a
government officer within the meaning of that section.
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56B. Remedies that may be granted
(1) If, on the hearing of a claim under section 56A(1)(a)(i),
the Tribunal is satisfied that an employer has
contravened section 56(1), the Tribunal may order the
5 employer --
(a) if the disadvantage caused to the claimant
consisted of or included the claimant being
dismissed from employment --
(i) to reinstate the claimant; or
10 (ii) to pay to the claimant such sum of
money as the Tribunal considers
adequate as compensation for loss of
employment or loss of earnings or any
other detriment to which the claimant
15 was subjected; or
(iii) both to reinstate the claimant and to pay
the claimant the sum of money referred
to in subparagraph (ii),
as the Tribunal thinks fit; or
20 (b) if paragraph (a) does not apply to the
disadvantage caused to the claimant -- to pay
to the claimant such sum of money as the
Tribunal considers adequate as compensation
for loss of earnings or any other detriment to
25 which the claimant was subjected.
(2) Without limiting subsection (1), in determining a claim
under section 56A(1)(a)(i) in relation to an employer,
the Tribunal may make any order of the kind
mentioned in the Industrial Relations Act 1979
30 section 23A(3), (4) and (5)(a) as if the claim were a
claim to which section 23A of that Act applied.
(3) If, on the hearing of a claim under section 56A(1)(a)(i),
the Tribunal is satisfied that a prospective employer
has contravened section 56(1), the Tribunal may order
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that person to pay the claimant such sum of money as
the Tribunal thinks fit as compensation.
(4) If, on the hearing of a claim under
section 56A(1)(a)(ii), the Tribunal is satisfied that a
5 principal has contravened section 56(1a), the Tribunal
may order the principal to pay the claimant such sum
of money as the Tribunal thinks fit as compensation.
(5) In the determination of the amount of compensation for
any loss of employment, loss of earnings or other
10 detriment --
(a) the Tribunal is to have regard to any redress the
claimant has obtained under another enactment;
and
(b) the claimant is not entitled to compensation
15 both under this section and otherwise for the
same loss of employment, loss of earnings or
other detriment.
".
46. Part VIII Division 3 and Part VIII Division 4 heading
20 inserted
Before section 57 the following Division and heading are
inserted --
"
Division 3 -- Bullying
25 56C. Claims of bullying may be referred to the Tribunal
(1) A person may --
(a) refer to the Tribunal a claim that --
(i) if the person is an employee or
contractor -- the person has been
30 subjected to bullying at the workplace;
or
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(ii) if the person is an employer -- one or
more employees employed by the
person have been subjected to bullying
at the workplace; or
5 (iii) if the person is a principal -- one or
more contractors engaged by the person
have been subjected to bullying at the
workplace;
and
10 (b) request the Tribunal to make one or more of the
orders provided for by section 56F.
(2) Subsection (1) applies whether or not a person has been
convicted of an offence under this Act in relation to the
conduct that is the subject of the referral under that
15 subsection.
(3) A referral under subsection (1) may also be made on a
person's behalf by an agent or legal practitioner
referred to in the Industrial Relations Act 1979
section 31.
20 (4) The Industrial Relations Act 1979 section 80E(1) does
not apply to a claim referred under subsection (1) by a
government officer within the meaning of that section.
56D. Compulsory attendance at conciliation for claims of
bullying
25 (1) Subject to this section, the Tribunal may summon any
person to attend, at a time and place specified in the
summons, at conciliation proceedings under
section 51J in respect of a claim referred to the
Tribunal under section 56C(1).
30 (2) A summons under this section --
(a) is to be given in the form and manner
prescribed by regulations made by the Chief
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Commissioner under the Industrial Relations
Act 1979 section 113(1); and
(b) when so given, is to be taken, in any
proceedings relating to the summons, to have
5 been served on the person to whom it is
directed unless that person, in those
proceedings, satisfies the Tribunal or the Full
Bench, as the case may be, that he or she did
not receive the summons.
10 (3) In subsection (2) --
"Full Bench" has the meaning given to that term in the
Industrial Relations Act 1979 section 7(1).
(4) Any person so summoned must, except for good cause,
proof of which is on that person, attend for the
15 purposes of conciliation at the time and place specified
in the summons and continue to attend at that place as
directed by the Tribunal.
(5) The requirement to attend imposed by subsection (4) is
enforceable in accordance with section 51J(3) as if it
20 were a direction, order or declaration given or made by
the Tribunal under section 51J(3), and section 51J(3a)
applies accordingly in relation to the enforcement of
the requirement.
56E. Several claims may be heard together
25 (1) If --
(a) 2 or more claims are referred to the Tribunal
under section 56C(1); and
(b) each claim relates to --
(i) the bullying of one or more employees
30 employed by the same employer (the
"relevant employees"); or
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(ii) the bullying of one or more contractors
engaged by the same principal (the
"relevant contractors"),
the relevant employees or the relevant contractors, as
5 the case requires, may agree in writing that all the
claims may be heard and determined by the Tribunal at
the same time in the same proceeding.
(2) An agreement under subsection (1) is to be made
before the Tribunal has begun to hear any of the claims
10 to which the agreement applies.
(3) If the Tribunal is satisfied that it is appropriate to do so,
the Tribunal is to hear and determine all the claims to
which an agreement under subsection (1) applies at the
same time in the same proceeding.
15 (4) Nothing in this section limits the powers of the
Tribunal under the Industrial Relations Act 1979
section 27(1)(s) (as applied by section 51I).
56F. Remedies that may be granted
(1) If --
20 (a) a claim is referred to the Tribunal under
section 56C(1); and
(b) the Tribunal --
(i) endeavours to resolve the issues
involved in the claim by conciliation
25 under section 51J, but the parties do not
reach agreement for the resolution of
those issues; or
(ii) does not endeavour to resolve those
issues by conciliation under section 51J,
30 the Tribunal may hear and determine the claim in
accordance with section 51G.
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(2) If, on the hearing of a claim under section 56C(1), the
Tribunal is satisfied that a person has been subjected to
bullying by another person, the Tribunal may do one or
more of the following --
5 (a) order a person to do, or to refrain from doing,
any specified thing, including to refrain from
engaging in specified behaviour;
(b) without limiting paragraph (a), order an
employer or principal to make specified
10 arrangements to deal with bullying at the
workplace;
(c) without limiting paragraph (a), order a person
to complete, at the person's expense, a course
relevant to bullying;
15 (d) make a declaration that a person engaged in
bullying.
56G. Costs of representation may be awarded in certain
circumstances
(1) Despite the Industrial Relations Act 1979
20 section 27(1)(c) (as applied by section 51I), on hearing
and determining a claim to which section 56C(1)
applies, the Tribunal may make an order giving costs to
any party to the proceedings for the services of any
legal practitioner or agent of that party if, in the
25 opinion of the Tribunal, the proceedings have been
frivolously or vexatiously instituted or defended, as the
case requires, by the party against which the order is
made.
(2) An order made by the Tribunal under subsection (1) is
30 an instrument to which the Industrial Relations
Act 1979 section 83 applies.
Division 4 -- General
".
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Division 1 Preliminary
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Part 6 -- Amendments to the Workers' Compensation
and Injury Management Act 1981
Division 1 -- Preliminary
47. The Act amended
5 The amendments in this Part are to the Workers' Compensation
and Injury Management Act 1981.
Division 2 -- Amendments relating to reinstatement of
employment
48. Section 84AA amended
10 Section 84AA(1) is amended by deleting the penalty provision.
49. Section 84AB amended
Section 84AB(1) is amended by deleting the penalty provision.
50. Section 84AC inserted
After section 84AB the following section is inserted in
15 Part III --
"
84AC. Enforcement of sections 84AA(1) and 84AB(1)
(1) A contravention of section 84AA(1) or 84AB(1) is not
an offence, but those subsections are civil penalty
20 provisions for the purposes of the Industrial Relations
Act 1979 section 83E.
(2) In proceedings under the Industrial Relations Act 1979
section 83E for a contravention of section 84AA(1) by
an employer in respect of a worker, a declaration by the
25 IR Commission under section 84AL(6)(c) that the
employer failed to provide a position to the worker in
accordance with section 84AA(1) is prima facie
evidence that the employer contravened that provision.
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(3) In proceedings under the Industrial Relations Act 1979
section 83E for a contravention of section 84AB(1) by
an employer in respect of a worker, a declaration by the
IR Commission under section 84AL(6)(d) that the
5 employer dismissed the worker without complying
with section 84AB(1) is prima facie evidence that the
employer contravened that provision.
".
51. Part IIIA inserted
10 After Part III the following Part is inserted --
"
Part IIIA -- Proceedings for reinstatement of
employment
84AD. Terms used in this Part
15 In this Part --
"Chief Commissioner" has the meaning given to that
term in the IR Act section 7(1);
"commissioner" has the meaning given to that term in
the IR Act section 7(1);
20 "compensation order" has the meaning given to that
term in section 84AL(6)(b);
"industrial inspector" has the meaning given to that
term in the IR Act section 7(1);
"industrial magistrate's court" has the meaning
25 given to that term in the IR Act section 7(1);
"IR Act" means the Industrial Relations Act 1979;
"IR Commission" means The Western Australian
Industrial Relations Commission continued and
constituted under the IR Act;
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"reinstatement order", in relation to a worker, means
an order for --
(a) the reinstatement of the worker under the
IR Act section 23A(3); or
5 (b) the re-employment of the worker under the
IR Act section 23A(4),
as the IR Commission considers appropriate.
84AE. Conferral of jurisdiction on IR Commission
By this section the IR Commission has jurisdiction to
10 hear and determine applications that may be made to
the IR Commission under section 84AH.
84AF. Jurisdiction to be exercised by commissioner with
necessary qualifications
(1) The jurisdiction conferred by section 84AE in respect
15 of a matter is to be exercised by the IR Commission
constituted by a commissioner.
(2) In allocating a matter for the purposes of
subsection (1), the Chief Commissioner must have
regard to the desirability of the commissioner
20 concerned having relevant knowledge of this Act.
84AG. Applied provisions: practice, procedure and appeals
(1) The following provisions (the "applied provisions")
of the IR Act that apply to and in relation to the
exercise of the jurisdiction under the IR Act of the
25 IR Commission constituted by a commissioner apply to
the exercise of the jurisdiction conferred by
section 84AE --
(a) section 22B;
(b) section 26(1)(a) and (b), (2) and (3);
30 (c) section 27;
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(d) section 28;
(e) section 30;
(f) section 31(1), (2), (3), (5) and (6);
(g) section 32A;
5 (h) section 33;
(i) section 34;
(j) section 35;
(k) section 36;
(l) section 49(1), (2), (2a) and (3) to (12);
10 (m) section 90;
(n) section 91;
(o) section 92.
(2) The applied provisions have effect --
(a) subject to the provisions of this Part; and
15 (b) with the modifications that are provided for in
subsection (3); and
(c) with any modifications that are prescribed
under the IR Act section 113; and
(d) for the provisions referred to in
20 subsection (1)(a) to (k), with any other
modifications that the IR Commission
determines to be necessary or appropriate.
(3) For the purposes of subsection (1) --
(a) the IR Act section 31(1) has effect as if
25 paragraph (c) were deleted and the following
paragraph were inserted instead --
" (c) by a legal practitioner. "; and
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(b) the IR Act section 33(6) has effect as if
"section 44" were deleted and the following
were inserted instead --
"
5 the Workers' Compensation and Injury Management
Act 1981 section 84AK
";
and
(c) the IR Act section 90(1) has effect as if
10 paragraph (a) were deleted and the following
paragraph were inserted instead --
"
(a) on the ground that the decision is in excess of
jurisdiction;
15 ".
84AH. Application to IR Commission for reinstatement
order
(1) If --
(a) an employer dismisses a worker, who has been
20 incapacitated by injury, in the period that --
(i) begins on the day the injury occurred;
and
(ii) ends 12 months from the day the worker
becomes entitled to receive weekly
25 payments of compensation from the
employer in respect of the injury;
and
(b) the worker attains partial or total capacity for
work in that period,
30 the following persons may apply to the IR Commission
for a reinstatement order --
(c) the worker;
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(d) an organisation, as defined in the IR Act
section 7(1), of which the worker is, or is
eligible to be, a member;
(e) an association, as defined in the IR Act
5 section 7(1), that represents an organisation
referred to in paragraph (d);
(f) an organisation, as defined in the Workplace
Relations Act 1996 of the Commonwealth
section 4(1), of which the worker is, or is
10 eligible to be, a member.
(2) The applicant must serve a copy of the application on
the employer.
(3) Subject to subsection (4), the application is to be made
to the IR Commission not later than 28 days after the
15 end of the period referred to in subsection (1).
(4) The IR Commission may accept an application under
subsection (1) that is out of time if the IR Commission
considers that it would be unfair not to do so.
84AI. Parties to proceedings
20 Subject to the IR Act section 27(1)(j) (as applied by
section 84AG), the parties to proceedings on an
application under section 84AH are --
(a) the applicant; and
(b) the employer on whom or which a copy of the
25 application is served.
84AJ. Conciliation
(1) This section applies if an application is made to the
IR Commission under section 84AH.
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(2) If the IR Commission considers that the issues
involved in the application may be resolved by
conciliation --
(a) the IR Commission may endeavour to assist the
5 parties to reach an agreement on those issues;
and
(b) for that purpose the IR Commission may --
(i) arrange conferences of the parties or
their representatives presided over by
10 the IR Commission; and
(ii) arrange for the parties or their
representatives to confer among
themselves at a conference at which the
IR Commission is not present; and
15 (iii) otherwise encourage the parties to
exchange or divulge attitudes or
information that, in the opinion of the
IR Commission, would assist in the
resolution of the issues.
20 (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.
(4) If the IR Commission gives or makes a direction, order
or declaration under subsection (3), the IR Commission
25 must --
(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
30 declaration available to the parties as soon as is
practicable after it is given or made.
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(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
5 only 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
application about which they are unable to reach
10 agreement, the IR Commission may make
recommendations about those aspects of the
application.
(8) If the IR Commission --
(a) takes action under subsection (2)(a); and
15 (b) is satisfied that the parties have reached
agreement on all of the issues involved,
the IR Commission may, with the consent of the
parties, make a determination by order for the purposes
of section 84AE in terms of that agreement.
20 (9) Any --
(a) direction, order or declaration given or made by
the IR Commission under subsection (3); or
(b) order made by the IR Commission containing a
determination under subsection (8),
25 is enforceable under the IR Act section 84A as if it
were given or made under the IR Act section 32.
84AK. Compulsory attendance at conciliation
(1) Subject to this section, the IR Commission may
summon any person to attend, at a time and place
30 specified in the summons, at conciliation proceedings
under section 84AJ.
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(2) A summons under this section --
(a) is to be given in the form and manner
prescribed by regulations made by the Chief
Commissioner under the IR Act section 113(1);
5 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
10 proceedings, satisfies the IR Commission or the
Full Bench, as the case may be, that he or she
did not receive the summons.
(3) In subsection (2) --
"Full Bench" has the meaning given to that term in the
15 IR Act section 7(1).
(4) 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
20 directed by the IR Commission.
(5) The requirement to attend imposed by subsection (4) is
enforceable in accordance with section 84AJ(9) as if it
were a direction, order or declaration referred to in that
provision.
25 84AL. Determination of application where no resolution
by conciliation
(1) If --
(a) an application is made to the IR Commission
under section 84AH; and
30 (b) the IR Commission --
(i) endeavours to resolve the issues
involved in the application by
conciliation under section 84AJ, but the
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parties do not reach agreement for the
resolution of those issues; or
(ii) does not endeavour to resolve those
issues by conciliation under
5 section 84AJ,
the IR Commission may hear and determine the
application in accordance with section 84AE.
(2) Subject to subsection (4), the IR Commission may, for
the hearing and determination of the application, be
10 constituted by a commissioner who exercised
conciliation powers in relation to the application.
(3) If the commissioner referred to in subsection (2)
proposes to constitute the IR Commission for the
hearing and determination of the application, the
15 commissioner must, at the conclusion of the
conciliation proceeding, advise the parties of his or her
intention to do so.
(4) If, before the hearing commences, a party objects to the
IR Commission being constituted as proposed under
20 subsection (3), the commissioner must not constitute
the IR Commission for the hearing and determination
of the application.
(5) The commissioner is not to be taken to have exercised
conciliation powers in relation to an application merely
25 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 was not
30 presided over by the commissioner; or
(b) the commissioner arranged for the parties or
their representatives to confer among
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Division 2 Amendments relating to reinstatement of employment
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themselves at a conference at which the
commissioner was not present.
(6) In determining the application, the IR Commission
may do one or more of the following --
5 (a) subject to subsections (9) and (11), make a
reinstatement order;
(b) subject to subsections (10) and (11), make an
order (a "compensation order") that the
employer pay to the worker an amount of
10 compensation for loss or injury caused by the
dismissal of the worker;
(c) make a declaration that the employer failed to
provide a position to the worker in accordance
with section 84AA(1);
15 (d) make a declaration that the employer dismissed
the worker without complying with
section 84AB(1);
(e) make an order dismissing the application.
(7) The IR Act section 23A(5), (11) and (12) apply, with
20 any necessary modifications, for the purposes of the
making of a reinstatement order.
(8) The IR Act section 23A(7) to (12) apply, with any
necessary modifications, for the purposes of the
making of a compensation order.
25 (9) The IR Commission may make a reinstatement order
only if the IR Commission is satisfied that the worker
is fit for the kind of employment to which the worker is
to be reinstated or in which the worker is to be
re-employed.
30 (10) The IR Commission may make a compensation order
only if the IR Commission considers that the making of
a reinstatement order would be impracticable.
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Amendments relating to reinstatement of employment Division 2
s. 51
(11) The IR Commission must not make a reinstatement
order or compensation order if the employer proves
that the worker was dismissed on the ground of serious
or wilful misconduct.
5 84AM. Referral of question as to worker's capacity for
work for determination by arbitrator
(1) If an issue involved in an application under
section 84AH is a question as to the worker's capacity
for work, the IR Commission may refer the question to
10 the Director for determination by an arbitrator.
(2) The question is to be referred to the Director in the
form and manner prescribed by regulations made by
the Chief Commissioner under the IR Act
section 113(1).
15 (3) If a question as to the worker's capacity for work is
referred under subsection (1), the IR Commission --
(a) is not to hear and determine the application
under section 84AH until the IR Commission
has been given the decision of the arbitrator on
20 that question; and
(b) to the extent that the determination of that
application relates to the worker's capacity for
work -- is bound by that decision.
(4) If a question as to the worker's capacity for work is
25 referred under subsection (1) --
(a) the decision of the arbitrator on that question;
and
(b) despite the IR Act section 49 (as applied by
section 84AG), the determination of the
30 application under section 84AH to the extent
that that determination gives effect to that
decision,
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Division 2 Amendments relating to reinstatement of employment
s. 51
are not subject to an appeal or amenable to judicial
review.
84AN. Proceedings, functions, practice and procedure of
arbitrators
5 (1) The Governor, on the recommendation of WorkCover
WA, may make regulations providing for --
(a) the functions and proceedings of an arbitrator
determining a question as to a worker's
capacity for work referred to the Director under
10 section 84AM(1); and
(b) the practice and procedure governing those
functions and proceedings.
(2) Except as otherwise provided by regulations referred to
in subsection (1), the provisions of this Act that apply
15 to or in relation to the examination, hearing and
determination of disputes by arbitrators do not apply to
or in relation to a question as to a worker's capacity for
work that is referred to the Director under
section 84AM(1).
20 84AO. Conferral of jurisdiction on industrial magistrate's
court
By this section an industrial magistrate's court has
jurisdiction to hear and determine applications that may
be made to the court under section 84AP.
25 84AP. Application to enforce reinstatement or
compensation order
If an employer contravenes or fails to comply with a
reinstatement order or compensation order, the
following persons may apply to an industrial
30 magistrate's court for the enforcement of the order --
(a) the worker;
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Amendments relating to reinstatement of employment Division 2
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(b) an organisation, as defined in the IR Act
section 7(1), of which the worker is, or is
eligible to be, a member;
(c) an association, as defined in the IR Act
5 section 7(1), that represents an organisation
referred to in paragraph (b);
(d) an organisation, as defined in the Workplace
Relations Act 1996 of the Commonwealth
section 4(1), of which the worker is, or is
10 eligible to be, a member;
(e) an industrial inspector.
84AQ. Applied provisions: practice, procedure and appeals
(1) The following provisions (the "applied provisions")
of the IR Act that apply to and in relation to the
15 exercise of the jurisdiction under the IR Act of an
industrial magistrate's court apply to the exercise of the
jurisdiction conferred by section 84AO --
(a) section 82A;
(b) section 83B(3) to (10);
20 (c) section 83C;
(d) section 83F;
(e) section 84;
(f) section 90;
(g) section 91;
25 (h) section 92;
(i) section 102A(2).
(2) The applied provisions have effect --
(a) with the modification provided for in
subsection (3); and
30 (b) with any modifications that are prescribed
under the IR Act section 113; and
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Division 3 Other amendments
s. 52
(c) for sections 82A, 83B, 83C and 83F, with any
other modifications that the industrial
magistrate's court determines to be necessary
or appropriate.
5 (3) For the purposes of subsection (1), the IR Act
section 83C(1) applies as if "the Registrar, a deputy
registrar, or" were deleted.
84AR. Other rights of workers not limited
Nothing in this Part limits any other rights of a worker
10 under this Act or any other written law.
84AS. Part does not derogate from IR Act
The functions conferred on the IR Commission under
this Part are in addition to, and do not derogate from,
any function of the IR Commission under the IR Act.
15 ".
Division 3 -- Other amendments
52. Section 5 amended
Section 5(1) is amended in the definition of "industrial award"
as follows:
20 (a) in paragraph (d) --
(i) by deleting "or certified agreement," and
inserting instead --
" , collective agreement or APCS, ";
(ii) at the end of the paragraph by deleting the
25 comma and inserting instead --
" ; or ";
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Other amendments Division 3
s. 53
(b) after paragraph (d) by inserting --
"
(e) a transitional award, as that term is defined
in the Workplace Relations Act 1996 of the
5 Commonwealth Schedule 6 clause 2(1); or
(f) a pre-reform certified agreement, as that term
is defined in the Workplace Relations
Act 1996 of the Commonwealth Schedule 7
clause 1; or
10 (g) a notional agreement preserving State awards
or preserved collective State agreement, as
those terms are defined in the Workplace
Relations Act 1996 of the Commonwealth
Schedule 8 clause 1(1),
15 ";
(c) after each of paragraphs (a) and (b) by inserting --
" or ".
53. Section 83 amended
Section 83(1) is amended by deleting "certified" and inserting
20 instead --
" collective ".
54. Schedule 1 amended
Schedule 1 clause 11(2) is amended in the definition of
"Amount E" by deleting "under the Minimum Conditions of
25 Employment Act 1993;" and inserting instead --
"
if at that time the worker were an employee to whom
the Minimum Conditions of Employment Act 1993
applied;
30 ".
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Industrial and Related Legislation Amendment Bill 2007
Part 7 Amendments to the Minimum Conditions of Employment Act 1993
s. 55
Part 7 -- Amendments to the Minimum Conditions of
Employment Act 1993
55. The Act amended
The amendments in this Part are to the Minimum Conditions of
5 Employment Act 1993.
56. Section 7 amended
Section 7(c) is deleted and the following paragraph is inserted
instead --
"
10 (c) where the condition is implied in a contract of
employment --
(i) subject to the IR Act section 28A, under
Part II of that Act; or
(ii) under the IR Act section 83 as if it were
15 a provision of an award, industrial
agreement or order other than an order
made under section 32 or 66 of that Act.
".
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Amendments to Public Sector Management Act 1994 Part 8
s. 57
Part 8 -- Amendments to Public Sector Management
Act 1994
57. The Act amended
The amendments in this Part are to the Public Sector
5 Management Act 1994.
58. Section 52 amended
Section 52(2) is amended by deleting "is not an industrial matter
for the purposes of the Industrial Relations Act 1979." and
inserting instead --
10 "
is not --
(a) an industrial matter for the purposes of the
Industrial Relations Act 1979; or
(b) a matter that can be the subject of a claim under
15 the Industrial Relations Act 1979 section 28A.
".
59. Section 78 amended
(1) Section 78(2) is amended by deleting "section 29(b)" and
inserting instead --
20 " section 29(1)(b) ".
(2) Section 78(3) is amended by deleting "section 29(b)" and
inserting instead --
" section 29(1)(b) ".
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