Industrial Relations Act 1979

 

Industrial Relations Act 1979

CONTENTS

Part I — Introductory

1.Short title2

2.Commencement2

3.Application off‑shore2

4.Repeal5

6.Objects5

7.Terms used6

Part II — The Western Australian Industrial Relations Commission

Division 1 — Constitution of the Commission

8.Constitution of Commission18

9.Qualifications for appointment of President and Chief Commissioner19

10.Age limit for members of Commission20

11.Oath of office and secrecy20

12.Commission court of record21

13.Protection of members of Commission and others21

14.Exercise of powers and jurisdiction of President and Commission21

14A. Dual Federal and State appointments22

14B. Performance of duties by dual Federal and State appointees22

15.Constitution of Full Bench and Commission in Court Session23

16.Powers and duties of Chief Commissioner23

16A.Delegation by Chief Commissioner25

17.Appointment of acting members of Commission26

18.Extension of appointment27

19.Duty of members of Commission27

20.Conditions of service of members of Commission28

21.Resignation from office30

22.Tenure subject to good behaviour30

Division 2 — General jurisdiction and powers of the Commission

22A. Terms used31

22B.Commission to act with due speed31

23.Jurisdiction of Commission under this Act31

23A.Powers of Commission on claims of unfair dismissal34

23B.Power to prevent external interference with employment issues36

24.Jurisdiction to decide whether matter is industrial37

25.Allocation of industrial matters38

26.Commission to act according to equity and good conscience38

27.Powers of Commission40

28.Exercise of powers prior to hearing and determination of matter43

29.By whom matters may be referred43

29AA.Certain claims not to be determined44

29A. Service of claims and applications46

29B.Parties to proceedings48

30.Intervention by Minister on behalf of State49

31.Representation of parties to proceedings49

32.Reference of industrial matters for conciliation50

32A.Conciliation and arbitration functions of Commission to be unlimited52

33.Evidence before Commission53

34.Decision to be in form of award, order, or declaration54

35.Decision to be first drawn up as minutes55

36.Decision to be sealed and deposited56

Division 2A — Awards

36A.Application for award coverage for non‑award employees56

37.Effect, area and scope of awards57

38.Named parties to awards57

39.Date of operation of award59

40.Power to vary or cancel award59

40A.Incorporation of industrial agreement provisions into awards by consent60

40B.Power to vary awards to reflect statutory and other requirements, to promote efficiency and to facilitate implementation61

Division 2B — Industrial agreements

40C.Terms used62

41.Industrial agreements63

41A.Registration of industrial agreement65

42.Initiation of bargaining for industrial agreement65

42A.Response to initiation of bargaining67

42B.Good faith bargaining for industrial agreement67

42C.Code of good faith69

42D.Duty of good faith does not require concluded industrial agreement70

42E.Conciliation and arbitration to assist bargaining70

42F.Restriction on Commission’s power in relation to industrial agreements70

42G.Parties may agree to Commission making orders as to terms of agreement71

42H.Commission may declare that bargaining has ended72

42I.Commission may make enterprise orders72

42J.Effect of enterprise order74

42K.Term of enterprise order75

42L.When bargaining ends76

42M.Regulations76

43.Power to vary, renew or cancel industrial agreement77

Division 2C — Holding of compulsory conferences

44.Compulsory conference77

Division 2D — Miscellaneous provisions relating to awards, orders and agreements

46.Interpretation of awards and orders82

47.Cancellation of defunct awards, and deletion of employers from awards in certain cases83

48.Boards of Reference to be established85

48A. Awards and agreements to make provision for resolution of disputes87

48B.Superannuation88

Division 2E — Appeals to the Full Bench

49.Appeals to Full Bench from decision of Commission under this Act90

Division 2F — Keeping of and access to employment records

49D.Keeping of employment records92

49E.Access to employment records94

49F.Enforcement of this Division95

Division 2G — Right of entry and inspection by authorised representatives

49G.Terms used95

49H.Right of entry for discussions with employees96

49I.Right of entry to investigate breaches96

49J.Provisions as to authorities issued to representatives98

49K.No entry to premises used for habitation100

49L.Authority must be shown on request100

49M.Conduct giving rise to civil penalties101

49N.Power of Commission restricted101

49O.Enforcement of this Division102

Division 3 — General Orders

50.Power of Commission to make General Orders102

50A.Commission to determine rates of pay for purposes of MCE Act and awards103

50B.Matters relevant to setting rates for apprentices and trainees106

51A. General Orders as to public sector discipline107

51B.Commission’s power to make General Orders as to matters for which minimum conditions of employment are prescribed by MCE Act108

51BA.Notification of hearing109

51BB.Right to be heard109

51BC.Commissioner may deal with certain proceedings110

51BD.Registrar may prepare and publish provisions resulting from General Order110

51BE.Publication of order110

Division 3A — MCE Act functions

Subdivision 1 — Preliminary

51C.Term used: Commission110

Subdivision 3 — Casual employees’ loading

51I.Casual employees’ loading111

Subdivision 4 — Orders under this Division generally

51J.Notification of hearings under this Division111

51K.Right to be heard112

51L.Restrictions on matters that orders under this Division can provide for112

51M.Publication of orders112

51N.Variation or rescission112

Division 3B — Collective agreements and good faith bargaining

51O.Terms used113

51P.Representation by organisation114

51Q.Bargaining agents114

51R.Initiating bargaining for collective agreement115

51S.Good faith bargaining for collective agreement116

51T.Application of sections 42D and 42E116

Division 4 — Industrial organisations and associations

52.Terms used117

53.Qualifications for and basis of registration of organisations of employees117

54.Qualifications for and basis of registration of organisations of employers118

55.Requirements attaching to organisation seeking registration118

56.Rules to provide for secret ballots etc.121

56A. Rules may provide for casual vacancies to be filled in alternative manner123

57.Elections to be by secret postal ballot123

58.Registration of organisation124

59.Registered name125

60.Incorporation of organisation upon registration126

61.Effect of registration126

62.Alteration of registered rules126

63.Records to be kept by organisation127

64.Registrar may direct that form of membership register be altered129

64A. Resignation from an organisation129

64B. Membership to end if subscription not paid130

64C. Effect of sections 64A and 64B in relation to rules130

64D. Purging the register130

65.Audit and filing of accounts of organisation131

65A.Powers of auditor131

66.Power of President to deal with complaints by members, certain other persons or Registrar against organisation132

67.Registration of industrial associations135

68.Declaration by Full Bench as to certain functions135

69.Conduct of election by Registrar or Electoral Commissioner135

70.Offences in relation to elections138

71.Provisions relating to State branches of Federal organisations139

71A. Adoption of rules of Federal organisations143

72.Amalgamation of organisations144

72A. Coverage of employee organisations145

72B. AMA may represent interests of medical practitioners147

73.Summons for cancellation or suspension of registration of organisation148

Division 5 — Duties of officers of organisations

74.Duties152

75.Auditor to report on compliance with duties154

76.Rules are not to conflict with section 74 or 75154

77.Proceedings for breach of duty155

78.Failure to comply with order156

79.Effect on or of other proceedings156

80.Disqualification for breach of duty158

Part IIA — Constituent authorities

Division 2 — Public service arbitrator and appeal boards

80C. Construction and application of Division, and terms used159

80D. Appointment of public service arbitrators161

80E. Jurisdiction of Arbitrator162

80F. By whom matters may be referred to Arbitrator164

80G. Provisions of Part II Division 2 to apply164

80H. Public Service Appeal Board165

80I. Appeals166

80J. Institution of appeals167

80K.Proceedings of Boards168

80L. Certain provisions of Part II Division 2 to apply168

Division 3 — Railways Classification Board

80M. Terms used169

80N. Railways Classification Board established170

80O.Terms of office etc.172

80P. Continuation in office173

80Q. Validity of acts of Board174

80R. Jurisdiction of Board174

80S. By whom matters may be referred to Board176

80U. Reclassification of vacant offices by Public Transport Authority177

80V. Proceedings of Board177

80W. Provisions of Part II Division 2 to 2G to apply178

Part IIB — Enquiries

80ZE. Enquiries179

Part IIC — Arrangements with other industrial authorities

80ZF. References to Australian Commission180

80ZG. Joint proceedings180

80ZH. Reference of industrial matters to Australian Commission for determination under this Act181

80ZI. Conferences with other industrial authorities181

80ZJ. Exercise of powers conferred under Commonwealth Act182

Part III — Enforcement of Act, awards, industrial agreements and orders

81.Establishment of industrial magistrate’s courts183

81A. Jurisdiction under this Act183

81AA. Jurisdiction under other Acts183

81B. Constitution of industrial magistrate’s courts184

81C. Sittings185

81CA. Procedure, enforcement etc.185

81CB.Industrial magistrate’s court judgments, enforcement of187

81D. Clerks of industrial magistrate’s courts187

81E.Representation188

81F.Industrial magistrate’s court records, access to188

82.Jurisdiction of Full Bench189

82A. Time for application190

83.Enforcement of certain instruments190

83A.Underpayment of employee192

83B.Enforcement of unfair dismissal order193

83C.Costs of enforcement orders195

83D.Proceedings for offences196

83E.Contravention of a civil penalty provision196

83F.Payment of costs and penalties198

84.Appeal to Full Bench from industrial magistrate’s court199

84A. Proceedings before Full Bench for enforcement of this Act200

Part IV — Western Australian Industrial Appeal Court

85.Constitution of Western Australian Industrial Appeal Court203

86.Jurisdiction of Court204

87.Decision of Court205

88.Judgments, enforcement of205

90.Appeal to Court from Commission206

91.Representation207

92.Powers of Court in respect of contempt207

Part V — The Registrar and other officers of the Commission

93.Appointment and duties of officers209

94.Authority to do acts as directed211

95.Duties of deputy registrar211

96.Delegation of certain functions to Registrar212

Part VIA — Freedom of association

96A.Terms used215

96B.Certain requirements relating to membership of organisations to have no effect215

96C.Discrimination because of membership of organisation216

96D.Refusal to employ and discriminatory and injurious acts against persons performing work for employers because of membership or non‑membership of employee organisation217

96E.Discriminatory and injurious acts against persons because of non‑membership of employee organisation218

96F.Further provision as to penalties under sections 96C, 96D and 96E219

96G.Responsibility of employee organisations and officers and members220

96H.Responsibility of corporations and their officers221

96I.Onus of proof in certain cases221

96J.Industrial magistrate’s court may order compliance222

96K.Appeal against decision under section 96J223

96L.Power of industrial magistrate’s court to make certain orders after conviction224

Part VID — Employer‑employee agreements

Division 1 — Preliminary

97U.Terms used225

Division 2 — The making of an EEA

97UA.Employer and employee may make an EEA227

97UB.EEA may deal with post‑employment matters228

97UC.Other provisions about making an EEA228

97UD.Making of EEA by person with a mental disability228

97UE.Effect of EEA229

97UF.EEA not to be made while industrial agreement in operation229

97UG.Documents and information to be given to employee before EEA signed230

97UH.Application of section 97UG if draft EEA amended231

97UI.EEA information statement232

97UJ.Bargaining agents232

97UK.Prohibited conduct relating to bargaining agents233

Division 3 — Form and content of EEA

97UL.Formalities234

97UM.Additional formalities for EEA made with employee under 18235

97UN.EEA must provide for resolution of disputes235

97UO.What must be included in EEA dispute provisions236

97UP.Industrial authority may be specified as arbitrator237

Division 4 — Commencement, duration and variation

97UQ.Commencement of EEA for new employee237

97UR.Commencement of EEA for existing employee238

97US.Expiry238

97UT.Employment conditions on expiry of EEA238

97UU.No power to vary an EEA239

97UV.Cancellation of EEA239

97UW.Termination of contract of employment240

Division 5 — Registration of EEAs

Subdivision 1 — Preliminary

97UX.Delegation by Registrar240

Subdivision 2 — Registration

97UY.Lodgment for registration241

97UZ.Failure to lodge EEA made with new employee242

97V.Recovery of money242

97VA.Employment conditions of new employee if EEA not lodged for registration within allowed period242

97VB.Registrar to be satisfied that EEA in order for registration243

97VC.Powers conferred on Registrar243

97VD.Registrar to notify parties of certain deficiencies in EEA244

97VE.Parties may correct deficiencies244

97VF.Registration245

97VG.Refusal of registration245

97VH.When refusal has effect246

97VI.Cessation of EEA for new employee where registration refused246

97VJ.Recovery of money246

97VK.Employment conditions of new employee if registration refused247

97VL.Registrar to provide copy247

Subdivision 3 — Appeal against refusal of registration

97VM.Appeal against refusal of registration248

97VN.Relevant industrial authority to notify parties of certain deficiencies in EEA248

97VO.Parties may make corrections249

97VP.Determination of appeal250

97VQ.Proceedings under this Subdivision250

Division 6 — No‑disadvantage test

Subdivision 1 — Definition

97VR.Terms used251

97VS.No‑disadvantage test defined251

97VT.Determination of award, comparable award or relevant order by Registrar253

97VU.All entitlements to be considered253

97VV.Particular provision for case where Supported Wage System applies254

Subdivision 2 — Principles to be followed in application of no‑disadvantage test

97VW.Term used: Commission254

97VX.Commission to establish principles and guidelines254

97VY.Registrar and Commission to give effect to instrument255

97VZ.Minister and certain bodies may seek amendment255

97W.Requirement for public comment256

97WA.Public comment on amendment or substitute instrument256

Division 7 — Register

97WB.Terms used257

97WC.Register257

97WD.Inspection of register258

97WE.Commission may exempt an EEA from inspection258

97WF.Protected information not to be disclosed258

97WG.Certified copies259

Division 8 — Disputes

97WH.Terms used260

97WI.Arbitration jurisdiction of relevant industrial authority260

97WJ.Representation260

97WK.Referral to relevant industrial authority where delay alleged in dispute resolution261

97WL.Several disputes may be subject of one arbitration262

97WM.Power of arbitrator to obtain information262

97WN.Orders and determinations of arbitrators262

97WO.Further provisions about orders and determinations264

97WP.Enforcement of orders and determinations264

97WQ.Industrial magistrate’s court not bound by interpretations of EEA264

Division 9 — EEAs for persons with mental disabilities

Subdivision 1 — Preliminary

97WR.Terms used265

97WS.Relationship of this Division to Guardianship and Administration Act 1990266

97WT.Registrar to notify Public Advocate of applications and orders for approval of representative266

97WU.Public Advocate to notify Registrar of relevant guardianship orders267

Subdivision 2 — Approval of person to act on behalf of person with a mental disability

97WV.Application for approval268

97WW.Requirements for application269

97WX.Forms to be prescribed269

97WY.Who may be approved as a representative270

97WZ.Approval of representative270

97X.Effect of order271

97XA.Refusal of approval271

97XB.Appeal against refusal of approval272

97XC.Determination of appeal272

Subdivision 3 — Functions of representative

97XD.Functions273

97XE.Effect of acts of representative274

97XF.Duties of representative274

Subdivision 4 — Termination of representative’s authority to act

97XG.Duration of order approving representative275

97XH.Resignation of representative275

97XI.Application to State Administrative Tribunal for revocation order275

97XJ.Opportunity to be heard276

97XK.State Administrative Tribunal may make revocation order276

97XL.Application of Guardianship and Administration Act 1990 for purposes of section 97XK277

Subdivision 5 — Approval of new representative

97XM.Application for new approval where representative dies or approval is revoked278

97XN.Approval of representative279

97XO.Effect of order279

97XP.Refusal of approval280

97XQ.Appeal against refusal of approval280

Subdivision 6 — Miscellaneous

97XR.Powers of Registrar280

97XS.EEA not affected by revocation of order or vacancy in position of representative281

97XT.Register281

97XU.Certified copies281

97XV.Information not to be disclosed282

97XW.Proceedings under this Division282

Division 10 — Certain conduct prohibited

97XX.Purpose of this Division283

97XY.Enforcement of prohibitions in this Division283

97XZ.Making employment, transfer or promotion conditional on EEA being entered into284

97Y.Certain advertising285

97YA.Exception to sections 97XZ and 97YB285

97YB.Employer offering EEA to give choice as to employment arrangements285

97YC.Order for compliance with section 97YB286

97YD.Threats and intimidation287

97YE.Misinformation288

97YF.Dismissal or detriment because of refusal to make or cancel EEA288

97YG.Employee’s remedy for breach of section 97YF288

97YH.Burden of proof289

Division 11 — General

97YI.Review of Divisions 5, 6 and 7290

97YJ.Regulations291

Part VII — Miscellaneous

98.Industrial inspectors292

99.Wage rates in awards not affected by repeal of basic wage provisions294

102.Obstruction294

102A.Institution of proceedings by officers295

103.Application may relate to more than one matter in certain circumstances296

104.Prosecutions296

105.Publication of awards etc.297

106. Judicial notice of signatures and appointments297

107. No costs to be awarded against Registrar, deputy registrar or industrial inspector298

108. Organisations and associations not affected by certain Imperial Acts298

109. Dues payable to organisation or association may be sued for summarily298

110.Disputes between organisation or association and its members299

111.No premiums to be taken for employment299

112.Invalidity of certain provisions in organisation rules300

112A.Registration of industrial agents301

113.Regulations303

114.Prohibition of contracting out305

115.Police officers306

Schedule 1 — Matters to be published in the “Western Australian Industrial Gazette

Schedule 3 — Police officers

1.Term used: Arbitrator308

2.Application of Act to police officer308

3.Western Australian Police Union of Workers309

Schedule 4 — Registration requirements for EEAs

1.When EEA is in order for registration310

Schedule 5 — Powers to obtain information, and related provisions

1.Powers to obtain information312

2.Obstruction312

3.False statements312

4.Failure to comply with notice313

5.Legal professional privilege313

6.Incriminating answers or documents313

Notes

Compilation table314

Provisions that have not come into operation321

Defined Terms

 

Industrial Relations Act 1979

An Act to consolidate and amend the law relating to the prevention and resolution of conflict in respect of industrial matters, the mutual rights and duties of employers and employees, the rights and duties of organisations of employers and employees, and for related purposes.

Part I  Introductory

1.Short title

This Act may be cited as the Industrial Relations Act 1979 1.

[Section 1 amended by No. 94 of 1984 s. 4.]

2.Commencement

The provisions of this Act shall come into operation on such day or days as is or are, respectively, fixed by proclamation 1.

3.Application off‑shore

(1)Subject to subsections (5) and (6) where any industry is carried on — 

(a)partly within the State and partly within an area to which this subsection applies; or

(b)wholly or partly in an area to which this subsection applies, and — 

(i)facilities for servicing or supporting that industry are maintained in the State by or on behalf of the employer concerned;

(ii)the employer concerned is connected with the State;

(iii)that industry is carried on from, or on, or by means of, an aircraft, ship, or vessel certificated, registered, or licensed under a law of the State or by a public authority, or which is required to be so certificated, registered, or licensed;

(iv)that industry is carried on from, or on, or by means of, a rig or other structure, installation, or equipment, the use or function of which is regulated by the State or by the State and the Commonwealth, or is required to be so regulated;

(v)that industry is authorised or regulated by the State or by the State and the Commonwealth; or

(vi)that industry is carried on pursuant to a law of the State,

then this Act applies to and in relation to that industry in so far as any employment relates to the area to which this subsection applies and in any such case this Act also applies to and in relation to any industrial matter or industrial action related thereto, and any jurisdiction, function, duty, or power exercisable, imposed, or conferred by or under this Act extends thereto.

(2)An employer shall, for the purposes of subsection (1), be connected with the State if that employer — 

(a)is domiciled in the State;

(b)is resident in the State, normally or temporarily;

(c)being a body corporate, is —

(i)registered, incorporated, or established under a law of the State;

(ii)taken to be registered in the State; or

(iii)a related body corporate of such a body for the purposes of the Corporations Act 2001 of the Commonwealth;

(d)in connection with the industry concerned, has an office or a place of business in the State; or

(e)is the holder of a licence, lease, tenement, permit, or other authority, granted under a law of the State or by a public authority under or by virtue of which the industry is carried on.

(3)The areas to which subsection (1) applies are — 

(a)that area situate west of 129° of east longitude reckoning from the meridian of Greenwich , that is part of the areas known as and comprised within — 

(i)the Australian fishing zone as defined by the Commonwealth Fisheries Act 1952 2; or

(ii)the continental shelf, within the meaning of the Convention on the Continental Shelf a copy of which in the English language is set out in Schedule 1 to the Commonwealth Petroleum (Submerged Lands) Act 1967 3;

(b)any other area seaward of the State to which from time to time the laws of the State apply or, by a law of the Commonwealth, are applied.

(4)For the purposes of any proceedings under this Act an averment in the application or process — 

(a)that an employer was, pursuant to subsection (2), at a specified time or during a specified period or at all material times connected with the State; or

(b)that any conduct, event, circumstance, or matter occurred, or that any place is situate, within an area referred to in subsection (3),

shall, in the absence of proof to the contrary, be deemed to be proved.

(5)Subsections (1), (2), and (3) shall not be construed as applying this Act to or in relation to any person, circumstance, thing, or place by reason only of the operation of paragraph (c) of the interpretation of the term industry set out in section 7(1) unless this Act would also apply by reason of the operation of subsection (1).

(6)Effect shall be given to subsections (1), (2), and (3) only where this Act or any provision of this Act would not otherwise apply as a law of the State, or be applied as a law of the Commonwealth, to or in relation to any person, circumstance, thing, or place.

[Section 3 amended by No. 10 of 1982 s. 28; No. 10 of 2001 s. 111.]

4.Repeal

The Industrial Arbitration Act 1912 is hereby repealed.

[5.Deleted by No. 79 of 1995 s. 66(2).]

6.Objects

The principal objects of this Act are — 

(a)to promote goodwill in industry and in enterprises within industry;

(aa)to provide for rights and obligations in relation to good faith bargaining;

(ab)to promote the principles of freedom of association and the right to organise;

(ac)to promote equal remuneration for men and women for work of equal value;

(ad)to promote collective bargaining and to establish the primacy of collective agreements over individual agreements;

(ae)to ensure all agreements registered under this Act provide for fair terms and conditions of employment;

(af)to facilitate the efficient organisation and performance of work according to the needs of an industry and enterprises within it, balanced with fairness to the employees in the industry and enterprises;

(ag)to encourage employers, employees and organisations to reach agreements appropriate to the needs of enterprises within industry and the employees in those enterprises;

(b)to encourage, and provide means for, conciliation with a view to amicable agreement, thereby preventing and settling industrial disputes;

(c)to provide means for preventing and settling industrial disputes not resolved by amicable agreement, including threatened, impending and probable industrial disputes, with the maximum of expedition and the minimum of legal form and technicality;

(ca)to provide a system of fair wages and conditions of employment;

(d)to provide for the observance and enforcement of agreements and awards made for the prevention or settlement of industrial disputes;

(e)to encourage the formation of representative organisations of employers and employees and their registration under this Act and to discourage, so far as practicable, overlapping of eligibility for membership of such organisations;

(f)to encourage the democratic control of organisations so registered and the full participation by members of such an organisation in the affairs of the organisation; and

(g)to encourage persons, organisations and authorities involved in, or performing functions with respect to, the conduct of industrial relations under the laws of the State to communicate, consult and co‑operate with persons, organisations and authorities involved in, or performing functions with respect to, the conduct or regulation of industrial relations under the laws of the Commonwealth.

[Section 6 inserted by No. 94 of 1984 s. 5; amended by No. 20 of 2002 s. 114 and 127.]

7. Terms used

(1)In this Act, unless the contrary intention appears —

alteration, in relation to rules of an organisation, includes amendment, addition to, variation, rescission or substitution;

apprentice means a person who is an apprentice under a training contract registered under the Vocational Education and Training Act 1996 Part 7 Division 2;

association means an association that is registered under Division 4 of Part II;

Australian Commission means the Australian Industrial Relations Commission established by the Commonwealth Act;

award means an award made by the Commission under this Act;

calling means any trade, craft, occupation, or classification of an employee;

canvasser means any person wholly and solely employed in the writing of industrial insurance business or in the collection of premiums at not longer intervals than one month in respect of such insurance, or in both, but does not include a person who directly or indirectly carries on or is concerned in the carrying on or conduct of any other business or occupation in conjunction with that of industrial insurance;

Chamber means the body known as the Chamber of Commerce and Industry of Western Australia (Inc);

Chief Commissioner includes an acting Chief Commissioner;

civil penalty provision means a provision of this Act, or any other written law, that is specified to be a civil penalty provision for the purposes of section 83E;

Commission means the body continued and constituted under this Act under the name of The Western Australian Industrial Relations Commission;

Commission in Court Session means the Commission constituted as provided by section 15(2);

commissioner means a commissioner appointed under this Act and includes the Chief Commissioner, the Senior Commissioner and an acting commissioner;

Commonwealth Act means the Workplace Relations Act 1996 of the Commonwealth;

constituent authority means the public service arbitrator, a Public Service Appeal Board, or the Railways Classification Board, established or appointed under Part IIA;

Council means the body known as the Trades and Labor Council of Western Australia;

Court means the Western Australian Industrial Appeal Court continued and constituted under this Act;

decision includes award, order, declaration or finding;

declaration means a declaration made by the Commission under this Act;

deputy registrar means a deputy registrar appointed pursuant to this Act;

employee means — 

(a)any person employed by an employer to do work for hire or reward including an apprentice;

(b)any person whose usual status is that of an employee;

(c)any person employed as a canvasser whose services are remunerated wholly or partly by commission or percentage reward; or

(d)any person who is the lessee of any tools or other implements of production or of any vehicle used in the delivery of goods or who is the owner, whether wholly or partly, of any vehicle used in the transport of goods or passengers if he is in all other respects an employee,

but does not include any person engaged in domestic service in a private home unless — 

(e)more than 6 boarders or lodgers are therein received for pay or reward; or

(f)the person so engaged is employed by an employer, who is not the owner or occupier of the private home, but who provides that owner or occupier with the services of the person so engaged;

employer includes — 

(a)persons, firms, companies and corporations; and

(b)the Crown and any Minister of the Crown, or any public authority,

employing one or more employees and also includes a labour hire agency or group training organisation that arranges for an employee (being a person who is a party to a contract of service with the agency or organisation) to do work for another person, even though the employee is working for the other person under an arrangement between the agency or organisation and the other person;

employer‑employee agreement or EEA means an employer‑employee agreement provided for by section 97UA;

employment record means a record kept under section 49D;

enterprise order has the meaning given by section 42I(1);

final offer arbitration means arbitration in which an issue is decided by the Commission by awarding, without qualification or amendment, that one of the final proposals made by the parties concerned which, viewed in its entirety is, in the opinion of the Commission, the more or the most reasonable, as the case may be;

finding means a decision, determination or ruling made in the course of proceedings that does not finally decide, determine or dispose of the matter to which the proceedings relate;

Full Bench means the Commission constituted as provided by section 15(1);

group training organisation means an organisation that manages the employment and training of apprentices under contracted work based arrangements for the purpose of hosting those apprentices out to other employers;

industrial action means any act, omission, or circumstance done, effected, or brought about by an organisation or employer or employee or by any other person for the purpose, or in the opinion of the Commission for the purpose, of compelling an employer or an employee or an organisation to accept any terms or conditions of employment or to enforce compliance with any demand relating to employment not including an application made under this Act;

industrial agreement means an agreement registered by the Commission under this Act as an industrial agreement;

Industrial Gazette means the Western Australian Industrial Gazette published pursuant to this Act;

industrial inspector means an industrial inspector appointed pursuant to this Act;

industrial magistrate’s court means industrial magistrate’s court established under section 81(1);

industrial matter means any matter affecting or relating or pertaining to the work, privileges, rights, or duties of employers or employees in any industry or of any employer or employee therein and, without limiting the generality of that meaning, includes any matter affecting or relating or pertaining to — 

(a)the wages, salaries, allowances, or other remuneration of employees or the prices to be paid in respect of their employment;

(b)the hours of employment, leave of absence, sex, age, qualification, or status of employees and the mode, terms, and conditions of employment including conditions which are to take effect after the termination of employment;

(c)the employment of children or young persons, or of any person or class of persons, in any industry, or the dismissal of or refusal to employ any person or class of persons therein;

(ca)the relationship between employers and employees;

(d)any established custom or usage of any industry, either generally or in the particular locality affected;

(e)the privileges, rights, or duties of any organisation or association or any officer or member thereof in or in respect of any industry;

(f)in respect of apprentices, these additional matters —

(i)their wage rates and, subject to the Vocational Education and Training Act 1996 Part 7 Division 2, other conditions of employment; and

(ii)the wages, allowances and other remuneration to be paid to them, including for time spent in performing their obligations under training contracts registered under the Vocational Education and Training Act 1996 Part 7 Division 2, whether at their employers’ workplaces or not; and

(iii)without limiting subparagraphs (i) and (ii), those other rights, duties and liabilities of them and their employers under such contracts that do not relate to the training and assessment they are to undergo, whether at their employers’ workplaces or not;

(g)any matter relating to the collection of subscriptions to an organisation of employees with the agreement of the employee from whom the subscriptions are collected including —

(i)the restoration of a practice of collecting subscriptions to an organisation of employees where that practice has been stopped by an employer; or

(ii)the implementation of an agreement between an organisation of employees and an employer under which the employer agrees to collect subscriptions to the organisation;

[(h)deleted]

(i)any matter, whether falling within the preceding part of this interpretation or not, where — 

(i)an organisation of employees and an employer agree that it is desirable for the matter to be dealt with as if it were an industrial matter; and

(ii)the Commission is of the opinion that the objects of this Act would be furthered if the matter were dealt with as an industrial matter;

and also includes any matter of an industrial nature the subject of an industrial dispute or the subject of a situation that may give rise to an industrial dispute but does not include — 

(j)compulsion to join an organisation of employees to obtain or hold employment;

(k)preference of employment at the time of, or during, employment by reason of being or not being a member of an organisation of employees;

(l)non­‑employment by reason of being or not being a member of an organisation of employees; or

(m)any matter relating to the matters described in paragraph (j), (k) or (l);

industry includes each of the following — 

(a)any business, trade, manufacture, undertaking, or calling of employers;

(b)the exercise and performance of the functions, powers, and duties of the Crown and any Minister of the Crown, or any public authority;

(c)any calling, service, employment, handicraft, or occupation or vocation of employees,

whether or not, apart from this Act, it is, or is considered to be, industry or of an industrial nature, and also includes — 

(d)a branch of an industry or a group of industries;

irregularity, in relation to an election for an office, includes a breach of the rules of an organisation, and any act, omission, or other means by which the full and free recording of votes, by persons entitled to record votes, and by no other persons, or a correct ascertainment or declaration of the results of the voting is, or is attempted to be, prevented or hindered;

judge means a judge of the Supreme Court;

labour hire agency means a person or entity that conducts a business of the kind commonly known as a labour hire agency;

legal practitioner means an Australian legal practitioner within the meaning of that term in the Legal Profession Act 2008 section 3;

MCE Act means the Minimum Conditions of Employment Act 1993;

member of the Commission means the President or a commissioner and includes the President or a commissioner when he is performing the functions of a constituent authority, or of a member of a constituent authority, but does not include any other member or acting member of a constituent authority;

Mines and Metals Association means the body known as the Australian Mines and Metals Association (Incorporated);

office in relation to an organisation means — 

(a)the office of a member of the committee of management of the organisation;

(b)the office of president, vice president, secretary, assistant secretary, or other executive office by whatever name called of the organisation;

(c)the office of a person holding, whether as trustee or otherwise, property of the organisation, or property in which the organisation has any beneficial interest;

(d)an office within the organisation for the filling of which an election is conducted within the organisation; and

(e)any other office, all or any of the functions of which are declared by the Full Bench pursuant to section 68 to be those of an office in the organisation,

but does not include the office of any person who is an employee of the organisation and who does not have a vote on the committee of management of the organisation;

officer means a person who carries out, or whose duty is or includes the carrying out of, the whole or part of the functions of an office in an organisation;

organisation means an organisation that is registered under Division 4 of Part II;

post‑secondary education institution means an institution or part of an institution established or continued by or under the University of Western Australia Act 1911, the Curtin University of Technology Act 1966, the Murdoch University Act 1973, the Edith Cowan University Act 1984 or the Vocational Education and Training Act 1996;

premises includes any land, building, structure, mine, mine working, aircraft, ship or other vessel, vehicle and place, and any part of it;

President means the President of the Commission and includes an acting President;

presiding judge means the presiding judge of the Court;

principal executive officer in relation to an organisation or association means the president or chairman of that organisation or association;

public authority means the Governor in Executive Council, any Minister of the Crown in right of the State, the President of the Legislative Council or the Speaker of the Legislative Assembly or the President of the Legislative Council and the Speaker of the Legislative Assembly, acting jointly, as the case requires, under the Parliamentary and Electorate Staff (Employment) Act 1992, the Governor or his or her delegate under the Governor’s Establishment Act 1992, State Government department, State trading concern, State instrumentality, State agency, or any public statutory body, corporate or unincorporate, established under a written law but does not include a local government or regional local government;

public hospital means a public hospital as defined in the Hospitals and Health Services Act 1927;

public service officer means a public service officer within the meaning of the Public Sector Management Act 1994;

published in the required manner means published in the next available issue of the Industrial Gazette and —

(a)in a newspaper circulating throughout the State; or

(b)on an internet website maintained by the Commission;

record means any thing or process —

(a)upon or by which information is recorded or stored; or

(b)by means of which a meaning can be conveyed by any means in a visible or recoverable form,

whether or not the assistance of some electronic, electrical, mechanical, chemical or other machine or process is required to convey the information or meaning;

Registrar means the Registrar appointed pursuant to this Act;

registration, in relation to an organisation, means registration under Division 4 of Part II by authority of the Full Bench;

repealed Act means the Act repealed by section 4;

representative has the meaning given by section 97X or 97XO;

represented person has the meaning given by section 97X or 97XO;

secondary office, in relation to a person who holds an office of member of the Commission and is subsequently appointed to an office of the Australian Commission pursuant to section 14A, means the office of member of the Australian Commission;

Senior Commissioner includes an acting Senior Commissioner;

subscription means any subscription, fee or dues payable by a member for or in respect of membership of an organisation;

vary in relation to an award or industrial agreement means to add a new provision or to add to, alter, amend or rescind an existing provision.

(1a)A matter relating to — 

(a)the dismissal of an employee by an employer; or

(b)the refusal or failure of an employer to allow an employee a benefit under his contract of service,

is and remains an industrial matter for the purposes of this Act even though their relationship as employee and employer has ended.

[(2)deleted]

(3)A matter or claim that has been referred, or appeal that has been brought, to the Tribunal provided for by section 51G of the Occupational Safety and Health Act 1984 under a provision mentioned in —

(a)subsection (1) of that section; or

(b)section 102(1) of the Mines Safety and Inspection Act 1994; or

(c)clause 69(1) of Schedule 1 to the Petroleum and Geothermal Energy Resources Act 1967, clause 69(1) of Schedule 1 to the Petroleum Pipelines Act 1969, or clause 70(1) of Schedule 5 to the Petroleum (Submerged Lands) Act 1982,

is not an industrial matter.

(4)Subsections (3) and (4) of section 34 do not apply to a determination that is made contrary to subsection (3)(b) or to any proceeding based on that determination, and in the determination of any application for a prerogative writ or declaratory judgment no regard shall be had to the existence of any right of appeal under this Act.

(5)In this Act —

(a)a reference to an industrial matter includes a reference to a matter relating to bargaining in good faith for an industrial agreement or collective agreement (as that term is defined in the Commonwealth Act); and

(b)a reference to jurisdiction to inquire into and deal with an industrial matter includes a reference to jurisdiction to assist parties to bargain for an industrial agreement or collective agreement (as that term is defined in the Commonwealth Act).

(6)Subject to subsection (7), for the purposes of the definitions of employee and 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 employing the person, or each person in the group, to do work.

(7)Subsection (6) has effect only to the extent necessary to enable a claim of the kind referred to in section 29(1)(b)(ii) to be referred to and dealt with by the Commission in respect of a person who would not be an employee but for the operation of subsection (6).

(8)Notes in this Act are provided to assist understanding and do not form part of the Act.

[Section 7 inserted by No. 94 of 1984 s. 6; amended by No. 83 of 1987 s. 38; No. 119 of 1987 s. 5; No. 73 of 1990 s. 45; No. 99 of 1990 s. 4; No. 44 of 1991 s. 5; No. 40 of 1992 s. 8; No. 15 of 1993 s. 4; No. 32 of 1994 s. 14; No. 103 of 1994 s. 18; No. 1 of 1995 s. 4, 26 and 49; No. 30 of 1995 s. 77; No. 79 of 1995 s. 30; No. 14 of 1996 s. 4; No. 42 of 1996 s. 71; No. 3 of 1997 s. 29 4 and 35; No. 36 of 1999 s. 247; No. 20 of 2002 s. 6, 128, 142, 149, 178, 185, 190(1), 191(1) and (2) and 194(2); No. 65 of 2003 s. 41(2); No. 51 of 2004 s. 70(2); No. 59 of 2004 s. 112; No. 68 of 2004 s. 87(2); No. 13 of 2005 s. 49(2)(b); No. 36 of 2006 s. 24 and 67; No. 35 of 2007 s. 97(2); No. 21 of 2008 s. 668(2); No. 44 of 2008 s. 53(2)‑(6); amended in Gazette 15 Aug 2003 p. 3686.]

[Part 1A (s. 7A‑7G) deleted by No. 20 of 2002 5 s. 111(4) and 113(1).]

Part II — The Western Australian Industrial Relations Commission

[Heading amended by No. 94 of 1984 s. 7.]

Division 1 — Constitution of the Commission

8.Constitution of Commission

(1)The Commission by the name The Western Australian Industrial Commission established under the repealed Act is hereby continued in existence subject to this Act under the name The Western Australian Industrial Relations Commission.

(2)The Commission shall consist of the following members — 

(a)a President;

(b)a Chief Commissioner;

(c)a Senior Commissioner; and

(d)such number of other commissioners as may, from time to time, be necessary for the purposes of this Act,

who shall be respectively appointed to their offices by the Governor by commission in Her Majesty’s name.

[(2a)deleted]

(3A)At least one commissioner who holds office under subsection (2)(d) must, in addition to the other attributes required for appointment, have —

(a)knowledge of or experience in the field of occupational safety and health; and

(b)knowledge of the Occupational Safety and Health Act 1984, the Mines Safety and Inspection Act 1994, the Petroleum and Geothermal Energy Resources Act 1967, the Petroleum Pipelines Act 1969 or the Petroleum (Submerged Lands) Act 1982,

sufficient for exercising the jurisdiction that the commissioner designated under section 16(2A) is required to exercise.

(3)The order of seniority of commissioners is — 

(a)Chief Commissioner;

(b)Senior Commissioner;

(c)other commissioners according to the dates of their appointments unless 2 or more of their appointments are made on the same day in which case their order of seniority is such as shall be assigned to them by the Governor when appointing them.

[Section 8 amended by No. 94 of 1984 s. 8 and 66; No. 51 of 2004 s. 70(3); No. 68 of 2004 s. 87(3); No. 13 of 2005 s. 49(3); No. 35 of 2007 s. 97(3); No. 36 of 2009 s. 18.]

9.Qualifications for appointment of President and Chief Commissioner

(1)A person is not eligible for appointment as the President unless the person is a lawyer and has had not less than 5 years’ legal experience.

(1aa)In subsection (1) —

lawyer means an Australian lawyer within the meaning of that term in the Legal Profession Act 2008 section 3;

legal experience means —

(a)standing and practice as a legal practitioner; or

(b)judicial service (including service as a judge of a court, a magistrate or other judicial officer) in the State or elsewhere in a common law jurisdiction; or

(c)a combination of both kinds of legal experience mentioned in paragraphs (a) and (b).

(1a)The President during the term of his or her office — 

(a)is entitled to the style and title of The Honourable (name), President of The Western Australian Industrial Relations Commission; and

(b)in appropriate circumstances — 

(i)may be addressed as “Your Honour”; and

(ii)may be referred to as “His Honour” or “Her Honour”, as the case may be.

(2)A person shall not be appointed Chief Commissioner unless — 

(a)he has had experience at a high level in industrial relations; or

(b)he has, not less than 5 years previously, obtained a degree of a university or an educational qualification of similar standard after studies considered by the Governor to have substantial relevance to the duties of the Chief Commissioner.

[Section 9 inserted by No. 94 of 1984 s. 9; amended by No. 99 of 1990 s. 5; No. 21 of 2008 s. 668(3).]

10.Age limit for members of Commission

A person who has attained the age of 65 years is ineligible for appointment as a member of the Commission and each member of the Commission shall retire from his office upon attaining the age of 65 years.

[Section 10 inserted by No. 94 of 1984 s. 9.]

11.Oath of office and secrecy

(1)Subject to subsection (2), before entering upon his office each member of the Commission shall make oath before a judge that he will faithfully and impartially perform the duties of his office and that he will not, except in the discharge of those duties, disclose to any person any evidence or other matter brought before the Commission.

(2)When a commissioner is appointed the Chief Commissioner or the Senior Commissioner he is not required to make again the oath referred to in subsection (1).

[Section 11 amended by No. 94 of 1984 s. 66.]

12.Commission court of record

(1)The Commission is a court of record and shall have an official seal.

(2)All courts, judges, and persons acting judicially shall take judicial notice of the seal of the Commission affixed to a document and shall presume that it has been duly so affixed.

13.Protection of members of Commission and others

A person who is — 

(a)a member of the Commission;

(ab)an industrial magistrate appointed under section 81B;

(b)a member of a Board of Reference referred to in section 48; or

(c)a constituent authority or a member of a constituent authority, as the case requires,

has, in the performance of his functions and duties as such a member or industrial magistrate or as a constituent authority, as the case requires, the same protection and immunity as a judge.

[Section 13 inserted by No. 119 of 1987 s. 6; amended by No. 59 of 2004 s. 112.]

14.Exercise of powers and jurisdiction of President and Commission

(1)The President has the jurisdiction expressly conferred on him by this Act and in the exercise of that jurisdiction he constitutes the Commission and he has and may exercise such powers of the Commission as may be necessary or appropriate thereto.

(2)A commissioner sitting or acting alone constitutes the Commission and, except as otherwise provided in this Act, he has and may exercise while so sitting or acting, all the powers and jurisdiction of the Commission.

(3)Where more than one member of the Commission is sitting or acting at the same time in the exercise of the jurisdiction of the Commission, each such member of the Commission constitutes the Commission.

14A. Dual Federal and State appointments

A person who is a member of the Commission may be appointed as a member of the Australian Commission, and a person so appointed may, subject to section 22(2)(c), at the same time hold the offices of member of the Commission and member of the Australian Commission but not otherwise.

[Section 14A inserted by No. 99 of 1990 s. 6.]

14B. Performance of duties by dual Federal and State appointees

(1)As agreed from time to time by the Chief Commissioner and the President of the Australian Commission, a person who holds an office of member of the Commission and an office of member of the Australian Commission — 

(a)may perform the duties of the secondary office; and

(b)may exercise, in relation to a particular matter — 

(i)any powers that the person has as a member of the Commission; and

(ii)any powers that the person has as a member of the Australian Commission.

(2)The Minister may give directions in writing to the Chief Commissioner with respect to agreements under subsection (1) and the Chief Commissioner shall give effect to every such direction and shall not enter into any agreement under subsection (1) that is contrary to those directions.

(3)Directions under subsection (2) shall be limited to matters of administration and shall not deal with matters of conciliation or arbitration.

(4)The Minister shall cause a copy of any direction given under subsection (2) to be laid before each House of Parliament within 15 sitting days of that House after the date on which the direction was given.

[Section 14B inserted by No. 99 of 1990 s. 6.]

15.Constitution of Full Bench and Commission in Court Session

(1)The Full Bench shall be constituted by not less than 3 members of the Commission one of whom shall be the President.

(2)The Commission in Court Session shall be constituted by not less than 3 commissioners sitting or acting together.

16.Powers and duties of Chief Commissioner

(1)In subsections (1aa) to (1ac) —

Commission includes the Full Bench, the Commission in Court Session and a constituent authority.

(1aa)The Chief Commissioner is responsible for matters of an administrative nature relating to the Commission and members of the Commission.

(1ab)Subject to this Act, the Chief Commissioner may allocate and reallocate the work of the Commission and may assign or appoint commissioners for the purposes of constituting the Commission, or altering the constitution of the Commission, in relation to a matter.

(1ac)When it is continuing to deal with and deciding a matter that has been reallocated, or in relation to which its constitution has been altered, the Commission can have regard to —

(a)any record of the proceedings of the Commission in relation to the matter before the reallocation or alteration; or

(b)any evidence taken in the proceedings before the reallocation or alteration.

(1a)The Chief Commissioner may assign a commissioner to sit or act alone as the Commission or to sit or act as a member of the Full Bench or the Commission in Court Session notwithstanding that that commissioner is for the time being appointed as or to a constituent authority.

(2A)The Chief Commissioner must, in writing, designate one commissioner, who holds office under section 8(2)(d) and who satisfies the additional requirements referred to in section 8(3A), to exercise the jurisdiction conferred by the Occupational Safety and Health Act 1984 section 51G.

(2B)Without affecting the Chief Commissioner’s duty under subsection (2A) to ensure that, at any one time, one commissioner is designated, the Chief Commissioner —

(a)may at or after the time when a commissioner is designated under subsection (2A), in writing, specify a date when the designation ceases to have effect; and

(b)may, in writing, vary any date so specified.

(2C)The designation of a commissioner under subsection (2A) to exercise the jurisdiction conferred by the Occupational Safety and Health Act 1984 section 51G does not preclude the commissioner from also performing other functions as a commissioner under this Act.

(2D)The commissioner who, immediately before commencement, was the commissioner whose appointment satisfied the requirements of section 8(2a) (as it was before the commencement) is, on and from commencement, to be taken to be designated under subsection (2A) to exercise the jurisdiction conferred by the Occupational Safety and Health Act 1984 section 51G.

(2E)In subsection (2D) —

commencement means the commencement of the Occupational Safety and Health Legislation Amendment Act 2009 section 19 1.

(2)The Chief Commissioner — 

[(a)deleted]

(b)shall, before 1 October in each year, make a written report to the Minister relating to the operation of this Act up to the last preceding 30 June;

(c)shall, before making the report referred to in paragraph (b), consult with the President; and

(d)may require the commissioners to attend a conference of commissioners for the purposes of paragraph (b) or for any other purpose.

(3)Where the Chief Commissioner is unable to attend to his duties under this Act, whether on account of illness or otherwise, or where there is a vacancy in the office of Chief Commissioner, the duties and powers of the Chief Commissioner devolve on the commissioner who is next in order of seniority and not himself absent or unable to perform those duties, unless the Governor appoints some other person to be acting Chief Commissioner.

[Section 16 amended by No. 121 of 1982 s. 4; No. 94 of 1984 s. 10 and 66; No. 1 of 1995 s. 53; No. 14 of 2005 s. 4; No. 36 of 2009 s. 19.]

16A.Delegation by Chief Commissioner

(1)The Chief Commissioner may delegate to another member of the Commission any power or duty of the Chief Commissioner under another provision of this Act.

(2)The delegation must be in writing signed by the Chief Commissioner.

(3)A person to whom a power or duty is delegated in accordance with this section cannot delegate that power or duty.

(4)A person exercising or performing a power or duty that has been delegated to the person in accordance with this section is taken to do so in accordance with the terms of the delegation unless the contrary is shown.

(5)Nothing in this section limits the ability of the Chief Commissioner to perform a function through an officer or agent.

[Section 16A inserted by No. 14 of 2005 s. 5.]

17.Appointment of acting members of Commission

(1)Where a member of the Commission is, or is expected to be, unable to attend to his duties under this Act, whether on account of illness or otherwise, the Governor may appoint a person to be acting President, acting Chief Commissioner, acting Senior Commissioner or an acting commissioner, as the case may require, for such period as the Governor determines.

(1a)Where the office of President is vacant, or is expected to become vacant, the Governor may appoint a person to be acting President.

(1b)An acting President appointed under subsection (1a) holds office for such period, not longer than 2 years, as is specified in the instrument of appointment and, upon the expiration of the period, is eligible for reappointment.

(2)A person shall not be appointed acting President or acting Chief Commissioner unless he holds the relevant qualifications prescribed in section 9.

[(3)deleted]

(4)If, under this section, a person receives an appointment to act in an office, the rights and obligations of the person in relation to the office are, subject to the terms of that appointment, as prescribed for the office.

[Section 17 amended by No. 121 of 1982 s. 5; No. 94 of 1984 s. 11; No. 1 of 1995 s. 53; No. 14 of 2005 s. 6.]

18.Extension of appointment

(1)Notwithstanding the retirement of a member of the Commission or the expiry of the period for which an acting member of the Commission has been appointed under this Act, the Governor may extend his period of office for such further period as the Governor determines, in order to enable him to complete all matters, proceedings, or inquiries that he has entered upon and has not completed before the retirement or the expiry.

(2)The Governor may from time to time extend any further period determined by him under subsection (1) notwithstanding the expiry of that further period for such further period or periods as he thinks fit.

(3)The continuation in office of a retired member of the Commission under subsection (1) does not prevent —

(a)the appointment of a person to fill the office from which the member retired; or

(b)in the case of a retired President, the appointment of a person as acting President under section 17(1a).

(4)The continuation in office of an acting member of the Commission under subsection (1) does not prevent —

(a)the appointment of another person to act in the office in which the acting member acted; or

(b)in the case of an acting President, the appointment of a person as the President.

[Section 18 amended by No. 94 of 1984 s. 12; No. 14 of 2005 s. 7.]

19.Duty of members of Commission

Each member of the Commission shall keep himself acquainted with industrial affairs and conditions.

20.Conditions of service of members of Commission

(1)The President shall receive salary and allowances or reimbursements at the same rate as a puisne judge.

(2)The offices of the members of the Commission, other than the President are to be regarded, for the purposes of the Salaries and Allowances Act 1975 and any other written law, as having been prescribed for the purposes of section 6(1)(e) of that Act.

[(3)‑(7)deleted]

(8)A commissioner shall, while he holds his office, be deemed to be an employee within the meaning of and for the purposes of the Superannuation and Family Benefits Act 1938 6, 7.

(8a)For the purposes of any calculation or determination under the Superannuation and Family Benefits Act 1938 6 the duration of — 

(a)any service by a person as a commissioner that occurs after the commencement day;

(b)any period for which a person is deemed to have continued in service under the State following his retirement as a commissioner on or after the commencement day; and

(c)any period for which a person might have remained in service under the State but for — 

(i)his death after the commencement day while serving as a commissioner; or

(ii)his retirement as a commissioner on or after the commencement day on the ground of invalidity or physical or mental incapacity to perform his duties,

shall be deemed to be increased by 100% 7.

(8b)In subsection (8a) commencement day means the day of the coming into operation of section 3 of the Industrial Arbitration Amendment Act (No. 2) 1984 1, 7.

(8c)If a person is a contributor within the meaning of the Superannuation and Family Benefits Act 1938 6 immediately before that person is appointed the President, that person may continue to be such a contributor notwithstanding that appointment 7.

(8d)While a person to whom subsection (8c) applies continues to be a contributor under the Superannuation and Family Benefits Act 1938 6, that Act applies to and in relation to that person, and if that person ceases to be a contributor — 

(a)before attaining the age of 60 years that person shall be deemed to have resigned;

(b)on or after attaining the age of 60 years but before attaining the age of 65 years that person shall be deemed to have elected to retire; or

(c)on attaining 65 years that person shall be deemed to have retired,

under that Act on the day that person so ceases to be a contributor and, in each case referred to in paragraphs (b) and (c), a pension is payable to that person, and that person’s widow or widower and children after the death of that person, but the pension otherwise payable under the last‑mentioned Act to him or her, and that person’s widow or widower and children after his or her death, shall be reduced in accordance with that Act by the amount of the State share of the first‑mentioned pension paid to him or her, and that person’s widow or widower and children after his or her death 7.

(9)Where a commissioner was immediately before his appointment as a commissioner, an officer of the Public Service of the State, he retains his existing and accruing rights and for the purpose of determining those rights, his service as a commissioner shall be taken into account as if it were service within the Public Service of the State.

(10)The rights of a commissioner to paid leave of absence and to lump sum payments on ceasing to hold office for the money equivalent of leave of absence shall be not less than those of a permanent officer under the Public Sector Management Act 1994.

(11)The President is entitled to the same conditions in respect of leave of absence as a judge.

(12)The provisions of the Judges’ Salaries and Pensions Act 1950 that relate to pensions apply, with such modifications as are necessary, to and in relation to the President, and to and in relation to a surviving spouse, de facto partner or child of the President after the death of the President, in the same manner as they apply to and in relation to a judge to whom that Act applies, and to and in relation to a surviving spouse, de facto partner or child of such a judge, and for that purpose the term judge in that Act includes the President.

(13)In subsections (11) and (12) President includes any person who acted or held office as President after the coming into operation of section 3 of the Industrial Arbitration Amendment Act (No. 2) 1984 1.

[Section 20 amended by No. 121 of 1982 s. 6; No. 92 of 1984 s. 3 and 4; No. 82 of 1987 s. 8; No. 99 of 1990 s. 7; No. 20 of 2002 s. 186(1) 5; No. 28 of 2003 s. 89.]

21.Resignation from office

A member of the Commission may resign his office by writing under his hand addressed to the Governor and the resignation takes effect on the day on which it is received by the Governor or such later day as is specified in the writing.

22.Tenure subject to good behaviour

(1)Subject to subsection (2)(c), the members of the Commission shall hold their offices during good behaviour, subject to a power of removal by the Governor upon the address of both Houses of Parliament.

(2)The office of a member of the Commission shall become vacant if — 

(a)he is removed from the office pursuant to subsection (1);

(b)he retires pursuant to section 10 or resigns pursuant to section 21; or

(c)except with the approval of the Governor, he accepts the office of member of the Australian Commission.

[Section 22 amended by No. 94 of 1984 s. 13; No. 99 of 1990 s. 8; No. 1 of 1995 s. 53.]

Division 2 — General jurisdiction and powers of the Commission

22A. Terms used

In this Division and Divisions 2A to 2G — 

Commission means the Commission constituted otherwise than as a constituent authority;

industrial matter does not include a matter in respect of which, subject to Division 3, a constituent authority has exclusive jurisdiction under this Act.

[Section 22A inserted by No. 94 of 1984 s. 14; amended by No. 20 of 2002 s. 121(1).]

22B.Commission to act with due speed

In the performance of its functions the Commission is to act with as much speed as the requirements of this Act and a proper consideration of the matter before it permit.

[Section 22B inserted by No. 20 of 2002 s. 150.]

23.Jurisdiction of Commission under this Act

(1)Subject to this Act, the Commission has cognizance of and authority to enquire into and deal with any industrial matter.

(2)Where by or under any other Act power is conferred on a person or body to appoint officers or employees for the purposes of that Act or to fix or determine the salaries, wages, or other remuneration, or other conditions of employment, of officers or employees appointed for those purposes, or to do both of those things — 

(a)the jurisdiction that the Commission would have but for that other Act to hear and determine any matter or dispute relating to the salaries, wages, or other remuneration, or other conditions of employment, of those officers or employees is not affected by that power conferred by or pursuant to that other Act; and

(b)where there is any inconsistency between a decision of the Commission relating to any such matter or dispute and any decision in the exercise or purported exercise of that power conferred by or under that other Act, to the extent of the inconsistency the former prevails and the latter is of no force or effect.

(2a)Notwithstanding subsections (1) and (2), the Commission does not have jurisdiction to enquire into or deal with any matter in respect of which a procedure referred to in section 97(1)(a) of the Public Sector Management Act 1994 is, or may be, prescribed under that Act.

(3)The Commission in the exercise of the jurisdiction conferred on it by this Part shall not — 

(a)prohibit the employment of employees on any day of the week or restrict in any other way the number of days or hours in the week during which any operation may be carried on in any industry or by any employer but nothing in this paragraph — 

(i)prevents the registration with the Commission of any industrial agreement that contains or provides for any such prohibition or restriction; or

(ii)prevents the Commission from fixing the rates for overtime, work on holidays, shift work, weekend work, and other special work, including allowances as compensation for overtime or any such work;

(b)regulate the rates of salary or wages, or the conditions of employment of any person who holds an office for which the remuneration payable is determined or recommended pursuant to the Salaries and Allowances Act 1975;

(c)make an award or order empowering a representative of an organisation to enter any part of — 

(i)the premises of an employer, the principal use of which premises is for habitation by the employer and his household; or

(ii)a private home in which a person engaged in domestic service is employed by an employer, who is not the owner or occupier of that private home, but who provides that owner or occupier with the services of the person so engaged;

(d)regulate the suspension from duty in, discipline in, dismissal from, termination of, or reinstatement in, employment of any employee or any one of a class of employees if there is provision, however expressed, by or under any other Act for or in relation to a matter of that kind and there is provision, however expressed, by or under that other Act for an appeal in a matter of that kind;

(e)provide for — 

(i)compulsion to join an organisation to obtain or hold employment; or

(ii)non‑employment by reason of being or not being a member of an organisation;

(f)provide for preference of employment at the time of, or during, employment by reason of being or not being a member of an organisation;

(g)limit the working hours of employees engaged in the agricultural and pastoral industry but nothing in this paragraph prevents the registration with the Commission of any industrial agreement that contains or provides for any such limitation;

(h)on a claim of harsh, oppressive or unfair dismissal —

(i)in the case of an application under section 44, make any order except an order that is authorised by section 23A or 44; and

(ii)in any other case, make any order except an order that is authorised by section 23A.

[Section 23 amended by No. 82 of 1980 s. 2; No. 121 of 1982 s. 7; No. 94 of 1984 s. 15 and 66; No. 119 of 1987 s. 7; No. 15 of 1993 s. 6; No. 1 of 1995 s. 27 and 40; No. 3 of 1997 s. 30 4; No. 20 of 2002 s. 137 and 143.]

[23AA.Deleted by No. 3 of 1997 s. 22 4.]

23A.Powers of Commission on claims of unfair dismissal

(1)The Commission may make an order under this section if the Commission determines that the dismissal of an employee was harsh, oppressive or unfair.

(2)In determining whether the dismissal of an employee was harsh, oppressive or unfair the Commission shall have regard to whether the employee —

(a)at the time of the dismissal, was employed for a period of probation agreed between the employer and employee in writing or otherwise; and

(b)had been so employed for a period of less than 3 months.

(3)The Commission may order the employer to reinstate the employee to the employee’s former position on conditions at least as favourable as the conditions on which the employee was employed immediately before dismissal.

(4)If the Commission considers that reinstatement would be impracticable, the Commission may order the employer to re‑employ the employee in another position that the Commission considers —

(a)the employer has available; and

(b)is suitable.

(5)The Commission may, in addition to making an order under subsection (3) or (4), make either or both of the following orders —

(a)an order it considers necessary to maintain the continuity of the employee’s employment;

(b)an order to the employer to pay to the employee the remuneration lost, or likely to have been lost, by the employee because of the dismissal.

(6)If, and only if, the Commission considers reinstatement or re‑employment would be impracticable, the Commission may, subject to subsections (7) and (8), order the employer to pay to the employee an amount of compensation for loss or injury caused by the dismissal.

(7)In deciding an amount of compensation for the purposes of making an order under subsection (6), the Commission is to have regard to —

(a)the efforts (if any) of the employer and employee to mitigate the loss suffered by the employee as a result of the dismissal;

(b)any redress the employee has obtained under another enactment where the evidence necessary to establish the claim for that redress is also the evidence necessary to establish the claim before the Commission; and

(c)any other matter that the Commission considers relevant.

(8)The amount ordered to be paid under subsection (6) is not to exceed 6 months’ remuneration of the employee.

(9)For the purposes of subsection (8) the Commission may calculate the amount on the basis of an average rate received by the employee during any relevant period of employment.

(10)For the avoidance of doubt, an order under subsection (6) may permit the employer concerned to pay the compensation required in instalments specified in the order.

(11)An order under this section may require that it be complied with within a specified time.

(12)The Commission may make any ancillary or incidental order that the Commission thinks necessary for giving effect to any order made under this section.

[Section 23A inserted by No. 20 of 2002 s. 138(1) 5.]

23B.Power to prevent external interference with employment issues

(1)In this section —

employment claim means a claim made to the Commission in which any of the following is an issue —

(a)the refusal or failure of an employer to employ a person (the affected person);

(b)an employer’s employment or transfer of an employee to work at a particular place or site, or refusal or failure to employ or transfer an employee to work at a particular place or site;

(c)the reinstatement or re‑employment of an employee who has been dismissed by an employer;

third party, in relation to an employment claim, means any person, other than the employer on whom a copy of the claim has been served.

(2)The Commission may, if it considers it necessary to do so in the interests of equity, good conscience and the substantial merits of an employment claim, order a third party to refrain from preventing, hindering or interfering with, or doing anything that would have the effect of preventing, hindering or interfering with —

(a)the employment of the affected person;

(b)the employment or transfer of the employee to work at a particular place or site; or

(c)the reinstatement or re‑employment of the employee.

(3)Subsection (2) is not to be taken as limiting the persons in respect of whom the Commission can make other orders under this Act.

[Section 23B inserted by No. 20 of 2002 s. 138(1) 5.]

24.Jurisdiction to decide whether matter is industrial

(1)The Commission has jurisdiction to determine in any proceedings before it whether any matter to which those proceedings relate is an industrial matter and a finding by the Commission on that question is, subject to sections 49 and 90, final and conclusive with respect to those proceedings.

(2)A determination under subsection (1) is not a decision for the purposes of section 49 or 90 unless and until — 

(a)those proceedings have been concluded; or

(b)leave to appeal is granted by the Commission making that determination.

[Section 24 amended by No. 15 of 1993 s. 8; amended in Gazette 15 Aug 2003 p. 3686.]

25.Allocation of industrial matters

(1)For the purposes of section 16(1ab), in allocating the work of the Commission under this Division and Divisions 2A to 2G the Chief Commissioner may — 

(a)allocate matters to a commissioner;

(b)allocate matters directly to the Commission in Court Session; and

(c)notwithstanding that he has allocated a matter to a commissioner, revoke that allocation and allocate the matter to another commissioner or directly to the Commission in Court Session.

(2)Subsection (1) —

(a)has effect subject to any provision of this Division or Division 2A to 2G under which the Commission is to be constituted in a particular way; and

(b)does not affect the operation of Part IIC.

[Section 25 inserted by No. 94 of 1984 s. 16; amended by No. 20 of 2002 s. 121(2) and (3); No. 14 of 2005 s. 8.]

26.Commission to act according to equity and good conscience

(1)In the exercise of its jurisdiction under this Act the Commission — 

(a)shall act according to equity, good conscience, and the substantial merits of the case without regard to technicalities or legal forms;

(b)shall not be bound by any rules of evidence, but may inform itself on any matter in such a way as it thinks just;

(c)shall have regard for the interests of the persons immediately concerned whether directly affected or not and, where appropriate, for the interests of the community as a whole; and

(d)shall take into consideration to the extent that it is relevant — 

(i)the state of the national economy;

(ii)the state of the economy of Western Australia ;

(iii)the capacity of employers as a whole or of an individual employer to pay wages, salaries, allowances or other remuneration and to bear the cost of improved or additional conditions of employment;

(iv)the likely effects of its decision on the economies referred to in subparagraphs (i) and (ii) and, in particular, on the level of employment and on inflation;

(v)any changes in productivity that have occurred or are likely to occur;

(vi)the need to facilitate the efficient organisation and performance of work according to the needs of an industry and enterprises within it, balanced with fairness to the employees in the industry and enterprises;

(vii)the need to encourage employers, employees and organisations to reach agreements appropriate to the needs of enterprises and the employees in those enterprises.

(1a)Subsection (1)(d) does not apply when the Commission is exercising its jurisdiction under section 50A.

(2)In granting relief or redress under this Act the Commission is not restricted to the specific claim made or to the subject matter of the claim.

(3)Where the Commission, in deciding any matter before it proposes or intends to take into account any matter or information that was not raised before it on the hearing of the matter, the Commission shall, before deciding the matter, notify the parties concerned and afford them the opportunity of being heard in relation to that matter or information.

(4)Subsections (1) to (3) inclusive do not, in any particular case, prevent the use by the Commission, with the consent of the parties concerned, of final offer arbitration.

[Section 26 amended by No. 121 of 1982 s. 9; No. 94 of 1984 s. 17; No. 79 of 1995 s. 9; No. 20 of 2002 s. 129; No. 36 of 2006 s. 10.]

[26A.Deleted by No. 20 of 2002 s. 111(6).]

27.Powers of Commission

(1)Except as otherwise provided in this Act, the Commission may, in relation to any matter before it — 

(a)at any stage of the proceedings dismiss the matter or any part thereof or refrain from further hearing or determining the matter or part if it is satisfied — 

(i)that the matter or part thereof is trivial;

(ii)that further proceedings are not necessary or desirable in the public interest;

(iii)that the person who referred the matter to the Commission does not have a sufficient interest in the matter; or

(iv)that for any other reason the matter or part should be dismissed or the hearing thereof discontinued, as the case may be;

(b)take evidence on oath or affirmation;

(c)order any party to the matter to pay to any other party such costs and expenses including expenses of witnesses as are specified in the order, but so that no costs shall be allowed for the services of any legal practitioner, or agent;

(d)proceed to hear and determine the matter or any part thereof in the absence of any party thereto who has been duly summoned to appear or duly served with notice of the proceedings;

(e)sit at any time and place;

(f)adjourn to any time and place;

[(g)deleted]

(h)direct any person, whether a witness or intending witness or not, to leave the place wherein the proceedings are being conducted;

(ha)determine the periods that are reasonably necessary for the fair and adequate presentation of the respective cases of the parties to the proceedings and require that the cases be presented within the respective periods;

(hb)require evidence or argument to be presented in writing, and decide the matters on which it will hear oral evidence or argument;

(i)refer any matter to an expert and accept his report as evidence;

(j)direct parties to be struck out or persons to be joined;

(k)permit the intervention, on such terms as it thinks fit, of any person who, in the opinion of the Commission has a sufficient interest in the matter;

(l)allow the amendment of any proceedings on such terms as it thinks fit;

(m)correct, amend, or waive any error, defect, or irregularity whether in substance or in form;

(n)extend any prescribed time or any time fixed by an order of the Commission;

(o)make such orders as may be just with respect to any interlocutory proceedings to be taken before the hearing of any matter, the costs of those proceedings, the issues to be submitted to the Commission, the persons to be served with notice of proceedings, delivery of particulars of the claims of all parties, admissions, discovery, inspection, or production of documents, inspection or production of property, examination of witnesses, and the place and mode of hearing;

(p)enter upon any manufactory, building, workshop, factory, mine, mine‑working, ship or vessel, shed, place, or premises of any kind whatsoever, wherein or in respect of which any industry is or is reputed to be carried on, or any work is being or has been done or commenced, or any matter or thing is taking or has taken place, which is the subject of a matter before the Commission or is related thereto;

(q)inspect and view any work, material machinery, appliance, article, book, record, document, matter, or thing whatsoever being in any manufactory, building, workshop, factory, mine, mine‑working, ship or vessel, shed, place or premises of a kind referred to in paragraph (p);

(r)question any person who may be in or upon any such manufactory, building, workshop, factory, mine, mine‑working, ship or vessel, shed, place or premises in respect or in relation to any such matter or thing;

(s)consolidate or divide proceedings relating to the same industry and all or any matters before the Commission;

(t)with the consent of the Chief Commissioner refer the matter or any part thereof to the Commission in Court Session for hearing and determination by the Commission in Court Session;

(u)with the consent of the President refer to the Full Bench for hearing and determination by the Full Bench any question of law, including any question of interpretation of the rules of an organisation, arising in the matter; and

(v)generally give all such directions and do all such things as are necessary or expedient for the expeditious and just hearing and determination of the matter.

(1a)Except as otherwise provided in this Act, the Commission shall, in relation to any matter before it, conduct its proceedings in public unless the Commission, at any stage of the proceedings, is of the opinion that the objects of the Act will be better served by conducting the proceedings in private.

(2)The powers contained in subsection (1)(p), (q) and (r) may, if the Commission so directs in any case, be exercised by an officer of the Commission or by an expert to whom any matter has been referred by the Commission.

[Section 27 amended by No. 121 of 1982 s. 10; No. 94 of 1984 s. 18 and 66; No. 20 of 2002 s. 122.]

28.Exercise of powers prior to hearing and determination of matter

The powers conferred on the Commission by section 27 may be exercised in relation to a matter at any time after the matter has been lodged in the Commission notwithstanding that the procedures prescribed under this Act have not at that time been complied with to the extent necessary to enable the matter to be heard and determined by the Commission.

29.By whom matters may be referred

(1)An industrial matter may be referred to the Commission — 

(a)in any case, by — 

(i)an employer with a sufficient interest in the industrial matter;

(ii)an organisation in which persons to whom the industrial matter relates are eligible to be enrolled as members or an association that represents such an organisation; or

(iii)the Minister;

and

(b)in the case of a claim by an employee — 

(i)that he has been harshly, oppressively or unfairly dismissed from his employment; or

(ii)that he has not been allowed by his employer a benefit, not being a benefit under an award or order, to which he is entitled under his contract of employment,

by the employee.

(1a)A party to an employer‑employee agreement has the right to refer to the Commission constituted by a commissioner where the Commission so constituted is the relevant industrial authority under Part VID —

(a)any question, dispute or difficulty that the Commission as so constituted has jurisdiction to determine under section 97WI; or

(b)an allegation referred to in section 97WK(2).

(2)Subject to subsection (3), a referral under subsection (1)(b)(i) is to be made not later than 28 days after the day on which the employee’s employment is terminated.

(3)The Commission may accept a referral by an employee under subsection (1)(b)(i) that is out of time if the Commission considers that it would be unfair not to do so.

[Section 29 inserted by No. 94 of 1984 s. 19; amended by No. 15 of 1993 s. 10; No. 1 of 1995 s. 7 and 43; No. 3 of 1997 s. 24; No. 36 of 1999 s. 247; No. 20 of 2002 s. 7 and 139.]

29AA.Certain claims not to be determined

(1)Subject to subsection (2), the Commission must not determine a claim of harsh, oppressive or unfair dismissal from employment if the dismissed employee has lodged an application with the Australian Commission for relief in respect of the termination of that employment.

(2)Despite subsection (1) the Commission may determine the claim if the application to the Australian Commission is —

(a)withdrawn; or

(b)rejected or dismissed on the ground that it is not within the jurisdiction of the Australian Commission to determine the application.

(3)The Commission must not determine a claim of harsh, oppressive or unfair dismissal from employment if —

(a)an industrial instrument does not apply to the employment of the employee; and

(b)the employee’s contract of employment provides for a salary exceeding the prescribed amount.

(4)The Commission must not determine a claim that an employee has not been allowed by his or her employer a benefit to which the employee is entitled under a contract of employment if —

(a)an industrial instrument does not apply to the employment of the employee; and

(b)the employee’s contract of employment provides for a salary exceeding the prescribed amount.

(5)In this section —

industrial instrument means —

(a)an award;

(b)an order of the Commission under this Act that is not an order prescribed by regulations made by the Governor for the purposes of this section;

(c)an industrial agreement; or

(d)an employer‑employee agreement;

prescribed amount means —

(a)$90 000 per annum; or

(b)the salary specified, or worked out in a manner specified, in regulations made by the Governor for the purposes of this section.

[Section 29AA inserted by No. 20 of 2002 s. 140(1) 5; amended in Gazette 15 Aug 2003 p. 3686.]

29A. Service of claims and applications

(1)Where an industrial matter has been referred to the Commission pursuant to section 29, the claimant or applicant shall specify the nature of the relief sought.

(1a)In this section —

area and scope provisions means the parts of an award or industrial agreement that relate to the area of operation and scope of the award or industrial agreement.

(1b)Subject to subsection (2a) —

(a)area and scope provisions of a proposed award or industrial agreement; and

(b)proposed variations to the area and scope provisions of an existing award or industrial agreement,

shall be published in the required manner.

(2)Subject to any direction given under subsection (2a), if the reference of an industrial matter to the Commission seeks the issuance of an award or the registration of an industrial agreement, or the variation of the area and scope provisions of an existing award or agreement, the Commission shall not hear the claim or application until the area and scope provisions of the proposed award or industrial agreement have, or the proposed variation has, been published in the required manner and a copy of the claim or application has been served — 

(a)in the case of a proposed award or variation of an award, on — 

(i)the Council, the Chamber, the Mines and Metals Association and the Minister; and

(ii)such organisations, associations and employers as the Commission may direct being, in the case of employers, such employers as constitute, in the opinion of the Commission, a sufficient number of employers who are reasonably representative of the employers who would be bound by the proposed award or the award as proposed to be varied, as the case may be;

(b)in the case of the proposed registration or variation of an industrial agreement, on the Council, the Chamber, the Mines and Metals Association and the Minister.

(2a)The Chief Commissioner may, if the reference of an industrial matter to the Commission seeks — 

(a)the issuance of an award or the registration of an industrial agreement in substitution for an existing award or industrial agreement the area of operation and scope of which are the same as those of the award or industrial agreement sought to be issued or registered, as the case requires; or

(b)the registration of an industrial agreement — 

(i)the area of operation and scope of which are the same as those of; and

(ii)the parties to which are the same as the named parties to,

an existing award,

direct that the area and scope provisions of the proposed award or industrial agreement — 

(c)need not be published in the Industrial Gazette; or

(d)need not be published at all,

as he thinks fit.

(2b)Nothing in subsection (2a) affects or dispenses with any requirement of subsection (2) that a copy of a claim or application be served on any person, body or authority referred to in subsection (2)(a) or (b).

(2c)The area and scope provisions of an award may be amended under section 40A without the proposed variation having been published in the required manner.

(3)Unless otherwise directed by the Commission, where the reference of an industrial matter to the Commission seeks the variation of an award or industrial agreement, other than a variation of the kind mentioned in subsection (2), the Commission shall not hear the claim or application until the named parties to the award or the parties to the industrial agreement, as the case requires, have been served with a copy of the claim.

(4)Where the reference of an industrial matter to the Commission seeks the issuance or variation of an order or declaration, other than of a kind referred to in subsection (2) or (3) the Commission shall not hear the claim or application until the persons sought to be bound by the decision in the proceedings have been served with a copy of the claim or application.

[Section 29A inserted by No. 94 of 1984 s. 19; amended by No. 119 of 1987 s. 8; No. 15 of 1993 s. 31; No. 20 of 2002 s. 115.]

29B.Parties to proceedings

Subject to section 27(1)(j) the parties to proceedings before the Commission shall be — 

(a)the claimant or applicant by whom or which the proceedings were initiated; and

(b)the other persons, bodies, organisations or associations upon whom or which a copy of the claim or application is served.

[Section 29B inserted by No. 94 of 1984 s. 19.]

30.Intervention by Minister on behalf of State

(1)The Minister may, by giving the Registrar notice in writing of his intention to do so, and by leave of the Commission, intervene on behalf of the State in any proceedings before the Commission in which the State has an interest.

[(2)deleted]

[Section 30 inserted by No. 94 of 1984 s. 19; amended by No. 36 of 2006 s. 11.]

31.Representation of parties to proceedings

(1)Any party to proceedings before the Commission, and any other person or body permitted by or under this Act to intervene or be heard in proceedings before the Commission, may appear — 

(a)in person;

(b)by an agent; or

(c)where — 

(i)that party, person or body, or any of the other parties, persons or bodies permitted to intervene or be heard, is the Council, the Chamber, the Mines and Metals Association, the Minister or the Minister of the Commonwealth administering the Department of the Commonwealth that has the administration of the Commonwealth Act; or

(ii)the proceedings are in respect of a claim referred to the Commission under section 29(1)(b) or involve the hearing and determination of an application under section 44(7)(a)(iii); or

(iii)all parties to the proceedings expressly consent to legal practitioners appearing and being heard in the proceedings; or

(iv)the Commission, under subsection (4), allows legal practitioners to appear and be heard in the proceedings,

by a legal practitioner.

(2)An organisation or association shall be deemed to have appeared in person if it is represented by its secretary or by any officer of the organisation or association.

(3)A person or body appearing by a legal practitioner or agent is bound by the acts of that legal practitioner or agent.

(4)Where a question of law is raised or argued or is likely in the opinion of the Commission to be raised or argued in proceedings before the Commission, the Commission may allow legal practitioners to appear and be heard.

(5)The Commission may make regulations prescribing the manner in which authorisation of any agent is to be given, either generally or for a particular case.

[Section 31 amended by No. 121 of 1982 s. 12; No. 94 of 1984 s. 20 and 66; No. 15 of 1993 s. 31; No. 1 of 1995 s. 8; No. 36 of 1999 s. 247; No. 21 of 2008 s. 668(4).]

32.Reference of industrial matters for conciliation

(1)Where an industrial matter has been referred to the Commission the Commission shall, unless it is satisfied that the resolution of the matter would not be assisted by so doing, endeavour to resolve the matter by conciliation.

(2)In endeavouring to resolve an industrial matter by conciliation the Commission shall do all such things as appear to it to be right and proper to assist the parties to reach an agreement on terms for the resolution of the matter.

(3)Without limiting the generality of subsection (2) the Commission may, for the purposes of that subsection — 

(a)arrange conferences of the parties or their representatives presided over by the Commission;

(b)arrange for the parties or their representatives to confer among themselves at a conference at which the Commission is not present.

(4)The Commission shall — 

(a)if it gives or makes a direction, order or declaration orally under subsection (8), reduce the direction, order or declaration to writing as soon as is practicable thereafter;

(b)preface each direction, order or declaration given or made by it under subsection (8) — 

(i)if so given or made in writing, at the time of that giving or making; or

(ii)if so given or made orally, at the time of the reduction of that direction, order or declaration to writing,

with a preamble in writing setting out the circumstances which led to the giving or making of that direction, order or declaration; and

(c)make the text of each direction, order or declaration given or made by it under subsection (8) and of the preamble thereto available to the parties as soon as is practicable after that giving or making.

[(5)deleted]

(6)Where the Commission does not endeavour to resolve a matter by conciliation or, having endeavoured to do so — 

(a)is satisfied that further resort to conciliation would be unavailing; or

(b)is requested by all the parties to the proceedings to decide the matter by arbitration,

the Commission may decide the matter by arbitration.

(7)Where a matter is decided by arbitration the Commission shall endeavour to ensure that the matter is resolved on terms that could reasonably have been agreed between the parties in the first instance or by conciliation.

(8)For the purposes of this section the Commission may —

(a)give such directions and make such orders as will in the opinion of the Commission — 

(i)prevent the deterioration of industrial relations in respect of the matter until conciliation or arbitration has resolved the matter;

(ii)enable conciliation or arbitration to resolve the matter; or

(iii)encourage the parties to exchange or divulge attitudes or information which in the opinion of the Commission would assist in the resolution of the matter;

(b)give any direction or make any order or declaration which the Commission is otherwise authorised to give or make under this Act.

[Section 32 inserted by No. 94 of 1984 s. 21; amended by No. 119 of 1987 s. 9; No. 3 of 1997 s. 36; No. 20 of 2002 s. 187 and 194(3) and (4); No. 8 of 2009 s. 77(2)‑(4).]

32A.Conciliation and arbitration functions of Commission to be unlimited

(1)The functions of the Commission under this Act as to the resolution of matters by conciliation (conciliation functions) and the determination of matters by arbitration (arbitration functions) —

(a)are to and may be performed at any time and from time to time as and when their performance is necessary or expedient; and

(b)are not limited by any other provision of this Act.

(2)Without limiting subsection (1), nothing in this Act prevents the performance of conciliation functions merely because arbitration functions are being or have been performed.

[Section 32A inserted by No. 20 of 2002 s. 123.]

33.Evidence before Commission

(1)With respect to evidence in proceedings before the Commission — 

(a)the Registrar shall, on the application of any party, or by direction of the Commission, issue a summons in the prescribed form to any person to appear and give evidence before the Commission and the summons may require that person to produce before the Commission any books, papers, or other documents in his possession, or under his control, in any way relating to the proceedings;

(b)a person who attends the Commission in accordance with such summons shall be entitled to receive from the party at whose instance he was summoned an allowance for expenses as determined by the Commission;

(c)subject to subsection (2), a person duly served with such summons, shall not without good cause, proof of which is on him, fail to attend or to duly produce any book, paper, or document as required or refuse to be sworn as a witness or to answer any question which he is required by the Commission to answer;

(d)the Commission may, whenever it shall appear just or convenient so to do, make any order for the examination upon oath or otherwise before the Commission or any officer of the Commission, or any other person, and at any place of any witness or person, and may empower any party to give the deposition of such witness or person in evidence on such terms, if any, as the Commission may direct; and

(e)the Commission shall take evidence on oath or affirmation.

(2)Where a summons is issued to, and duly served on, a person to appear and give evidence before the Commission, the person may make application to the Commission for cause to be shown for him to so appear and, if on the hearing of the application such cause is not shown, he is not required to so appear.

(3)Evidence relating to any trade secret, or to the profits or financial position of any witness or party, shall not be disclosed except to the Commission, or published without the consent of the person entitled to the trade secret or non‑disclosure.

(4)The evidence referred to in subsection (3) shall, if the witness or party so requests, be taken in private.

(5)All books, papers, and other documents produced in evidence before the Commission may be inspected by the Commission and also by such of the parties as the Commission allows, but the information obtained therefrom shall not be made public without the permission of the Commission, and such parts of the documents as in the opinion of the Commission do not relate to the matter at issue may be sealed up, but such books, papers, and documents relating to any trade secret or to the profits or financial position of any witness or party shall not, without the consent of that witness or party, be inspected by any party.

(6)Subsection (1)(a), (b), and (c) do not apply to or in relation to a summons issued pursuant to section 44.

[Section 33 amended by No. 121 of 1982 s. 13; No. 94 of 1984 s. 22 and 65.]

34.Decision to be in form of award, order, or declaration

(1)The decision of the Commission shall be in the form of an award, order, or declaration and shall in every case be signed and delivered by the commissioner constituting the Commission that heard the matter to which the decision relates or, in the case of a decision of the Commission in Court Session, shall be signed and delivered by the Senior Commissioner among the commissioners constituting the Commission in Court Session.

(2)When the members of the Commission in Court Session are divided in opinion on a question, the question shall be decided according to the decision of the majority of the members.

(3)Proceedings before the President, the Full Bench, or the Commission shall not be impeached or held bad for want of form nor shall they be removable to any court by certiorari or otherwise —

(a)on any ground relating to jurisdiction; or

(b)on any other ground.

(4)Except as provided by this Act, no award, order, declaration, finding, or proceeding of the President, the Full Bench, or the Commission shall be liable to be challenged, appealed against, reviewed, quashed, or called in question by any court —

(a)on any ground relating to jurisdiction; or

(b)on any other ground.

[Section 34 amended by No. 94 of 1984 s. 23; No. 20 of 2002 s. 124.]

35.Decision to be first drawn up as minutes

(1)Subject to this section, the decision of the Commission, except a direction, order or declaration under section 32 or an order for dismissal shall, before it is delivered, be drawn up in the form of minutes which shall be handed down to the parties concerned and, unless in any particular case the Commission otherwise determines, its reasons for decision shall be published at the same time.

(2)At the discretion of the commissioner giving the decision the minutes and reasons for decision may be handed down by the Registrar.

(3)The parties concerned shall, at a time fixed by the Commission, be entitled to speak to matters contained in the minutes of the decision and the Commission may, after hearing the parties, vary the terms of those minutes before they are delivered as the decision of the Commission.

(4)The Commission, with the consent of the parties, may waive the requirements of this section in any case in which it is of the opinion that the procedures therein prescribed are inappropriate or unnecessary.

[Section 35 amended by No. 121 of 1982 s. 14; No. 94 of 1984 s. 24 and 66.]

36.Decision to be sealed and deposited

Every decision of the Commission shall — 

(a)be sealed with the seal of the Commission;

(b)be deposited in the office of the Registrar; and

(c)be open to inspection without charge during office hours by any person interested.

Division 2AAwards

[Heading inserted by No. 20 of 2002 s. 116.]

36A.Application for award coverage for non‑award employees

(1)In any proceedings in which the Commission is considering the making of an award (the new award) that extends to employees to whom no award currently extends (the employees), the onus is on any party opposing the making of the new award to show that it would not be in the public interest.

(2)The Commission may make an interim award that extends to the employees pending the making of the new award.

(3)An interim award may be made if the Commission considers —

(a)that it would provide a fair basis for the application of the no‑disadvantage test provided for by Part VID Division 6 Subdivision 1;

(b)that it would protect the existing wages and conditions of employment of the employees until the new award is made; or

(c)that it would be appropriate for any other reason.

[Section 36A inserted by No. 20 of 2002 s. 116.]

37.Effect, area and scope of awards

(1)An award has effect according to its terms, but unless and to the extent that those terms expressly provide otherwise it shall, subject to this section — 

(a)extend to and bind — 

(i)all employees employed in any calling mentioned therein in the industry or industries to which the award applies; and

(ii)all employers employing those employees;

and

(b)operate throughout the State, other than in the areas to which section 3(1) applies.

[(2), (3)deleted]

(4)An award, and any provision of an award, whether or not it has been made for a specified term, shall, subject to any variation made under this Act, remain in force until cancelled, suspended, or replaced under this Act unless, in the case of an award or a provision made for a specified term, it is expressly provided that the award or the provision, as the case may be, shall cease to operate upon the expiration of that term.

(5)Subsection (4) does not prevent the cancellation, suspension, or replacement of an award in part.

[Section 37 amended by No. 94 of 1984 s. 66.]

[37A.Deleted by No. 20 of 2002 s. 188.]

38.Named parties to awards

(1)The parties to proceedings before the Commission in which an award is made, other than the Council, the Chamber, the Mines and Metals Association and the Minister, shall be listed in the award as the named parties to the award.

(1a)If after the commencement of section 12 of the Industrial Relations Amendment Act 1993 1 — 

(a)any party to proceedings in which an award is made, other than the Council, the Chamber, the Mines and Metals Association and the Minister, is not listed in the award as a named party as required by subsection (1); and

(b)the Commission has not ordered that the party is not to be a party to the award,

the party is to be taken to be a named party to the award.

(1b)In subsections (1) and (1a) party does not include an intervener.

(2)At any time after an award has been made the Commission may, by order made on the application of — 

(a)any employer who, in the opinion of the Commission, has a sufficient interest in the matter;

(b)any organisation which is registered in respect of any calling mentioned in the award or in respect of any industry to which the award applies; or

(c)any association on which any such organisation is represented,

add as a named party to the award any employer, organisation or association.

(3)Where an employer who is added as a named party to an award under subsection (2) is, at the time of that addition, engaged in an industry to which the award did not previously apply and the scope of the award is varied by virtue of that addition, the variation shall for the purposes of section 37(1) be expressly limited to that industry.

(4)An employer is not to be added as a named party to an award under subsection (2) if that addition would have the effect of extending the award to employees to whom another award already extends.

[Section 38 inserted by No. 94 of 1984 s. 25; amended by No. 15 of 1993 s. 12 and 31; No. 20 of 2002 s. 117(1) 5.]

39.Date of operation of award

(1)An award comes into operation on the day on which it is delivered or on such later date as the Commission determines and declares when delivering the award.

(2)Subject to subsection (3), the provisions of an award have effect on such day or days as is or are, respectively, specified in the award.

(3)The Commission may, by its award, give retrospective effect to the whole or any part of the award — 

(a)if and to the extent that the parties to the award so agree; or

(b)if, in the opinion of the Commission, there are special circumstances which make it fair and right so to do,

but in a case to which paragraph (b) applies, not beyond the date upon which the application leading to the making of the award was lodged in the Commission.

(4)For the purpose of subsection (3), an award or a provision of it has retrospective effect if and only if it has effect from a date earlier than the day on which the award is delivered.

40.Power to vary or cancel award

(1)Subject to subsections (2), (3) and (4) and to sections 29A and 38, the Commission may by order at any time vary an award.

(2)An application to the Commission to vary an award may be made by any organisation or association named as a party to the award or employer bound by the award.

(3)Where an award or any provision thereof is limited as to its duration the Commission — 

(a)may, subject to such conditions as it considers fit, reserve to any party to the award liberty to apply to vary the award or that provision, as the case may be;

(b)shall not, within the specified term, vary the award or that provision, as the case may be, unless and to the extent that — 

(i)it is satisfied that, by reason of circumstances which have arisen since the time at which the specified term was fixed, it would be inequitable and unjust not to do so;

(ii)on an application made under paragraph (a), it is satisfied that it is fair and right so to do; or

(iii)the parties to the award agree that the award or provision should be varied;

and

(c)may within the specified term cancel the award if the parties to the award agree that it be cancelled.

(4)Section 39 applies, with such modifications as are necessary, to and in relation to an order made under this section.

[Section 40 amended by No. 94 of 1984 s. 66.]

40A.Incorporation of industrial agreement provisions into awards by consent

(1)If —

(a)an award extends to employees to whom an industrial agreement extends;

(b)a named party to the award who is also a party to the agreement applies to the Commission for the incorporation of some or all of the provisions of the agreement into the award; and

(c)each other party to the agreement consents to the incorporation of those provisions into the award,

the Commission shall by order vary the award by incorporating those provisions of the agreement into the award, but the variation shall be expressly limited to the employees and employers to whom the agreement extends.

(2)This section does not limit the operation of section 40 and that section applies to any application or order made under this section.

[Section 40A inserted by No. 20 of 2002 s. 118.]

40B.Power to vary awards to reflect statutory and other requirements, to promote efficiency and to facilitate implementation

(1)The Commission, of its own motion, may by order at any time vary an award for any one or more of the following purposes —

(a)to ensure that the award does not contain wages that are less than the minimum award wage as ordered by the Commission under section 50A;

(b)to ensure that the award does not contain conditions of employment that are less favourable than those provided by the MCE Act;

(c)to ensure that the award does not contain provisions that discriminate against an employee on any ground on which discrimination in work is unlawful under the Equal Opportunity Act 1984;

(d)to ensure that the award does not contain provisions that are obsolete or need updating;

(e)to ensure that the award is consistent with the facilitation of the efficient organisation and performance of work according to the needs of an industry and enterprises within it, balanced with fairness to the employees in the industry and enterprises.

(2)The Commission shall not make an order under this section until it has given notice to the named parties to the award and the Council, the Chamber, the Mines and Metals Association and the Minister and afforded them an opportunity to be heard in relation to the proposed variations.

(3)The Commission shall cause a copy of an order made under this section to be —

(a)given to the named parties to the award and to the Council, the Chamber, the Mines and Metals Association and the Minister; and

(b)published in the required manner.

(4)Section 39 applies to and in relation to an order made under this section —

(a)as if the reference in section 39(3) to the date on which an application was lodged in the Commission were a reference to the date on which notice was first given under subsection (2); and

(b)with such other modifications as are necessary.

(5)This section does not prevent or affect the making of an application under section 40 to vary an award for a purpose mentioned in subsection (1).

[Section 40B inserted by No. 20 of 2002 s. 118; amended by No. 36 of 2006 s. 12.]

Division 2BIndustrial agreements

[Heading inserted by No. 20 of 2002 s. 130.]

40C. Terms used

In this Division —

initiating party, in relation to a proposed industrial agreement, means the party that initiated the bargaining for the agreement under section 42(1);

negotiating party, in relation to a proposed industrial agreement, means —

(a)the initiating party; and

(b)a person who notifies the initiating party under section 42A(1) that that person will bargain for the industrial agreement;

prescribed period has the meaning given by section 42A(1) and includes any extension of that period ordered by the Commission.

[Section 40C inserted by No. 20 of 2002 s. 130.]

41.Industrial agreements

(1)An agreement with respect to any industrial matter or for the prevention or resolution under this Act of disputes, disagreements, or questions relating thereto may be made between an organisation or association of employees and any employer or organisation or association of employers.

(1a)An agreement may apply to a single enterprise or more than a single enterprise.

(1b)For the purposes of subsection (1a) an agreement applies to more than a single enterprise if it applies to —

(a)more than one business, project or undertaking; or

(b)the activities carried on by more than one public authority.

(2)Subject to subsection (3) and sections 41A and 49N, where the parties to an agreement referred to in subsection (1) apply to the Commission for registration of the agreement as an industrial agreement the Commission shall register the agreement as an industrial agreement.

(3)Before registering an industrial agreement the Commission may require the parties thereto to effect such variation as the Commission considers necessary or desirable for the purpose of giving clear expression to the true intention of the parties.

(4)An industrial agreement extends to and binds — 

(a)all employees who are employed — 

(i)in any calling mentioned in the industrial agreement in the industry or industries to which the industrial agreement applies; and

(ii)by an employer who is — 

(I)a party to the industrial agreement; or

(II)a member of an organisation of employers that is a party to the industrial agreement or that is a member of an association of employers that is a party to the industrial agreement;

and

(b)all employers referred to in paragraph (a)(ii),

and no other employee or employer, and its scope shall be expressly so limited in the industrial agreement.

(5)An industrial agreement shall operate — 

(a)in the area specified therein; and

(b)for the term specified therein.

(6)Notwithstanding the expiry of the term of an industrial agreement, it shall, subject to this Act, continue in force in respect of all parties thereto, except those who retire therefrom, until a new agreement or an award in substitution for the first‑mentioned agreement has been made.

(7)At any time after, or not more than 30 days before, the expiry of an industrial agreement any party thereto may file in the office of the Registrar a notice in the prescribed form signifying his intention to retire therefrom at the expiration of 30 days from the date of such filing, and such party shall on the expiration of that period cease to be a party to the agreement.

(8)When a new industrial agreement is made and registered, or an award or enterprise order is made, in substitution for an industrial agreement (the first agreement), the first agreement is taken to be cancelled, except to the extent that the new industrial agreement, award or order saves the provisions of the first agreement.

(9)To the extent that an industrial agreement is contrary to or inconsistent with an award, the industrial agreement prevails unless the agreement expressly provides otherwise.

[Section 41 inserted by No. 94 of 1984 s. 26; amended by No. 15 of 1993 s. 13; No. 20 of 2002 s. 131 and 144.]

41A.Registration of industrial agreement

(1)The Commission shall not under section 41 register an agreement as an industrial agreement unless the agreement —

(a)specifies a nominal expiry date that is no later than 3 years after the date on which the agreement will come into operation;

(b)includes any provision specified in relation to that agreement by an order referred to in section 42G; and

(c)includes an estimate of the number of employees who will be bound by the agreement upon registration.

(2)The Commission shall not under section 41 register an agreement as an industrial agreement to which an organisation or association of employees is a party, unless the employees who will be bound by the agreement upon registration are members of, or eligible to be members of, that organisation or association.

[Section 41A inserted by No. 20 of 2002 s. 132.]

42.Initiation of bargaining for industrial agreement

(1)Bargaining for an industrial agreement may be initiated by an organisation or association of employees, an employer or an organisation or association of employers giving to an intended party to the agreement a written notice that complies with subsection (3).

(2)A notice under subsection (1) is not to be given to an organisation or association of employers unless that organisation or association has given written consent to being given such notice.

(3)A notice complies with this subsection if it is accompanied by particulars of —

(a)the types of employment to be covered by the agreement;

(b)the area in which the agreement is to operate;

(c)the intended parties to the agreement; and

(d)any other matter prescribed by regulations made by the Governor under section 42M.

(4)If there is no applicable industrial agreement or enterprise order in force, bargaining may be initiated under subsection (1) at any time.

(5)If there is an applicable industrial agreement or an applicable enterprise order in force, bargaining must not be initiated under subsection (1) earlier than 90 days before the nominal expiry date of the agreement or order.

(6)Where bargaining is initiated under subsection (1) with more than one intended party to the agreement, all the negotiating parties are to bargain together unless the Commission, on the application of a negotiating party, directs that that negotiating party may negotiate separately with the initiating party.

(7)Nothing in this section prevents or limits a person from bargaining for an industrial agreement when bargaining has not been initiated under subsection (1).

(8)In subsection (5) —

nominal expiry date means the date specified in the agreement or enterprise order as the date on which the agreement or enterprise order expires.

[Section 42 inserted by No. 20 of 2002 s. 133.]

42A.Response to initiation of bargaining

(1)A person to whom a notice is given under section 42(1) may notify the initiating party within 21 days of receiving the notice (the prescribed period) as to whether that person will, or will not, bargain for an industrial agreement.

(2)The Commission may by order, on application by a person to whom a notice is given under section 42(1), extend by no more than 7 days the period within which that person may respond under subsection (1).

(3)The Commission may make an order under subsection (2) although an application for the order was not made until after the expiration of the prescribed period.

(4)An order under subsection (2) may be made subject to such conditions as the Commission thinks fit.

(5)An application under subsection (2) operates —

(a)as a bar to an application for an enterprise order by a negotiating party; and

(b)as a stay of any application for an enterprise order that has been made by a negotiating party,

until the application under subsection (2) is determined or withdrawn.

(6)Bargaining between negotiating parties for an industrial agreement is initiated when the negotiating party to whom the notice is given notifies the initiating party under subsection (1) that that negotiating party will bargain.

[Section 42A inserted by No. 20 of 2002 s. 133.]

42B.Good faith bargaining for industrial agreement

(1)When bargaining for an industrial agreement, a negotiating party shall bargain in good faith.

(2)Without limiting the meaning of the expression, bargaining in good faith by negotiating parties includes doing the following things —

(a)stating their position on matters at issue, and explaining that position;

(b)meeting at reasonable times, intervals and places for the purpose of conducting face‑to‑face bargaining;

(c)disclosing relevant and necessary information for bargaining;

(d)acting honestly and openly, which includes not capriciously adding or withdrawing items for bargaining;

(e)recognising bargaining agents;

(f)providing reasonable facilities to representatives of organisations and associations of employees necessary for them to carry out their functions;

(g)bargaining genuinely and dedicating sufficient resources to ensure this occurs;

(h)adhering to agreed outcomes and commitments made by the parties.

(3)The Commission may, having regard to the circumstances in which the industrial action occurs, determine that engaging in industrial action is a breach of the duty to bargain in good faith.

(4)For the purposes of this section, a person is a bargaining agent if —

(a)that person has been appointed in writing by a negotiating party to an agreement as a bargaining agent of that party in relation to the agreement;

(b)a copy of the appointment has been provided to the other negotiating party to the agreement; and

(c)the appointment has not been terminated.

(5)An appointment of a bargaining agent may be terminated at any time by notice of termination given by the negotiating party who appointed the agent in writing to the agent.

(6)A copy of a notice of termination must be given to each other negotiating party.

(7)For the purposes of section 12 of the Legal Profession Act 2008 a bargaining agent is authorised to provide advice and other services in relation to bargaining for an industrial agreement.

(8)Nothing in this section affects the requirement of section 112A that only a person who is registered under that section may appear as an agent under section 31, 81E or 91.

[Section 42B inserted by No. 20 of 2002 s. 133; amended by No. 65 of 2003 s. 41(3); No. 21 of 2008 s. 668(5).]

42C.Code of good faith

(1)The Commission may make a code of good faith to provide guidance about the application of the duty of good faith under section 42B in relation to bargaining for an industrial agreement —

(a)generally; or

(b)in relation to particular types of situations.

(2)The code shall not be inconsistent with this Division.

(3)Section 43(7), (8) and (9) of the Interpretation Act 1984 apply to the code as if it were subsidiary legislation.

(4)The Commission may amend or revoke the code or revoke it and substitute another code for it.

(5)The Commission shall cause the code, and any amendment or substituted code or any revocation of a code, to be published in the Industrial Gazette for public information.

(6)In this section —

Commission means the Commission in Court Session.

[Section 42C inserted by No. 20 of 2002 s. 133.]

42D.Duty of good faith does not require concluded industrial agreement

The duty of good faith in section 42B does not require a negotiating party —

(a)to agree on any matter for inclusion in, or exclusion from, an industrial agreement; or

(b)to enter into an industrial agreement.

[Section 42D inserted by No. 20 of 2002 s. 133.]

42E.Conciliation and arbitration to assist bargaining

(1)To assist parties to bargain for an industrial agreement, the Commission may exercise its powers as if it were endeavouring to resolve an industrial matter.

(2)Without limiting subsection (1) the Commission may make orders and give directions for the purpose of —

(a)ensuring that the negotiating parties bargain in good faith; and

(b)otherwise facilitating bargaining in good faith by negotiating parties.

(3)In particular, the Commission may order for the purposes of subsection (2) that a negotiating party do, or refrain from doing, any particular thing.

[Section 42E inserted by No. 20 of 2002 s. 133.]

42F.Restriction on Commission’s power in relation to industrial agreements

Except as provided in section 42G, the Commission must not give any direction or make any order or declaration requiring, or having the effect of requiring, a negotiating party to enter into an industrial agreement or to include any matter in, or exclude any matter from, an industrial agreement.

[Section 42F inserted by No. 20 of 2002 s. 133.]

42G.Parties may agree to Commission making orders as to terms of agreement

(1)This section applies where —

(a)negotiating parties have reached agreement on some, but not all, of the provisions of a proposed agreement;

(b)an application is made to the Commission for registration of the agreement as an industrial agreement, the agreement to include any further provisions specified by an order referred to in subsection (2); and

(c)an application is made to the Commission by the negotiating parties for an order as to specified matters on which agreement has not been reached.

(2)When registering the agreement, the Commission may order that the agreement include provisions specified by the Commission.

(3)An order referred to in subsection (2) may only be made in relation to matters specified by the negotiating parties in an application referred to in subsection (1)(c).

(4)In deciding the terms of an order the Commission may have regard to any matter it considers relevant.

(5)When an order referred to in subsection (2) is made, the provisions specified by the Commission are, by force of this section, included in the agreement registered by the Commission.

(6)Despite section 49, no appeal lies from an order referred to in subsection (2).

[Section 42G inserted by No. 20 of 2002 s. 133.]

42H.Commission may declare that bargaining has ended

(1)If, on the application of a negotiating party, the Commission constituted by a single commissioner determines that —

(a)the applicant has bargained in good faith;

(b)bargaining between the applicant and another negotiating party has failed; and

(c)there is no reasonable prospect of the negotiating parties reaching an agreement,

the Commission may declare that the bargaining has ended between those negotiating parties.

(2)Despite section 49, no appeal lies from a declaration under subsection (1).

[Section 42H inserted by No. 20 of 2002 s. 133.]

42I.Commission may make enterprise orders

(1)If —

(a)the Commission declares under section 42H that bargaining has ended between negotiating parties; or

(b)the person to whom a notice is given under section 42(1) does not respond to the notice within the prescribed period or responds with a refusal to bargain,

the Commission may, upon an application under subsection (2), make an order (an enterprise order) —

(c)providing for any matter that might otherwise be provided for in an industrial agreement to which the negotiating parties referred to in paragraph (a), or the initiating party and the person referred to in paragraph (b), were parties, irrespective of the provisions of any award, order or industrial agreement already in force; and

(d)that the Commission considers is fair and reasonable in all of the circumstances.

(2)An application for an enterprise order may be made —

(a)where subsection (1)(a) applies —

(i)if the negotiating party in respect of whom the declaration was made is not an organisation or association of employers, by the negotiating party; and

(ii)if the negotiating party in respect of whom the declaration was made is an organisation or association of employers, by an employer who is a member of the negotiating party;

and

(b)where subsection (1)(b) applies —

(i)if the initiating party is not an organisation or association of employers, by the initiating party;

(ii)if the initiating party is an organisation or association of employers, by an employer who is a member of the initiating party.

(3)An application for an enterprise order may be made —

(a)where subsection (1)(a) applies, within 21 days after the making of the declaration; and

(b)where subsection (1)(b) applies, within 21 days after the end of the prescribed period.

(4)Without limiting section 32A, the Commission may exercise its powers of conciliation in relation to a matter even if an application for an enterprise order has been made in relation to the same matter.

[Section 42I inserted by No. 20 of 2002 s. 133.]

42J.Effect of enterprise order

(1)An enterprise order extends to and binds —

(a)all employees who are employed —

(i)in any calling mentioned in the enterprise order in the industry or industries to which the enterprise order applies; and

(ii)by the employer specified in the order under subsection (5)(a);

and

(b)the employer specified in the order under subsection (5)(a),

and no other employee or employer, and its scope is to be expressly so limited in the enterprise order.

(2)An enterprise order operates in the area specified in the order.

(3)To the extent that an enterprise order is in conflict with an award or industrial agreement, the enterprise order prevails.

(4)An enterprise order is enforceable under section 83 as if the order were an award and any organisation or association who is specified in the order under subsection (5) were a named party to the award.

(5)The Commission is to specify in the enterprise order —

(a)the employer to whom the enterprise order extends and who is bound by the enterprise order; and

(b)any organisation or association of employees that is a relevant negotiating party or person referred to in section 42I(1)(b), as the case requires.

(6)The employer specified under subsection (5)(a) is to be —

(a)the applicant for the enterprise order; or

(b)if the applicant for the enterprise order was an organisation or association of employees —

(i)the negotiating party;

(ii)the person referred to in section 42I(1)(b);

(iii)the member of an organisation or association of employers that is a negotiating party; or

(iv)the member of an organisation or association of employers that is a person referred to in section 42I(1)(b),

specified in the application for the enterprise order.

[Section 42J inserted by No. 20 of 2002 s. 133.]

42K.Term of enterprise order

(1)Subject to this section, an enterprise order operates for the term specified in the order.

(2)An enterprise order must provide for the day on which it expires which cannot be more than 2 years from and including the day on which it comes into operation.

(3)An enterprise order is not to be varied by the Commission unless all of the persons specified in the order under section 42J(5) consent to the variation.

(4)The Commission is not to make an award or another enterprise order in substitution for an enterprise order unless the term of the enterprise order has expired.

(5)The Commission is not to register an industrial agreement in substitution for an enterprise order unless —

(a)the application to the Commission to register the industrial agreement is made by each of the persons specified in the order under section 42J(5); or

(b)the term of the enterprise order has expired.

(6)The Commission is not to cancel an enterprise order unless an industrial agreement has been registered, or an award or order has been made, in substitution for that enterprise order.

(7)Despite the expiry of an enterprise order, the enterprise order continues in force in respect of all the persons specified in the order under section 42J(5) until a new industrial agreement, enterprise order or an award, in substitution for the enterprise order, has been made or registered as the case requires.

[Section 42K inserted by No. 20 of 2002 s. 133.]

42L.When bargaining ends

Bargaining initiated under section 42(1) ends —

(a)in relation to negotiating parties who make an agreement, when that agreement is made; and

(b)in relation to negotiating parties specified in a declaration under section 42H, when that declaration is made.

[Section 42L inserted by No. 20 of 2002 s. 133.]

42M.Regulations

(1)The Governor may make regulations prescribing any matter that is necessary or convenient to be prescribed for giving effect to the purposes of this Division.

(2)Without limiting subsection (1) the Governor may make regulations for any of the purposes set out in section 113(1) to give effect to the purposes of this Division.

(3)If there is any conflict or inconsistency between a regulation made by the Governor and a regulation made under section 113(1), the regulation made by the Governor prevails to the extent of the conflict or inconsistency.

[Section 42M inserted by No. 20 of 2002 s. 133.]

43.Power to vary, renew or cancel industrial agreement

(1)An industrial agreement may be varied, renewed, or cancelled by a subsequent agreement made by and between all the parties thereto and in so far as the agreement relates to an employer, organisation or association of employers, on the one hand, and to an organisation or association of employees, on the other hand, it may be varied, renewed or cancelled by a subsequent agreement between that employer, organisation or association of employers and that organisation or association of employees.

(2)The Commission may vary an industrial agreement for the purpose of including, omitting or varying a provision, however expressed, that authorises an employer to stand‑down an employee.

(3)An application to the Commission to vary an industrial agreement for a purpose mentioned in subsection (2) may be made by any organisation, association or employer which or who is a party to the agreement.

[Section 43 inserted by No. 94 of 1984 s. 26; amended by No. 15 of 1993 s. 16; No. 1 of 1995 s. 50.]

Division 2CHolding of compulsory conferences

[Heading inserted by No. 20 of 2002 s. 119(1).]

44.Compulsory conference

(1)Subject to this section, the Commission constituted by a commissioner may summon any person to attend, at a time and place specified in the summons, at a conference before the Commission.

(2)A summons under this section —

(a)may be given in the prescribed manner; and

(b)when so given shall, in any proceedings under this Act relating thereto, be deemed to have been served on the person to whom it is directed unless that person, in those proceedings, satisfies the commissioner who caused the summons to be given or the Full Bench, as the case may be, that he did not receive the summons.

(3)Any person so summoned shall, except for good cause, proof of which is on him, attend the conference at the time and place specified in the summons and continue his attendance thereat as directed by the Commission.

[(4)deleted]

(5)A conference under this section shall be held in private unless the Commission, at any stage of the conference, is of the opinion that the objects of the Act will be better served by holding the conference in public.

(5a)In endeavouring to resolve any matter by conciliation the Commission shall do all such things as appear to it to be right and proper to assist the parties to a conference under this section to reach an agreement on terms for the resolution of the matter.

(6)The Commission may, at or in relation to a conference under this section, make such suggestions and give such directions as it considers appropriate and, without limiting the generality of the foregoing may — 

(a)direct the parties or any of them to confer with one another or with any other person and without a chairman or with the Registrar or a deputy registrar as chairman;

(b)direct that disclosure of any matter discussed at the conference be limited in such manner as the Commission may specify;

(ba)with respect to industrial matters, give such directions and make such orders as will in the opinion of the Commission — 

(i)prevent the deterioration of industrial relations in respect of the matter in question until conciliation or arbitration has resolved that matter;

(ii)enable conciliation or arbitration to resolve the matter in question; or

(iii)encourage the parties to exchange or divulge attitudes or information which in the opinion of the Commission would assist in the resolution of the matter in question;

(bb)with respect to industrial matters —

(i)give any direction or make any order or declaration which the Commission is otherwise authorised to give or make under this Act; and

(ii)without limiting paragraph (ba) or subparagraph (i), in the case of a claim of harsh, oppressive or unfair dismissal of an employee, make any interim order the Commission thinks appropriate in the circumstances pending resolution of the claim;

and

(c)exercise such of the powers of the Commission referred to in section 27(1) as the Commission considers appropriate.

(6a)An order made under subsection (6)(ba) or (bb) — 

(a)binds only the parties to the relevant conference under this section; and

(b)may vary the operation of an existing award or industrial agreement in respect of the parties referred to in paragraph (a).

(7)The Commission may exercise the power conferred on it by subsection (1) — 

(a)on the application of — 

(i)any organisation, association or employer;

(ii)the Minister on behalf of the State; or

(iii)an employee in respect of a dispute relating to his entitlement to long service leave;

or

(b)on the motion of the Commission itself whenever industrial action has occurred or, in the opinion of the Commission, is likely to occur.

(8)Where, at a conference held in accordance with this section, agreement is reached between the parties or any of them in relation to any industrial matter the Commission may — 

(a)make an order in the terms of that agreement binding only on those parties who consented thereto; or

[(b), (c)deleted]

(d)where the nature or subject matter of the agreement does not, in the opinion of the Commission, require that an order in terms of the agreement be made, make, sign, and file a memorandum of the terms of the agreement.

(9)Where at the conclusion of a conference held in accordance with this section any question, dispute, or disagreement in relation to an industrial matter has not been settled by agreement between all of the parties, the Commission may hear and determine that question, dispute, or disagreement and may make an order binding only the parties in relation to whom the matter has not been so settled.

(10)Subject to subsections (11) and (12), the Commission may, for the hearing and determination of a matter under subsection (9), be constituted by the commissioner who presided over the conference.

(11)Where the commissioner referred to in subsection (10) proposes to constitute the Commission for the purpose mentioned in that subsection, he shall, at the conclusion of the conference advise the parties thereto of his intention so to do, and, if any party thereupon objects to the Commission being so constituted for that purpose, that commissioner shall not enter upon the hearing of the matter concerned unless — 

(a)he has discussed with the Chief Commissioner the propriety of his so doing; and

(b)the Chief Commissioner, after interviewing the objecting party, has directed him so to do.

(12)Where the Chief Commissioner does not give the direction referred to in subsection (11)(b), he may — 

(a)allocate the matter in dispute for hearing and determination by the Commission constituted by a commissioner other than the commissioner who presided over the conference; and

(b)exercise in relation to the matter such powers of the Commission referred to in section 27(1) as he considers appropriate and are not inconsistent with the hearing and determination under paragraph (a).

(12a)Where, at the conclusion of a conference held in accordance with this section, any question, dispute, or disagreement in relation to an industrial matter has not been settled by agreement between all of the parties, and the parties in relation to whom the matter has not been so settled all consent in writing to the commissioner who presided over the conference conclusively determining that question, dispute or disagreement, that commissioner may hear and determine that question, dispute, or disagreement and make an order binding on the parties who so consented.

(12b)Nothing in subsection (12a) authorises the commissioner to use final offer arbitration without the express consent, in writing, of all of the parties concerned.

(12c)Notwithstanding section 49 no appeal shall lie from an order made under subsection (12a).

(12d)As soon as is practicable after giving or making a direction, order or declaration orally under this section, the Commission shall —

(a)reduce the direction, order or declaration to writing; and

(b)make the text of the direction, order or declaration available to the parties bound by the order or to which the direction or declaration applies.

(12e)Subsection (12d) does not apply to an order or declaration to which section 35 applies.

(13)Section 39 applies, with such modifications as are necessary, to an order made under this section.

[Section 44 amended by No. 121 of 1982 s. 18; No. 94 of 1984 s. 27, 65 and 66; No. 119 of 1987 s. 10; No. 15 of 1993 s. 17; No. 3 of 1997 s. 37; No. 20 of 2002 s. 141(1) 5, 151 and 194(5); amended in Gazette 15 Aug 2003 p. 3686.]

[45.Deleted by No. 94 of 1984 s. 66.]

Division 2DMiscellaneous provisions relating to awards, orders and agreements

[Heading inserted by No. 20 of 2002 s. 119(2).]

46.Interpretation of awards and orders

(1)At any time while an award is in force under this Act the Commission may, on the application of any employer, organisation, or association bound by the award — 

(a)declare the true interpretation of the award; and

(b)where that declaration so requires, by order vary any provision of the award for the purpose of remedying any defect therein or of giving fuller effect thereto.

(2)A declaration under this section may be made in the Commission’s reasons for decision but shall be made in the form of an order if, within 7 days of the handing down of the Commission’s reasons for decision, any organisation, association, or employer bound by the award so requests.

(3)Subject to this Act, a declaration made under this section is binding on all courts and all persons with respect to the matter the subject of the declaration.

(4)Section 35 does not apply to or in relation to this section unless an order is made under subsection (1)(b) or under subsection (2).

(5)In this section award includes an order, including a General Order, made by the Commission under any provision of this Act other than this section and an industrial agreement.

[Section 46 amended by No. 94 of 1984 s. 66.]

47.Cancellation of defunct awards, and deletion of employers from awards in certain cases

(1)Subject to subsections (3), (4) and (5), where, in the opinion of the Commission, there is no employee to whom an award or industrial agreement applies, the Commission may on its own motion, by order, cancel that award or industrial agreement.

(2)Subject to subsections (3), (4) and (5), where the Commission is of the opinion that a party to an award who is named as an employer is no longer carrying on business as an employer in the industry to which the award applies or is, for any other reason, not bound by the award, the Commission may on its own motion, by order, strike out that party as a named party to the award.

(2a)Subject to subsections (3), (4) and (5), where the Commission is of the opinion that a party to an industrial agreement is no longer carrying on business as an employer referred to in section 41(4)(a)(ii) in relation to the agreement or is, for any other reason, not bound by the agreement, the Commission may on its own motion, by order, strike out that party to the agreement.

(3)The Commission shall not make an order under subsection (1), (2) or (2a) unless before making the order — 

(a)it has directed the Registrar to make such enquiries as it considers necessary, and the Registrar has reported on the result of those enquiries to the Commission in writing; and

(b)after receiving the report of the Registrar, the Commission has — 

(i)caused the Registrar to give general notice by publication in the required manner of the intention of the Commission to make the order; and

(ii)directed the Registrar to serve copies of the notice on such persons as the Commission may specify.

(4)Any person may, within 30 days of the day on which the notice referred to in subsection (3) is first published, object to the Commission making the order referred to in the notice.

(5)If the Commission does not uphold an objection to the making of the order referred to in the notice the Commission may make the order and shall, as soon as practicable thereafter, direct the Registrar to serve a copy of the order — 

(a)where the order relates to an award, on each organisation of employees that is a named party to the award, on such other persons as are bound by the award as the Commission thinks fit, and on the Council, the Chamber and the Mines and Metals Association;

(b)where the order relates to an industrial agreement, on each party to the agreement.

[Section 47 amended by No. 94 of 1984 s. 28 and 66; No. 15 of 1993 s. 31; No. 1 of 1995 s. 53; No. 20 of 2002 s. 190(2) and (3).]

48.Boards of Reference to be established

(1)For each award in force under this Act there shall be a Board of Reference.

(2)Subject to subsection (5), each Board of Reference shall consist of a chairman appointed by the Chief Commissioner and an equal number of employers’ and employees’ members nominated and appointed in the manner prescribed, not being more than 2 in number on each side unless the Chief Commissioner, in any particular case or for the purposes of a specified award, approves the appointment of a greater number.

[(3), (4)deleted]

(5)The Chief Commissioner may appoint a person as chairman of a Board of Reference — 

(a)for the purpose of dealing with a particular matter; or

(b)for a specified period of time,

and, in the case of an appointment in accordance with paragraph (b) may terminate such appointment and make another appointment within that specified period, or may extend that specified period.

(6)A Board of Reference may allow, approve, fix, determine, or deal with — 

(a)any matter or thing that, under the award, may require to be allowed, approved, fixed, determined, or dealt with by a Board of Reference; and

(b)any matter or thing arising under or out of the provisions of an award, not involving the interpretation of any such provision, which the Commission may at any time, by order, authorise a Board of Reference to allow, approve, fix, determine, or deal with,

in the manner and subject to the conditions specified in the award or order, as the case may be.

(7)The powers conferred on a Board of Reference under the provisions of this section may be exercised by the Commission constituted by a commissioner.

(8)Where the nominated employers’ and employees’ members of a Board of Reference are equally divided in opinion on any matter before the Board of Reference the decision of the Board of Reference shall be in accordance with the opinion of the chairman.

(9)The chairman shall, after consultation with the nominated members, record in a memorandum signed by him — 

(a)all facts found by the Board of Reference; and

(b)the decision of the Board of Reference,

and shall forward that memorandum to the Registrar for filing in his office.

(10)Subject to subsection (11), the decision referred to in subsection (9) is upon being filed as prescribed therein, enforceable under this Act as if it were an award.

(11)Subject to subsection (12), any organisation, association, or employer affected by a decision of a Board of Reference may, within 21 days from the date of that decision appeal against that decision to the Commission in Court Session in the manner prescribed.

(12)An appeal under subsection (11) shall be heard and determined on the facts referred to in subsection (9)(a) and the Commission in Court Session may, if it upholds the appeal, rescind or vary the decision in such manner as it sees fit or may remit the matter to the Board of Reference for further hearing and determination.

[(13), (14)deleted]

(15)The Commission may, in any order made by it under this Act, provide that any matter or thing arising under or out of the provisions of the order, not involving the interpretation of any such provision, may be allowed, approved, fixed, determined, or dealt with by a Board of Reference and the provisions of this section apply to such an order in all respects as if it were an award.

[Section 48 amended by No. 94 of 1984 s. 29 and 66; No. 119 of 1987 s. 11.]

48A. Awards and agreements to make provision for resolution of disputes

(1)In exercising its jurisdiction under this Part the Commission shall not make an award or applicable order, or register an industrial agreement, unless the award, order or industrial agreement makes provision for procedures to be followed in connection with questions, disputes or difficulties arising under the award, order or industrial agreement.

(1a)The procedures referred to in subsection (1) shall provide for the persons involved in the question, dispute or difficulty to confer among themselves and make reasonable attempts to resolve questions, disputes or difficulties before taking those matters to the Commission.

(2)The Commission may order persons involved in a question, dispute or difficulty arising under an award, order or industrial agreement that is before the Commission to comply with the dispute settling procedures provided for in that award, order or industrial agreement.

(3)In subsection (1) applicable order means an order with respect to which, in the opinion of the Commission, a question, dispute or difficulty capable of resolution by dispute settling procedures may arise.

[Section 48A inserted as section 49A by No. 79 of 1995 s. 11; amended by No. 3 of 1997 s. 31 4; renumbered as section 48A by No. 20 of 2002 s. 120.]

48B.Superannuation

(1)In this section — 

complying superannuation fund or scheme means a superannuation fund or scheme — 

(a)that is a complying superannuation fund or scheme within the meaning of the Superannuation Guarantee (Administration) Act 1992 of the Commonwealth; and

(b)to which, under the governing rules of the fund or scheme, contributions may be made by or in respect of the employee permitted to nominate a fund or scheme.

(2)In exercising its jurisdiction under this Part the Commission shall not make an award or order, or register an industrial agreement, which requires contribution to a superannuation fund or scheme by an employee or by an employer in respect of an employee unless the award, order or industrial agreement — 

(a)permits the employee to nominate a complying superannuation fund or scheme;

(b)requires the employer to notify the employee of the entitlement to nominate a complying superannuation fund or scheme;

(c)requires the employer — 

(i)if the award, order or industrial agreement specifies one or more complying superannuation funds or schemes to which contributions may be made, to make contributions to that fund or scheme, or one of those funds or schemes nominated by the employer, until the employee nominates a complying superannuation fund or scheme; or

(ii)if the award, order or industrial agreement does not specify a complying superannuation fund or scheme to which contributions may be made, to make contributions to a complying fund or scheme nominated by the employer until the employee nominates such a fund or scheme;

(d)requires the employee and employer to be bound by the nomination of the employee unless the employee and employer agree to change the complying superannuation fund or scheme to which contributions are to be made; and

(e)provides that an employer shall not unreasonably refuse to agree to a change of complying superannuation fund or scheme requested by an employee.

(3)The Governor may make regulations — 

(a)prescribing procedures to be followed by an employer in notifying an employee of entitlement to nominate a complying superannuation fund or scheme; and

(b)prescribing procedures to be followed by an employee in nominating a complying superannuation fund or scheme.

(4)A person shall not by threats or intimidation persuade or attempt to persuade — 

(a)an employee or prospective employee to nominate a particular superannuation fund or scheme; or

(b)an employer to make contributions to a particular superannuation fund or scheme.

Penalty:

(a)in the case of an individual, $1 000;

(b)in any other case, $5 000.

(5)In subsection (4) — 

threats includes any conduct by an employer that clearly indicates to an employee or prospective employee that employment or promotion is conditional upon the employee nominating, or changing to, a complying superannuation fund or scheme suggested by the employer.

[Section 48B inserted as section 49C by No. 79 of 1995 s. 13(1); renumbered as section 48B by No. 20 of 2002 s. 120.]

Division 2EAppeals to the Full Bench

[Heading inserted by No. 20 of 2002 s. 119(3).]

49.Appeals to Full Bench from decision of Commission under this Act

(1)In this section the Commission means the Commission constituted by a commissioner, but does not include the Commission exercising jurisdiction under section 80ZE.

(2)Subject to this section, an appeal lies to the Full Bench in the manner prescribed from any decision of the Commission.

(2a)An appeal does not lie under this section from a finding unless, in the opinion of the Full Bench, the matter is of such importance that, in the public interest, an appeal should lie.

(2b)An appeal does not lie under this section from a determination —

(a)of a relevant industrial authority —

(i)under section 97VP; or

(ii)in an arbitration under any EEA dispute provision of the kind referred to in section 97UP;

or

(b)of the Commission under section 97XC or 97XQ.

(3)An appeal under this section shall be instituted within 21 days of the date of the decision against which the appeal is brought and may be instituted by — 

(a)any party to the proceedings wherein the decision was made; or

(b)any person who was an intervener in those proceedings.

(4)An appeal under this section — 

(a)shall be heard and determined on the evidence and matters raised in the proceedings before the Commission; and

(b)shall, if brought by a person referred to in subsection (3)(b), be dismissed unless, on the hearing of the appeal, that person obtains leave of the Full Bench,

and, for the purpose of paragraph (a), proceedings includes any proceedings arising under section 35(3).

(5)In the exercise of its jurisdiction under this section the Full Bench may, by order — 

(a)dismiss the appeal;

(b)uphold the appeal and quash the decision or, subject to subsection (6), vary it in such manner as the Full Bench considers appropriate; or

(c)suspend the operation of the decision and remit the case to the Commission for further hearing and determination.

(6)Where the Full Bench varies a decision under subsection (5)(b) the decision as so varied shall be in terms which could have been awarded by the Commission that gave the decision.

(6a)The Full Bench is not to remit a case to the Commission under subsection (5)(c) unless it considers that it is unable to make its own decision on the merits of the case because of lack of evidence or for other good reason.

(7)The decision of the Full Bench shall be signed and delivered by the President.

(8)When the members of the Full Bench are divided on a question, the question shall be decided according to the decision of a majority of the members unless the members are evenly divided on the question in which case the question shall be decided according to the decision of the President.

(9)When any question of law arises in any proceedings before the Full Bench, the President may state a case for the decision of the Court thereon and shall do so if a majority of the members of the Full Bench so request.

(10)Subsections (7), (8), and (9) apply to and in relation to all proceedings before the Full Bench whether under this section or otherwise.

(11)At any time after an appeal to the Full Bench has been instituted under this section a person who has a sufficient interest may apply to the Commission for an order that the operation of the decision appealed against be stayed, wholly or in part, pending the hearing and determination of the appeal.

(12)An application under subsection (11) shall be heard and determined by the President.

[Section 49 amended by No. 121 of 1982 s. 20; No. 94 of 1984 s. 30 and 66; No. 119 of 1987 s. 12; No. 1 of 1995 s. 9; No. 36 of 1999 s. 247; No. 20 of 2002 s. 8 and 125.]

[49A.Renumbered as section 48A by No. 20 of 2002 s. 120.]

[49AB, 49B.Deleted by No. 20 of 2002 s. 145.]

[49C.Renumbered as section 48B by No. 20 of 2002 s. 120.]

Division 2FKeeping of and access to employment records

[Heading inserted by No. 20 of 2002 s. 146(1).]

49D.Keeping of employment records

(1)Subsection (2) applies to an employee during any period when an industrial instrument applies to his or her employment.

(2)An employer must ensure that details are recorded of —

(a)the employee’s name and, if the employee is under 21 years of age, his or her date of birth;

(b)any industrial instrument that applies;

(c)the date on which the employee commenced employment with the employer;

(d)for each day —

(i)the time at which the employee started and finished work;

(ii)the period or periods for which the employee was paid; and

(iii)details of work breaks including meal breaks;

(e)for each pay period —

(i)the employee’s designation;

(ii)the gross and net amounts paid to the employee under the industrial instrument; and

(iii)all deductions and the reasons for them;

(f)all leave taken by the employee, whether paid, partly paid or unpaid;

(g)the information necessary for the calculation of the entitlement to, and payment for long service leave under the Long Service Leave Act 1958, the Construction Industry Portable Paid Long Service Leave Act 1985 or the industrial instrument;

(h)any other information in respect of the employee required under the industrial instrument to be recorded; and

(i)any information, not otherwise covered by this subsection, that is necessary to show that the remuneration and benefits received by the employee comply with the industrial instrument.

(3)The employer must ensure that —

(a)the employment records are kept in accordance with regulations made by the Governor;

(b)each entry in relation to long service leave is retained —

(i)during the employment of the employee; and

(ii)for not less than 7 years after the employment terminates;

and

(c)each other entry is retained for not less than 7 years after it is made.

(4)In this section —

industrial instrument means —

(a)an award;

(b)an order of the Commission under this Act;

(c)an industrial agreement; or

(d)an employer‑employee agreement.

[Section 49D inserted by No. 20 of 2002 s. 146(1).]

49E.Access to employment records

(1)An employer, on written request by a relevant person, must —

(a)produce to the person the employment records relating to an employee; and

(b)let the person inspect the employment records.

(2)The duty placed on an employer by subsection (1) —

(a)continues so long as the records are required to be kept under section 49D(3);

(b)is not affected by the fact that the employee is no longer employed by the employer or that the industrial instrument no longer applies to him or her;

(c)includes the further duties —

(i)to let the relevant person enter premises of the employer for the purpose of inspecting the records; and

(ii)to let the relevant person take copies of or extracts from the records;

and

(d)must be complied with not later than —

(i)at the end of the next pay period after the request is received; or

(ii)the seventh day after the day on which the request was made to the employer.

(3)Nothing in this section limits or otherwise affects the powers of an industrial inspector in relation to the inspection of employment records.

(4)In this section —

relevant person means —

(a)the employee concerned;

(b)if the employee is a represented person, his or her representative;

(c)a person authorised in writing by the employee; and

(d)an officer referred to in section 93 authorised in writing by the Registrar.

[Section 49E inserted by No. 20 of 2002 s. 146(1).]

49F.Enforcement of this Division

A contravention of section 49D(2), 49D(3) or 49E(1) is not an offence but those subsections are civil penalty provisions for the purposes of section 83E.

[Section 49F inserted by No. 20 of 2002 s. 146(1).]

Division 2GRight of entry and inspection by authorised representatives

[Heading inserted by No. 20 of 2002 s. 146(1).]

49G. Terms used

In this Division —

authorised representative means a person who holds an authority in force under this Division;

relevant employee, when used in connection with the exercise of a power by an authorised representative of an organisation, means an employee who is a member of the organisation or who is eligible to become a member of the organisation.

[Section 49G inserted by No. 20 of 2002 s. 146(1).]

49H.Right of entry for discussions with employees

(1)An authorised representative of an organisation may enter, during working hours, any premises where relevant employees work, for the purpose of holding discussions at the premises with any of the relevant employees who wish to participate in those discussions.

(2)If an award, order or industrial agreement that extends to the relevant employees makes provision as to entry onto premises by an authorised representative and —

(a)does not require notice to be given by the representative; or

(b)requires a specified period of notice to be given by the representative,

the authorised representative is not required to give notice under this section.

(3)If subsection (2) does not apply, the authorised representative is not entitled to exercise a power conferred by this section unless the authorised representative has given the employer of the employees concerned at least 24 hours’ written notice.

[Section 49H inserted by No. 20 of 2002 s. 146(1).]

49I.Right of entry to investigate breaches

(1)An authorised representative of an organisation may enter, during working hours, any premises where relevant employees work, for the purpose of investigating any suspected breach of this Act, the Long Service Leave Act 1958, the MCE Act, the Occupational Safety and Health Act 1984, the Mines Safety and Inspection Act 1994 or an award, order, industrial agreement or employer‑employee agreement that applies to any such employee.

(2)For the purpose of investigating any such suspected breach, the authorised representative may —

(a)subject to subsections (3) and (6), require the employer to produce for the representative’s inspection, during working hours at the employer’s premises or at any mutually convenient time and place, any employment records of employees or other documents kept by the employer that are related to the suspected breach;

(b)make copies of the entries in the employment records or documents related to the suspected breach; and

(c)during working hours, inspect or view any work, material, machinery, or appliance, that is relevant to the suspected breach.

(3)The authorised representative is not entitled to require an employer to produce an employment record of an employee if the employee —

(a)is a party to an employer‑employee agreement; and

(b)has made a written request to the employer that the record not be available for inspection by an authorised representative.

(4)A written request under subsection (3)(b) —

(a)may be withdrawn by written notice given by the employee to the employer; and

(b)has effect until it is so withdrawn.

(5)An authorised representative is not entitled to exercise a power conferred by this section for the purpose of investigating a suspected breach of an employer‑employee agreement to which a relevant employee is a party unless the authorised representative is authorised in writing by that relevant employee to carry out the investigation.

(6)An authorised representative is not entitled to require the production of employment records or other documents unless, before exercising the power, the authorised representative has given the employer concerned —

(a)if the records or other documents are kept on the employer’s premises, at least 24 hours’ written notice; or

(b)if the records or other documents are kept elsewhere, at least 48 hours’ written notice.

(7)The Commission may, on the ex parte application of an authorised representative, waive the requirement to give the employer concerned notice of an intended exercise of a power under subsection (6) if the Commission is satisfied that to give such notice would defeat the purpose for which the power is intended to be exercised.

(8)If the requirement for notice is waived under subsection (7) —

(a)the Commission must give the authorised representative a certificate authorising the exercise of the power without notice; and

(b)the authorised representative must, after entering the premises and before requiring the production of the records or documents, give the person who is apparently in charge of the premises the certificate or a copy of the certificate.

[Section 49I inserted by No. 20 of 2002 s. 146(1); amended in Gazette 15 Aug 2003 p. 3686.]

49J.Provisions as to authorities issued to representatives

(1)The Registrar, on application by the secretary of an organisation of employees to issue an authority for the purposes of this Division to a person nominated by the secretary in the application, must issue the authority.

(2)The Registrar must not issue an authority for the purposes of this Division to a person who has held an authority under this Division that has been revoked under subsection (5) unless the Commission in Court Session on application by any person has ordered that the authority be so issued.

(3)A person to whom an authority is issued is an authorised representative of the organisation on whose behalf the application for the authority was made.

(4)The authority remains in force unless it is revoked or suspended under this section.

(5)The Commission constituted by a commissioner may, by order, on application by any person, revoke, or suspend for a period determined by the Commission, the authority if satisfied that the person to whom it was issued has —

(a)acted in an improper manner in the exercise of any power conferred on the person by this Division; or

(b)intentionally and unduly hindered an employer or employees during their working time.

(6)The Registrar may, on application by the secretary of the organisation of employees on whose behalf the application for the authority was made, revoke the authority.

(6a)The Registrar must not revoke an authority under subsection (6) if —

(a)proceedings pursuant to an application made under subsection (5) in relation to the authority are pending or in progress; or

(b)appeal proceedings in respect of a decision made under subsection (5) in relation to the authority are pending or in progress, or the time within which such proceedings may be instituted has not elapsed.

(7)An application for the revocation of an authority under subsection (5) is to set out the grounds on which the application is made.

(8)Despite section 49 —

(a)no appeal lies from a decision of the Commission under subsection (2); and

(b)section 49(2a) does not apply to an appeal from a decision under subsection (5).

(9)A person to whom an authority has been issued under this section must, within 14 days after the revocation of the authority, return the authority to the Registrar.

[Section 49J inserted by No. 20 of 2002 s. 146(1); amended by No. 36 of 2006 s. 8.]

49K.No entry to premises used for habitation

An authorised representative does not have authority under this Division to enter any part of the premises of an employer that is principally used for habitation by the employer and his or her household.

[Section 49K inserted by No. 20 of 2002 s. 146(1).]

49L.Authority must be shown on request

(1)If —

(a)a person proposes to enter, or is on, premises in accordance with section 49H or 49I; and

(b)the occupier requests the person to show his or her authority,

the person is not entitled under that section to enter or remain on the premises unless he or she shows the occupier the authority in force under this Division.

(2)In this section —

occupier includes a person in charge of the premises.

[Section 49L inserted by No. 20 of 2002 s. 146(1).]

49M.Conduct giving rise to civil penalties

(1)The occupier of premises must not refuse, or intentionally and unduly delay, entry to the premises by a person entitled to enter the premises under section 49H or 49I.

(2)A person must not intentionally and unduly hinder or obstruct an authorised representative in the exercise of the powers conferred by this Division.

(3)A person must not purport to exercise the powers of an authorised representative under this Division if the person is not the holder of a current authority issued by the Registrar under this Division.

[Section 49M inserted by No. 20 of 2002 s. 146(1).]

49N.Power of Commission restricted

(1)The Commission does not have jurisdiction to make an award or order or register an agreement conferring, or making provision for the exercise of, powers of entry and inspection that are additional to, or inconsistent with, the powers of entry and inspection under Division 2F and this Division and the provisions as to the exercise of those powers.

(2)Nothing in subsection (1) prevents or limits the Commission from specifying in an award or order, or registering an agreement that specifies, the period of notice required to be given by an authorised representative to an employer before entering premises where relevant employees work.

(3)To the extent that the provisions of an award, order or industrial agreement, whether made or registered before or after the coming into operation of section 146 of the Labour Relations Reform Act 2002, confer or make provision for the exercise of powers of entry and inspection that are additional to, or inconsistent with, the powers of entry and inspection under Division 2F and this Division or the provisions as to the exercise of those powers, those provisions have no effect.

[Section 49N inserted by No. 20 of 2002 s. 146(1) 5.]

49O.Enforcement of this Division

A contravention of section 49J(9) or 49M(1), (2) or (3) is not an offence but those subsections are civil penalty provisions for the purposes of section 83E.

[Section 49O inserted by No. 20 of 2002 s. 146(1).]

Division 3 — General Orders

50.Power of Commission to make General Orders

(1)In this Division Commission means Commission in Court Session.

(2)Subject to this Act, the Commission may, of its own motion or on the application of the Council, the Chamber, the Mines and Metals Association or the Minister — 

(a)make General Orders relating to industrial matters in accordance with and subject to this Division; and

(b)add to, vary, or rescind any General Order so made.

(3)A General Order may be made to apply generally to employees throughout the State whether or not they are employed under and subject to awards or industrial agreements or may be limited to employees — 

(a)who are employed under and subject to awards or industrial agreements; or

(b)who are not so employed,

but shall not apply to any employee whose conditions of employment may not be determined by the Commission.

(4)A General Order applying to or with respect to employees of the kind referred to in subsection (3)(a) may add to or vary all awards and industrial agreements or may be limited in its effect to such awards and industrial agreements or awards or industrial agreements as may be specified in the General Order.

[(5), (6)deleted]

(7)A General Order shall not be made in respect of preference of employment at the time of, or during, employment by reason of being or not being a member of an organisation.

[Section 50 amended by No. 94 of 1984 s. 32 and 66; No. 15 of 1993 s. 18 and 31; No. 20 of 2002 s. 179 and 190(4); No. 36 of 2006 s. 13.]

50A.Commission to determine rates of pay for purposes of MCE Act and awards

(1)The Commission shall before 1 July in each year, of its own motion make a General Order (the State Wage order) —

(a)setting —

(i)the minimum weekly rate of pay applicable under section 12 of the MCE Act to employees who have reached 21 years of age and who are not apprentices;

(ii)the minimum weekly rate or rates of pay applicable under section 14 of the MCE Act to apprentices;

(b)adjusting rates of wages paid under awards;

(c)having regard to the statement of principles issued under paragraph (d) —

(i)varying each award affected by the exercise of jurisdiction under paragraph (b) to ensure that the award is consistent with the order; and

(ii)if the Commission considers it appropriate to do so, making other consequential changes to specified awards;

and

(d)setting out a statement of principles to be applied and followed in relation to the exercise of jurisdiction under this Act to set the wages, salaries, allowances or other remuneration of employees or the prices to be paid in respect of their employment.

(2)The Commission may, in relation to awards generally or specified awards, do any or all of the following for the purposes of subsection (1)(b) —

(a)adjust all rates of wages;

(b)adjust individual rates of wages;

(c)adjust a series of rates of wages;

(d)adjust specialised rates of wages.

(3)In making an order under this section, the Commission shall take into consideration —

(a)the need to —

(i)ensure that Western Australians have a system of fair wages and conditions of employment;

(ii)meet the needs of the low paid;

(iii)provide fair wage standards in the context of living standards generally prevailing in the community;

(iv)contribute to improved living standards for employees;

(v)protect employees who may be unable to reach an industrial agreement;

(vi)encourage ongoing skills development; and

(vii)provide equal remuneration for men and women for work of equal or comparable value;

(b)the state of the economy of Western Australia and the likely effect of its decision on that economy and, in particular, on the level of employment, inflation and productivity in Western Australia ;

(c)to the extent that it is relevant, the state of the national economy;

(d)to the extent that it is relevant, the capacity of employers as a whole to bear the costs of increased wages, salaries, allowances and other remuneration;

(e)for the purposes of subsection (1)(b) and (c), the need to ensure that the Western Australian award framework represents a system of fair wages and conditions of employment;

(f)relevant decisions of other industrial courts and tribunals; and

(g)any other matters the Commission considers relevant.

(4)Without limiting the generality of this section and section 26(1), in the exercise of its jurisdiction under subsection (1)(b) and (c) the Commission shall ensure, to the extent possible, that there is consistency and equity in relation to the variation of awards.

(5)A State Wage order takes effect on 1 July in the year it is made and is applicable in respect of an employee or apprentice on and from the commencement of the first pay period of the employee or apprentice on or after that date.

(6)A State Wage order in effect under this section when a subsequent order is made under subsection (1) ceases to apply in respect of an employee or apprentice on the day on which the subsequent order commences to apply in respect of the employee or apprentice.

(7)A State Wage order shall not be added to or varied.

(8)Nothing in subsection (7) affects the Commission’s powers under section 27(1)(m).

[Section 50A inserted by No. 36 of 2006 s. 14; amended by No. 44 of 2008 s. 53(7)‑(9).]

50B.Matters relevant to setting rates for apprentices and trainees

(1)For the purposes of section 50A(1)(a)(ii) and (iii), the Commission may —

(a)set a minimum weekly rate of pay in relation to apprentices generally;

(b)subject to subsections (2) and (3), set a minimum weekly rate of pay in relation to apprentices who belong to particular classes of apprentice; or

(c)do a combination of the things authorised by paragraphs (a) and (b).

(2)The Commission may set a minimum weekly rate of pay in relation to apprentices who have reached 21 years of age that is different from a rate or rates for apprentices who are under 21 years of age.

(3)The Commission shall ensure that at any particular time there is applicable in relation to each class of apprentice —

(a)a minimum weekly rate of pay set in respect of that class; or

(b)the minimum weekly rate of pay in relation to apprentices generally.

(4)In setting a minimum weekly rate of pay in relation to apprentices generally or in relation to apprentices who belong to a particular class of apprentice, the Commission may use such means as in its opinion are appropriate including, but not limited to —

(a)setting the rate in figures;

(b)setting the rate as a proportion of —

(i)the minimum weekly rate of pay referred to in section 50A(1)(a)(i); or

(ii)any award or other wages instrument;

(c)adopting some or all of the provisions of any award or other wages instrument; or

(d)setting out any other method for the calculation or assessment of the rate.

[Section 50B inserted by No. 36 of 2006 s. 14; amended by No. 44 of 2008 s. 53(10)‑(13).]

[51.Deleted by No. 36 of 2006 s. 15.]

51A. General Orders as to public sector discipline

(1)Subject to this Act, the Commission may in respect of a public authority and its employees, on application by the Minister, the Council or an organisation with sufficient interest in the matter — 

(a)make a General Order or General Orders with respect to one or more of the following — 

(i)suspension from duty in employment;

(ii)discipline in employment;

(iii)dismissal from employment; and

(iv)termination of employment,

and with respect to any matter related thereto; and

(b)add to, vary or rescind any General Order so made.

(2)A General Order referred to in subsection (1) may be made so as to apply to — 

(a)public authorities and their employees generally;

(b)a specified public authority or specified public authorities and its or their employees;

(c)public authorities and their employees bound by a specified award or specified awards;

(d)a specified class of employees employed in a public authority or public authorities.

(3)In subsection (2) specified means specified in the General Order.

(4)A General Order in relation to a matter referred to in subsection (1)(a) shall not be made so as to apply to — 

(a)any employee whose conditions of employment may not be determined by the Commission;

(b)any employee in relation to whom — 

(i)there is provision, however expressed, by or under any other Act for or in relation to that matter; and

(ii)there is provision by or under that other Act for an appeal in that matter;

or

(c)any member of the academic staff of a post‑secondary education institution.

(5)A General Order referred to in subsection (1) shall not be made under subsection (2)(c) so as to apply to any employee covered by an award where an organisation that is a party to that award does not consent to the General Order being so made.

[Section 51A inserted by No. 94 of 1984 s. 33.]

51B.Commission’s power to make General Orders as to matters for which minimum conditions of employment are prescribed by MCE Act

(1)Except as provided in section 50A, the Commission does not have power under this Division to make a General Order setting a minimum condition in relation to a matter if the matter is the subject of a minimum condition of employment as defined in the MCE Act.

(2)Nothing in subsection (1) prevents the Commission from making a General Order under this Division in relation to a matter that is the subject of a minimum condition of employment as defined in the MCE Act if the General Order is more favourable to employees than the minimum condition of employment.

[Section 51B inserted by No. 20 of 2002 s. 180; amended by No. 36 of 2006 s. 16.]

51BA.Notification of hearing

(1)The Commission shall ensure that notice of each initial hearing to be conducted for the purposes of making a General Order under this Division is —

(a)given by written notice to the Council, the Chamber, the Mines and Metals Association, the Minister, and any other person the Commission is of the opinion may be of assistance; and

(b)published in the required manner and in any other manner the Commission thinks fit.

(2)Subsection (1) does not apply when the Commission is exercising its jurisdiction under section 51A.

[Section 51BA inserted by No. 36 of 2006 s. 17.]

51BB.Right to be heard

The Commission shall not make a General Order under this Division until it has afforded —

(a)each person given notice under section 51BA(1)(a); and

(b)any other employer, employee, or other person permitted by the Commission to be heard,

an opportunity to be heard in relation to the matter.

[Section 51BB inserted by No. 36 of 2006 s. 17.]

51BC.Commissioner may deal with certain proceedings

The Chief Commissioner may direct a commissioner to deal with any conciliation or interlocutory or procedural matter arising during the determination of a General Order under this Division.

[Section 51BC inserted by No. 36 of 2006 s. 17.]

51BD.Registrar may prepare and publish provisions resulting from General Order

When the Commission makes a General Order under this Division which affects awards and industrial agreements, or awards or industrial agreements, in force under this Act, the Commission may, in respect of each award or industrial agreement so affected, direct the Registrar to prepare and publish in the required manner the provisions of that award or industrial agreement resulting from the operation of that General Order.

[Section 51BD inserted by No. 36 of 2006 s. 17.]

51BE.Publication of order

The Registrar shall publish in the required manner any General Order made under this Division.

[Section 51BE inserted by No. 36 of 2006 s. 17.]

Division 3A — MCE Act functions

[Heading inserted by No. 20 of 2002 s. 181.]

Subdivision 1 — Preliminary

[Heading inserted by No. 20 of 2002 s. 181.]

51C. Term used: Commission

(1)In this Division —

Commission means the Commission in Court Session.

(2)Subject to subsection (1), words and expressions in this Division that are defined in the MCE Act have the meanings that they have in that Act.

[Section 51C inserted by No. 20 of 2002 s. 181; amended by No. 36 of 2006 s. 18.]

[Subdivision 2 (s. 51D‑51H) deleted by No. 36 of 2006 s. 19.]

Subdivision 3 — Casual employees’ loading

[Heading inserted by No. 20 of 2002 s. 181.]

51I.Casual employees’ loading

(1)Subject to subsection (2), the Commission may, by way of order, set a percentage that is higher than 20% to be the prescribed percentage for the purposes of section 11 of the MCE Act.

(2)An order under subsection (1) can only be made on an application made —

(a)by the Council, the Chamber, the Mines and Metals Association or the Minister; and

(b)at least 12 months after the determination of the most recent application for an order under subsection (1).

[Section 51I inserted by No. 20 of 2002 s. 181.]

Subdivision 4 — Orders under this Division generally

[Heading inserted by No. 20 of 2002 s. 181.]

51J.Notification of hearings under this Division

The Commission shall ensure that notice of each initial hearing to be conducted for the purposes of making or reviewing an order under this Division is given —

(a)by giving written notice to the Council, the Chamber, the Mines and Metals Association, the Minister and each organisation; and

(b)by publication in the required manner.

[Section 51J inserted by No. 20 of 2002 s. 181.]

51K.Right to be heard

The Commission shall not make an order under this Division until it has afforded the Council, the Chamber, the Mines and Metals Association, the Minister and any other person permitted by the Commission to be heard, an opportunity to be heard in relation to the matter.

[Section 51K inserted by No. 20 of 2002 s. 181.]

51L.Restrictions on matters that orders under this Division can provide for

An order made under this Division shall not —

(a)provide for a penalty rate or allowance of any kind;

(b)provide for a loading of any kind other than that referred to in section 51I; or

(c)be made in respect of preference of employment at the time of, or during employment by reason of being or not being a member of an organisation.

[Section 51L inserted by No. 20 of 2002 s. 181.]

51M.Publication of orders

The Commission shall direct the Registrar to prepare and publish in the Industrial Gazette the provisions of all orders made under this Division.

[Section 51M inserted by No. 20 of 2002 s. 181.]

51N.Variation or rescission

[(1)deleted]

(2)An order made under section 51I shall not be added to, varied or rescinded except in accordance with section 51I(2).

(3)Nothing in subsection (2) affects the Commission’s powers under section 27(1)(m).

[Section 51N inserted by No. 20 of 2002 s. 181; amended by No. 36 of 2006 s. 20.]

Division 3B — Collective agreements and good faith bargaining

[Heading inserted by No. 36 of 2006 s. 25.]

51O.Terms used

(1)In this Division —

bargaining agent has the meaning given by section 51Q;

initiating party, in relation to a proposed collective agreement, means the person who initiates bargaining for the agreement under section 51R;

negotiating party, in relation to a proposed collective agreement, means —

(a)the initiating party;

(b)if the initiating party is an employer — any organisation that is —

(i)proposed to be bound by the proposed collective agreement; or

(ii)acting under section 51P on behalf of the employees whose employment is proposed to be subject to the proposed collective agreement;

(c)if the initiating party is an organisation of employees — the employer who is proposed to be bound by the proposed collective agreement;

organisation means —

(a)an organisation as defined in the Commonwealth Act; or

(b)a transitionally registered association as defined in Schedule 10 clause 1 of the Commonwealth Act.

(2)In this Division each of the following terms has the meaning given to it by the Commonwealth Act —

(a)collective agreement;

(b)employee;

(c)employer;

(d)employment;

(e)nominal expiry date.

[Section 51O inserted by No. 36 of 2006 s. 25.]

51P.Representation by organisation

An organisation may act under this Division on behalf of employees whose employment is proposed to be subject to a proposed collective agreement if —

(a)at least one of those employees has requested the organisation in writing to act on behalf of the employees; and

(b)the employee making the request is a member of the organisation or is eligible to become a member of the organisation.

[Section 51P inserted by No. 36 of 2006 s. 25.]

51Q.Bargaining agents

(1)For the purposes of this Division, a person is a bargaining agent if —

(a)that person has been appointed in writing by a negotiating party to be that party’s bargaining agent in relation to a proposed collective agreement;

(b)a copy of the appointment has been provided to the other negotiating party; and

(c)the appointment has not been terminated.

(2)An appointment of a bargaining agent may be terminated at any time by notice of termination given by the negotiating party who appointed the agent in writing to the agent.

(3)A copy of a notice of termination must be given to each other negotiating party.

(4)For the purposes of section 12 of the Legal Profession Act 2008 a bargaining agent is authorised to provide advice and other services in relation to bargaining for a collective agreement.

[Section 51Q inserted by No. 36 of 2006 s. 25; amended by No. 21 of 2008 s. 668(5).]

51R.Initiating bargaining for collective agreement

(1)Bargaining for a proposed collective agreement may be initiated by an organisation of employees or an employer (the initiating party) giving to each other negotiating party and filing in the office of the Registrar a written notice that complies with subsection (3).

(2)Subject to section 51P, an organisation of employees may initiate bargaining under subsection (1) on behalf of employees whose employment will be subject to the proposed collective agreement.

(3)A notice complies with this subsection if it is accompanied by particulars of —

(a)the business to be covered by the proposed collective agreement;

(b)the types of employees whose employment will be subject to the proposed collective agreement and the other persons who will be bound by the proposed collective agreement;

(c)the proposed nominal expiry date of the proposed collective agreement; and

(d)any other matter prescribed by regulations made by the Governor for the purposes of this section.

(4)If bargaining is initiated under subsection (1) with more than one negotiating party to the proposed collective agreement, all the parties are to bargain together unless the Commission, on the application of a negotiating party, directs that that party may bargain separately with another negotiating party.

[Section 51R inserted by No. 36 of 2006 s. 25.]

51S.Good faith bargaining for collective agreement

(1)If bargaining for a collective agreement has been initiated under section 51R the negotiating parties must bargain in good faith for the agreement.

(2)Without limiting the meaning of the expression, bargaining in good faith includes —

(a)doing the things set out in section 42B(2)(a) to (d) and (f) to (h); and

(b)recognising a bargaining agent duly appointed for the purpose of bargaining for the collective agreement.

(3)A code of good faith in force under section 42C applies, with necessary changes and to the extent that is practicable, in relation to bargaining for a collective agreement.

[Section 51S inserted by No. 36 of 2006 s. 25.]

51T.Application of sections 42D and 42E

(1)Section 42D and, subject to subsection (2), section 42E apply, with necessary changes, in relation to bargaining for a collective agreement and, for that purpose, any reference in those sections to a term used in this Division has the meaning given to that term in this Division.

(2)The Commission must not give any direction or make any order or declaration requiring, or having the effect of requiring, a negotiating party to enter into a collective agreement or to include any matter in, or exclude any matter from, a collective agreement.

[Section 51T inserted by No. 36 of 2006 s. 25.]

Division 4 — Industrial organisations and associations

[Heading amended by No. 119 of 1987 s. 14.]

52. Terms used

In this Division, unless a contrary intention appears — 

collegiate electoral system, in relation to an election for an office in an organisation, means a method of election comprising a first stage, at which persons are elected to a number of offices by a direct voting system, and a subsequent stage or subsequent stages at which persons are elected by secret ballot by and from the persons elected at the immediately preceding stage;

direct voting system, in relation to an election for an office in an organisation, means a method of election by secret postal ballot at which all financial members, or all financial members included in such branch, section, or other division, or in such class, as is appropriate, having regard to the nature of the office, are, subject to reasonable provisions with respect to enrolment, eligible to vote;

one‑tier collegiate electoral system means a collegiate electoral system comprising only one stage after the first stage;

postal ballot means a ballot for the purposes of which a ballot paper is sent by prepaid post to each person entitled to vote and facilities are provided for the return of the completed ballot paper by post by the voter without expense to him.

[Section 52 amended by No. 119 of 1987 s. 15.]

53.Qualifications for and basis of registration of organisations of employees

(1)Subject to this Act, any unregistered organisation consisting of not less than 200 employees associated for the purpose of protecting or furthering the interests of employees may be registered by authority of the Full Bench.

(2)Subject to this Act, an unregistered organisation consisting of less than 200 employees may be registered by authority of the Full Bench if the Full Bench is satisfied that there is good reason, consistent with the objects prescribed in section 6, to permit registration.

[Section 53 inserted by No. 94 of 1984 s. 34.]

54.Qualifications for and basis of registration of organisations of employers

(1)Subject to this Act, an unregistered organisation consisting of 2 or more employers who — 

(a)have, in the aggregate throughout the 6 months immediately preceding the date of application for registration employed on an average, taken per month, not less than 200 employees; and

(b)are associated for the purpose of protecting or furthering the interests of those employers,

may be registered by authority of the Full Bench.

(2)Subject to this Act an unregistered organisation that does not comply with subsection (1)(a) may be registered by authority of the Full Bench if the Full Bench is satisfied that there is good reason, consistent with the objects prescribed in section 6, to permit registration.

[Section 54 inserted by No. 94 of 1984 s. 34.]

55.Requirements attaching to organisation seeking registration

(1)An organisation seeking registration under section 53 or 54 shall lodge in the office of the Registrar — 

(a)a list of the officers of the organisation with their addresses;

(b)3 copies of the rules of the organisation; and

(c)the prescribed form of application.

(2)When the organisation has complied with the requirements of subsection (1) the Registrar shall publish in the required manner — 

(a)a notice of the application;

(b)a copy of such rules of the organisation as relate to the qualification of persons for membership of the organisation and, without limiting the generality thereof, including any rule by which the area of the State within which the organisation operates, or intends to operate, is limited; and

(c)notice that any person who objects to the registration of the organisation and who, having given notice of that objection within the time and in the manner prescribed, satisfies the Full Bench that he has a sufficient interest in the matter, may appear and be heard in objection to the application.

(3)An application under this section shall not be listed for hearing before the Full Bench until after the expiration of 30 days from the day on which the matters referred to in subsection (2) are first published.

(4)Notwithstanding that an organisation complies with section 53(1) or 54(1) or that the Full Bench is satisfied for the purposes of section 53(2) or 54(2), the Full Bench shall refuse an application by the organisation under this section unless it is satisfied that — 

(a)the application has been authorised in accordance with the rules of the organisation;

(b)reasonable steps have been taken to adequately inform the members — 

(i)of the intention of the organisation to apply for registration;

(ii)of the proposed rules of the organisation; and

(iii)that the members or any of them may object to the making of the application or to those rules or any of them by forwarding a written objection to the Registrar,

and having regard to the structure of the organisation and any other relevant circumstance, the members have been afforded a reasonable opportunity to make such an objection;

(c)in relation to the members of the organisation — 

(i)less than 5% have objected to the making of the application or to those rules or any of them, as the case may be; or

(ii)a majority of the members who voted in a ballot conducted in a manner approved by the Registrar has authorised or approved the making of the application and the proposed rules;

(d)in relation to the alteration of the rules of the organisation, those rules provide for reasonable notice of any proposed alteration and reasons therefor to be given to the members of the organisation and for reasonable opportunity for the members to object to any such proposal; and

(e)rules of the organisation relating to elections for office — 

(i)provide that the election shall be by secret ballot; and

(ii)conform with the requirements of section 56(1),

and are such as will ensure, as far as practicable, that no irregularity can occur in connection with the election.

(5)Notwithstanding that an organisation complies with section 53(1) or 54(1), the Full Bench shall refuse an application by the organisation under this section if a registered organisation whose rules relating to membership enable it to enrol as a member some or all of the persons eligible, pursuant to the rules of the first‑mentioned organisation, to be members of the first‑mentioned organisation unless the Full Bench is satisfied that there is good reason, consistent with the objects prescribed in section 6, to permit registration.

[Section 55 amended by No. 94 of 1984 s. 35 and 66; No. 79 of 1995 s. 31; No. 20 of 2002 s. 190(4) and (5).]

56.Rules to provide for secret ballots etc.

(1)The rules of an organisation — 

(a)shall provide for the conduct of every election to an office within the organisation (including the acceptance or the rejection of nominations) by a returning officer, not being the holder of any other office in, and not being an employee of, the organisation;

(b)shall provide that, if the returning officer conducting such election finds a nomination to be defective, he shall before rejecting the nomination, notify the person concerned of the defect, and where it is practicable to do so, give him the opportunity of remedying the defect within such period as is applicable under the rules, which shall, where practicable, be not less than 7 days after his being so notified;

(c)shall provide for the election of the holder of each office within the organisation, such election to be either by — 

(i)a direct voting system; or

(ii)a collegiate electoral system being, in the case of an office the duties of which are of a full‑time nature, a one‑tier collegiate electoral system;

(d)shall, in relation to any election for office — 

(i)provide that the election shall be by secret ballot;

(ii)make provision for — 

(I)absent voting;

(II)the manner in which persons may become candidates for election;

(III)the appointment, conduct and duties of returning officers;

(IV)the conduct of the ballot;

(V)the appointment, conduct, and duties of scrutineers to represent the candidates at the ballot; and

(VI)the declaration of the result of the ballot;

and

(iii)ensure, as far as practicable, that no irregularity can occur in connection with the election;

(e)shall not permit a person to be elected to hold an office within the organisation for a period exceeding 4 years without being re‑elected; and

(f)shall not permit a person to be elected to fill a casual vacancy in an office for a period exceeding the unexpired portion of the term of the person who has vacated the office.

(2)Where the rules of an organisation which was registered immediately prior to the coming into operation of this section do not, in the opinion of the Registrar, conform with the requirements of subsection (1), the Registrar may, after inviting the organisation to consult with him on the matter, allow the organisation such time as he determines within which to bring them into conformity with those requirements or determine such alterations of the rules as will in his opinion bring them into conformity with those requirements.

(3)The Registrar shall register the alterations determined by him, or made by the organisation to his satisfaction, pursuant to subsection (2) and thereupon the rules shall be deemed to be altered accordingly.

[Section 56 inserted by No. 94 of 1984 s. 36.]

56A. Rules may provide for casual vacancies to be filled in alternative manner

(1)This section has effect notwithstanding any other provision of this Act.

(2)Subject to subsection (3), rules made by an organisation under this subsection may provide for the filling of a casual vacancy in such manner as is provided in those rules.

(3)Rules made under subsection (2) shall include provision to the effect that a casual vacancy may be filled in a manner provided in those rules — 

(a)where the original term did not exceed 12 months — for the unexpired portion of the original term; or

(b)where the original term exceeded 12 months — for so much of the unexpired portion of the original term as does not exceed three‑quarters of the original term.

(4)In subsection (3) original term, in relation to a casual vacancy in an office, means the period in respect of which the last person to have been elected to that office to fill a vacancy other than a casual vacancy was elected.

(5)Where a vacancy in an office is filled in a manner provided in rules made under subsection (2), the person so filling the vacancy shall be taken for the purposes of this Act (other than this section) and the provisions of the rules of the organisation (other than the first‑mentioned rules), to have been elected to that office in accordance with those provisions.

[Section 56A inserted by No. 94 of 1984 s. 36.]

57.Elections to be by secret postal ballot

(1)Every election by a direct voting system for an office in an organisation shall be by secret postal ballot.

(2)The regulations may make provision for and in relation to the conduct of an election in accordance with the requirements of this section.

(3)Where the rules of an organisation as in force at the date of the coming into operation of this section provide for an election or elections to which this section applies to be by a secret ballot other than a secret postal ballot, the Registrar may, upon application by the organisation in accordance with the regulations, by instrument in writing under his hand, exempt the organisation in respect of an election from the application of this section if he is satisfied that the conduct of the election in accordance with those rules — 

(a)is likely to result in a fuller participation by members of the organisation in the ballot than would result from a postal ballot; and

(b)will afford members entitled to vote an adequate opportunity of voting without intimidation.

(4)This section, and the regulations made for the purposes of this section, have effect notwithstanding anything contained in the rules of an organisation.

(5)This section does not apply to an election any step in which was taken, in accordance with the rules of the organisation, before the date of the coming into operation of this section.

[Section 57 amended by No. 94 of 1984 s. 66.]

58.Registration of organisation

(1)Where, under this Act, the Registrar is authorised by the Full Bench to register an organisation he shall so register it by registering — 

(a)its name;

(b)its rules; and

(c)the address of the office where the business of the organisation is conducted,

and shall thereupon give to the organisation a certificate in the prescribed form which until cancelled is, subject to this Act, conclusive evidence of the registration of the organisation under this Act and of the organisation having complied with the prescribed conditions that entitle it to be so registered.

(2)Where the Full Bench authorises the Registrar to register an organisation it may do so — 

(a)unconditionally; or

(b)subject to the compliance by the organisation with any direction given to it by the Full Bench in dealing with the application by the organisation for registration.

(3)On an application for the registration of an organisation the agent or representative of the applicant may request the Full Bench to authorise the rules of the organisation to be registered in terms that exclude certain persons or classes of persons from the description of persons who would have been eligible for enrolment as members of the organisation under the rules as lodged under section 55(1)(b) and, if so requested, the Full Bench may authorise the Registrar to register the rules in those terms.

[Section 58 amended by No. 94 of 1984 s. 37 and 66.]

59.Registered name

(1)The Full Bench shall not authorise the registration of an organisation under a name identical with that by which any other organisation has been registered or which by reason of its resemblance to the name of another organisation or body or for any other reason is, in the opinion of the Full Bench, likely to deceive or mislead any person.

(2)The registered name shall clearly indicate whether the organisation is an organisation of employers or an organisation of employees.

(3)This section does not prevent the Full Bench from authorising an organisation to which a certificate has been issued under section 71 to change its name so as to correspond with the name of its counterpart Federal body under that section.

[Section 59 amended by No. 94 of 1984 s. 66.]

60.Incorporation of organisation upon registration

(1)An organisation shall, upon and during registration, become and be, for the purposes of this Act, a body corporate by the registered name, having perpetual succession and a common seal, but, subject to this Act, an organisation may at any time, with the consent of the Full Bench, change its name.

(2)An organisation may sue and be sued and may purchase, take on lease, hold, sell, lease, mortgage, exchange, and otherwise own, possess, and deal with any real or personal property.

(3)The service on an organisation of any process, notice, or document of any kind may be effected by delivering it to the secretary or principal executive officer of the organisation or by leaving it at the office referred to in section 58 or by posting it to that office by certified mail addressed to the secretary of the organisation or in such other manner as may be prescribed.

[Section 60 amended by No. 94 of 1984 s. 66; No. 119 of 1987 s. 16.]

61.Effect of registration

Upon and after registration, the organisation and its members for the time being shall be subject to the jurisdiction of the Court and the Commission and to this Act; and, subject to this Act, all its members shall be bound by the rules of the organisation during the continuance of their membership.

[Section 61 amended by No. 94 of 1984 s. 66.]

62.Alteration of registered rules

(1)Upon and after the registration of rules in accordance with section 58(1), an alteration to those rules by the organisation concerned shall not be or become effective until the Registrar has given to the organisation a certificate that the alteration has been registered.

(2)The Registrar shall not register any alteration to the rules of an organisation that relates to its name, qualifications of persons for membership, or a matter referred to in section 71(2) or (5) unless so authorised by the Full Bench.

(3)Subject to section 71(8), the Registrar shall not register an alteration to any rule unless, after consulting with the President, he is satisfied that — 

(a)the application has been authorised in accordance with the rules of the organisation;

(b)reasonable steps have been taken to adequately inform the members — 

(i)of the proposal for alteration and the reasons therefor; and

(ii)that the members or any of them may object to the proposed alteration by forwarding a written objection to the Registrar,

and, having regard to the structure of the organisation, and any other relevant circumstance, the members have been afforded a reasonable opportunity to object to the alteration; and

(c)less than 5% of the members of the organisation has objected to the proposed alteration or a majority of the members who voted in a ballot conducted in a manner approved by the Registrar has authorised or approved the proposed alteration.

(4)Sections 55, 56 and 58(3) apply, with such modifications as are necessary, to and in relation to an application by an organisation for alteration of a rule of a kind referred to in subsection (2).

[Section 62 amended by No. 94 of 1984 s. 38 and 66.]

63.Records to be kept by organisation

(1)An organisation shall keep the following records — 

(a)a register of its members showing the name and residential address of each member and details of the financial status of each member in respect of his membership;

(b)a list of the names, residential addresses, and occupations of the persons holding offices in the organisation;

(c)accounting records that are in accordance with generally accepted accounting principles and truly record and explain the financial transactions and financial position of the organisation; and

(d)such other records as are prescribed.

(2)An organisation shall file with the Registrar once in each year, at such time as is prescribed, a copy of the records required to be kept under subsection (1)(b) and a record of the number of members in the organisation, certified by statutory declaration by the Secretary or other prescribed officer of the organisation to be a correct statement of the information contained therein.

(3)An organisation shall file with the Registrar in such manner and within such time as is prescribed notification of changes in the holding of offices.

[(4), (5)deleted]

(6)All documents filed with the Registrar pursuant to this section and section 65 shall be made available for inspection at the office of the Registrar as prescribed.

(7)The register of members of an organisation shall be made available by the organisation for inspection by such persons as are authorised by the Registrar, at such times as are appointed by him, at the office of the organisation.

[Section 63 amended by No. 94 of 1984 s. 39, 65 and 66; No. 79 of 1995 s. 5.]

64.Registrar may direct that form of membership register be altered

(1)Where it appears to the Registrar that the register of members of an organisation is not being maintained in such a form and manner as to provide, for the purpose of the conduct of a ballot or election pursuant to this Act, a convenient form of the accurate particulars of the membership of the organisation, he may direct the organisation to make such rectifications in the register and such changes in the form or manner in which the register is being maintained, as he considers necessary for that purpose.

(2)An organisation to which a direction is given under subsection (1) shall comply therewith.

(3)A certificate from the Registrar stating that a person specified in the certificate was at a time so specified a member or officer of an organisation so specified is, in all courts and proceedings, evidence of the facts so stated.

[Section 64 amended by No. 94 of 1984 s. 65 and 66.]

64A. Resignation from an organisation

(1)A member of an organisation may end that membership by written notice of resignation addressed to the organisation.

(2)A notice of resignation shall be served on the organisation by —

(a)delivering it personally to the organisation’s office at the address registered under section 58(1)(c); or

(b)sending it by certified mail to the address mentioned in paragraph (a) or to the address of the organisation as ascertained by referring to a current directory of telephone numbers.

(3)A notice of resignation takes effect on the day on which it is served on the organisation or on a later day specified in the notice.

[Section 64A inserted by No. 1 of 1995 s. 51.]

64B. Membership to end if subscription not paid

(1)Where — 

(a)a period in respect of which a subscription has been paid to an organisation for a person’s membership of the organisation expires; and

(b)no subscription to continue or renew that membership has been paid to the organisation before, or within 3 months after, that expiry,

that membership ends by operation of this subsection at the end of that 3 month period.

(2)Subsection (1) does not apply if the membership has already ended under section 64A or under the rules of the organisation.

[Section 64B inserted by No. 1 of 1995 s. 51.]

64C. Effect of sections 64A and 64B in relation to rules

(1)The ways of ending membership of an organisation set out in sections 64A and 64B are in addition to any ways of ending that membership provided for in the rules of the organisation.

(2)The ending of membership of an organisation under section 64A or 64B has effect despite anything in the rules of the organisation.

[Section 64C inserted by No. 1 of 1995 s. 51.]

64D. Purging the register

The rules of an organisation shall provide for the register referred to in section 63 to be purged on not less than 4 occasions in each year by striking off the names of members whose membership has ended under section 64A or 64B or under the rules.

[Section 64D inserted by No. 79 of 1995 s. 32.]

65.Audit and filing of accounts of organisation

The secretary of each organisation shall — 

(a)cause the accounting records of that organisation to be properly audited by a person registered as an auditor under the Corporations Act 2001 of the Commonwealth (in this section called the auditor) within 6 calendar months after the end of each financial year of that organisation; and

(b)within one calendar month after the completion of the audit referred to in paragraph (a), deliver to the Registrar — 

(i)a balance sheet of the assets and liabilities of that organisation audited by the auditor and made up to the date of the closing of the accounts of that organisation in respect of the financial year concerned;

(ii)a statement of the receipts and expenditure of that organisation during the financial year concerned audited by the auditor; and

(iii)a cash flow statement of the organisation for the financial year concerned audited by the auditor.

[Section 65 inserted by No. 121 of 1982 s. 22; amended by No. 94 of 1984 s. 65 and 66; No. 79 of 1995 s. 6; No. 10 of 2001 s. 112; No. 74 of 2003 s. 68(2).]

65A.Powers of auditor

For the purposes of auditing the accounting records of an organisation or of performing any function conferred on the auditor under this Act, the auditor of an organisation is entitled —

(a)to have full and free access at all reasonable times to all records or documents relating to the receipt or expenditure of moneys by the organisation, or the acquisition, use or disposal of assets of the organisation, or the incurring of liabilities by the organisation; and

(b)to require any officer or employee of the organisation to provide the auditor with any information or explanation that the auditor wants.

[Section 65A inserted by No. 79 of 1995 s. 7.]

66.Power of President to deal with complaints by members, certain other persons or Registrar against organisation

(1)The following persons may apply to the President for an order or direction under this section — 

(a)a person who is or has been a member of an organisation; or

(b)a person who has applied for and not been admitted to membership in an organisation; or

(c)the Registrar acting on the complaint of or on behalf of a person referred to in paragraph (a) or of his own motion.

(2)On an application made pursuant to this section, the President may make such order or give such directions relating to the rules of the organisation, their observance or non‑observance or the manner of their observance, either generally or in the particular case, as he considers to be appropriate and without limiting the generality of the foregoing may — 

(a)disallow any rule which, in the opinion of the President — 

(i)is contrary to or inconsistent with any Act or law, or an award, industrial agreement, order or direction made, registered or given under this Act;

(ii)is tyrannical or oppressive;

(iii)prevents or hinders any member of the organisation from observing the law or the provisions of an award, industrial agreement, order or direction made, registered or given under this Act;

(iv)imposes unreasonable conditions upon the membership of a member or upon an applicant for membership; or

(v)is inconsistent with the democratic control of the organisation by its members;

(b)instead of disallowing a rule under paragraph (a), direct the organisation to alter that rule within a specified time in such manner as the President may direct;

(c)disallow any rule which has not been altered by the organisation after a direction to do so pursuant to paragraph (b);

(ca)where the President disallows any rule under paragraph (a) or (c), give such directions as the President considers necessary to remedy, rectify, reverse or alter or to validate or give effect to, any act, matter or thing that has been done in pursuance of the disallowed rule;

(d)declare the true interpretation of any rule;

(e)inquire into any election for an office in the organisation if it is alleged that there has been an irregularity in connection with that election and make such orders and give such directions as the President considers necessary — 

(i)to cure the irregularity including rectifying the register of members of the organisation; or

(ii)to remedy or alter any direct or indirect consequence thereof;

and

(f)in connection with an inquiry under paragraph (e) — 

(i)give such directions as the President considers necessary to the Registrar or to any other person in relation to ballot papers, envelopes, lists, or other documents of any kind relating to the election;

(ii)order that any person named in the order shall or shall not, as the case may be, for such period as the President considers reasonable in the circumstances and specifies in the order, act or continue to act in and be deemed to hold an office to which the inquiry relates;

(iii)declare any act done in connection with the election to be void or validate any act so done.

(3)The decision of the President shall be signed and delivered by him.

(4)Any person to whom an order or direction given or made under this section applies shall comply with that order or direction whether or not it is contrary to or inconsistent with any rule of the organisation concerned.

[(5)deleted]

(6)A rule disallowed pursuant to subsection (2)(a) or (c) is void.

(7)When 6 months have elapsed after the coming into operation of section 51 of the Industrial Legislation Amendment Act 1995 1 the Registrar shall review the rules of each organisation and shall, by application pursuant to this section, bring before the President the rules of any organisation if, in the opinion of the Registrar, any such rule is contrary to or inconsistent with section 64A or 64B.

(8)Within 6 months of the coming into operation of section 10 of the Labour Relations Legislation Amendment Act 1997 1 the Registrar shall review the rules of each organisation of employees and shall, by application pursuant to this section, bring before the President the rules of any organisation of employees if, in the opinion of the Registrar, any of those rules is contrary to or inconsistent with Part VIB.

(9)The power of the President under subsection (2)(d) may, on a reference made under section 27(1)(u), be exercised by the Full Bench.

[Section 66 amended by No. 94 of 1984 s. 40 and 66; No. 119 of 1987 s. 17; No. 1 of 1995 s. 52 and 53; No. 79 of 1995 s. 33; No. 3 of 1997 s. 12.]

67.Registration of industrial associations

(1)A council or other body, however designated, formed by and for the purpose of representing 2 or more organisations to the extent that they have industrial interests in common may, subject to this Act, be registered as an association under this Act.

(2)An association registered pursuant to subsection (1) may act on behalf of all employees eligible for membership of any of the organisations represented by the association in respect of a calling or industry in respect of which the association was formed.

(3)Subject to this section, the provisions of this Act relating to organisations, their rules, records, officers and members shall extend and apply, with such modifications as are necessary, to an association, its rules, records, officers and members respectively.

[Section 67 inserted by No. 94 of 1984 s. 41.]

68.Declaration by Full Bench as to certain functions

The Full Bench may, on its own motion or on the application of a person of a kind referred to in section 66(1), declare all or any of the functions of an office to be those of an office in an organisation.

[Section 68 amended by No. 94 of 1984 s. 66.]

69.Conduct of election by Registrar or Electoral Commissioner

(1)An election for an office in an organisation may be conducted pursuant to this section where the Registrar decides that a request that the election be so conducted has been duly made.

(2)A request is duly made if it is made in writing within the time prescribed — 

(a)by an officer of an organisation on behalf of the organisation; or

(b)by a person authorised to make the request by and on behalf of not less than 1/20th of the members of, or 250 of the members of the organisation, whichever is the lesser number.

(3)Where a request is made or purports to be made in accordance with this section, the Registrar shall, after making such inquiries, if any, as he considers necessary, decide whether or not the request has been duly made.

(4)Where the Registrar decides that a request has been duly made, he shall inform the organisation, and, where the request was made by a person referred to in subsection (2)(b), that person, accordingly, and make arrangements with the Electoral Commissioner appointed under the Electoral Act 1907 for the conduct of the election by an officer holding office under that Act or by some other person authorised in writing by the Electoral Commissioner.

(5)Notwithstanding anything contained in the rules of the organisation, the person conducting the election may take such action and give such directions as he considers necessary in order — 

(a)to ensure that no irregularities occur in or in connection with the election;

(b)to rectify the register of members of the organisation; or

(c)to remedy procedural defects which appear to him to exist in those rules.

(6)A person shall not — 

(a)refuse or fail to comply with a direction given in accordance with subsection (5); or

(b)obstruct or hinder — 

(i)the person conducting an election under this section in the conduct of the election or the taking of any action in accordance with subsection (5); or

(ii)any other person in the carrying out of a direction given in accordance with subsection (5).

(7)An election conducted pursuant to this section is not invalid by reason only of an irregularity in the request in pursuance of which the election was conducted or by reason of a breach of the rules of the organisation involved in anything done or omitted, or in compliance with a direction given, in accordance with this section.

(8)The expense of any election conducted in accordance with this section shall be borne by the State; and the Consolidated Account is to the necessary extent appropriated accordingly.

(9)The Secretary of the organisation shall, within such time as the Registrar may require, lodge with the Registrar a copy of the register of members referred to in section 63 and that register shall be open for inspection and extracts may be taken therefrom, at the office of the person conducting the election, by any member of the organisation or candidate at the election.

(10)In proceedings before the Commission or any court in connection with anything done or proposed to be done by reason of a request duly made in accordance with this section the copy register referred to in subsection (9) is evidence that the persons shown therein as members of the organisation were, at the date on which that request was so made, members of the organisation.

(11)Where the Registrar decides that a request has not been duly made under this section he shall inform the organisation and, where the request has been made by a person referred to in subsection (2)(b), that person, accordingly.

(12)The officer or person who made the request for the conduct of the election under this section may, within 7 days of the organisation or that person, as the case may be, being informed by the Registrar of his decision that the request has not been duly made, appeal to the Full Bench in the manner prescribed against that decision.

[Section 69 amended by No. 94 of 1984 s. 42, 65 and 66; No. 98 of 1985 s. 3; No. 6 of 1993 s. 11; No. 1 of 1995 s. 53; No. 77 of 2006 s. 4.]

70.Offences in relation to elections

(1)A person shall not, without lawful authority or excuse, in or in connection with an election for an office — 

(a)personate another person to secure a ballot paper to which the personator is not entitled, or personate another person for the purpose of voting;

(b)destroy, deface, alter, take, or otherwise interfere with a nomination paper, ballot paper, or envelope;

(c)put or deliver a ballot paper or other paper — 

(i)into a ballot box or other ballot receptacle;

(ii)into the post; or

(iii)to a person receiving ballot papers for the purposes of the election;

(d)record a vote which he is not entitled to record;

(e)record more than one vote;

(f)forge or utter, knowing it to be forged, a nomination paper, ballot paper, or envelope;

(g)supply a ballot paper;

(h)obtain, or have in his possession, a ballot paper; or

(i)destroy, take, open, or otherwise interfere with a ballot box.

(2)A person shall not, in or in connection with an election for an office — 

(a)threaten, offer or suggest violence, injury, punishment, damage, loss, disadvantage, or any form of intimidation for or on account of, or to induce — 

(i)candidature or withdrawal of candidature;

(ii)a vote or an omission to vote;

(iii)support or opposition to a candidate; or

(iv)a promise of a vote, or an omission to vote, or of support for, or of opposition to a candidate;

or

(b)use, cause, inflict, or procure violence, punishment, damage, loss, disadvantage, or any form of intimidation for or on account of any such candidature, withdrawal, vote, omission, support, or opposition.

(3)A contravention of subsection (1) or (2) is not an offence but those subsections are civil penalty provisions for the purposes of section 83E.

[Section 70 amended by No. 94 of 1984 s. 65; No. 1 of 1995 s. 53; No. 20 of 2002 s. 152(1) 5.]

71.Provisions relating to State branches of Federal organisations

(1)In this section — 

Branch means the Western Australian Branch of an organisation of employees registered under the Commonwealth Act;

counterpart Federal body, in relation to a State organisation, means a Branch the rules of which — 

(a)relating to the qualifications of persons for membership; and

(b)prescribing the offices which shall exist within the Branch,

are, or, in accordance with this section, are deemed to be, the same as the rules of the State organisation relating to the corresponding subject matter; and

State organisation means an organisation that is registered under Division 4 of Part II.

(2)The rules of the State organisation and its counterpart Federal body relating to the qualifications of persons for membership are deemed to be the same if, in the opinion of the Full Bench, they are substantially the same.

(3)The Full Bench may form the opinion that the rules referred to in subsection (2) are substantially the same notwithstanding that a person who is — 

(a)eligible to be a member of the State organisation is, by reason of his being a member of a particular class of persons, ineligible to be a member of that State organisation’s counterpart Federal body; or

(b)eligible to be a member of the counterpart Federal body is, for the reason referred to in paragraph (a), ineligible to be a member of the State organisation.

(4)The rules of a counterpart Federal body prescribing the offices which shall exist in the Branch are deemed to be the same as the rules of the State organisation prescribing the offices which shall exist in the State organisation if, for every office in the State organisation there is a corresponding office in the Branch.

(5)Where, after the coming into operation of this section — 

(a)the rules of a State organisation are altered pursuant to section 62 to provide that each office in the State organisation may, from such time as the committee of management of the State organisation may determine, be held by the person who, in accordance with the rules of the State organisation’s counterpart Federal body, holds the corresponding office in that body; and

(b)the committee of management of the State organisation decides and, in the prescribed manner notifies the Registrar accordingly, that from a date specified in the notification all offices in the State organisation will be filled in accordance with the rule referred to in paragraph (a),

the Registrar shall issue the State organisation with a certificate which declares — 

(c)that the provisions of this Act relating to elections for office within a State organisation do not, from the date referred to in paragraph (b), apply in relation to offices in that State organisation; and

(d)that, from that date, the persons holding office in the State organisation in accordance with the rule referred to in paragraph (a) shall, for all purposes, be the officers of the State organisation,

and the certificate has effect according to its tenor.

(6)A State organisation to which a certificate issued under this section applies may, notwithstanding any provision in its rules to the contrary, make an agreement with the organisation of which the State organisation’s counterpart Federal body is the Branch, relating to the management and control of the funds or property, or both, of the State organisation.

(7)Where a memorandum of an agreement referred to in subsection (6) is — 

(a)sealed with the respective seals of the State organisation and the other organisation concerned;

(b)signed on behalf of the State organisation and the other organisation by the persons authorised under their respective rules to execute such an instrument; and

(c)lodged with the Registrar,

the Full Bench may, if it is satisfied that the terms of the agreement are not detrimental to the interests of persons who are eligible to be members of the State organisation and of its counterpart Federal body and will not prevent or hinder the State organisation from satisfying any debt or obligation howsoever arising, approve the agreement.

(8)Where the Full Bench approves an agreement under subsection (7) the Registrar shall — 

(a)register the memorandum as an alteration to the rules of the State organisation;

(b)amend, where necessary, the certificate issued to the State organisation under subsection (5) by declaring that the State organisation is, from the date of registration of the memorandum, exempted from compliance with such provisions of this Act and to such an extent as the Full Bench may, having regard to the terms of the memorandum, direct; and

(c)notify the State organisation in writing of the matters referred to in paragraphs (a) and (b).

(9)After the issue to a State organisation of a certificate or an amended certificate under this section — 

(a)the rule referred to in subsection (5)(a) and a memorandum registered under subsection (8)(a) shall not be altered unless the alteration is approved by the Full Bench;

(b)an alteration to any rule of the State organisation other than the rule referred to in paragraph (a) may be registered by the Registrar if he is satisfied that the rule as so altered is the same as a rule of the State organisation’s counterpart Federal body; and

(c)every member of the State organisation’s counterpart Federal body who is eligible to be a member of the State organisation shall, for all the purposes of this Act and of any award, industrial agreement or order, be deemed to be a member of the State organisation.

(10)Before granting approval to an alteration of the rule or memorandum referred to in subsection (9)(a), the Full Bench may require compliance by the State organisation with such conditions as the Full Bench considers appropriate.

[Section 71 amended by No. 94 of 1984 s. 66; No. 119 of 1987 s. 18; No. 1 of 1995 s. 53; No. 74 of 2003 s. 68(3).]

71A. Adoption of rules of Federal organisations

(1)In this section — 

counterpart Federal body and State organisation have the same respective meanings as in section 71.

(2)Subject to this section, a State organisation may alter its rules (in this section referred to as the State rules) by including in the State rules a provision (in this section referred to as the adopting provision) stating that all of the rules of its counterpart Federal body other than — 

(a)a rule relating to the name of the State organisation;

(b)a rule relating to the qualifications of persons for membership; and

(c)any rule specifically excluded in the adopting provision,

are by force of this section adopted as rules of the State organisation.

(3)Subject to subsection (5) where a State organisation alters its rules under subsection (2) the rules adopted by that State organisation are by force of this section, and notwithstanding anything to the contrary in section 62, deemed to be rules of the State organisation.

(4)The rules adopted under subsection (2) include, unless provision to the contrary is made by the State organisation in the adopting provision — 

(a)any amendments made to those rules; and

(b)any further rules made by the counterpart Federal body,

after the coming into operation of the adopting provision.

(5)Where a State organisation makes an adopting provision under subsection (2) — 

(a)the Registrar shall register that adopting provision as an alteration to the rules of that State organisation; and

(b)that adopting provision shall not be or become effective until registered under paragraph (a).

(6)Section 62 does not apply to or in relation to the alteration of State rules under or by force of this section.

[Section 71A inserted by No. 99 of 1990 s. 9.]

72.Amalgamation of organisations

(1)Where 2 or more organisations (in this section referred to as the amalgamating organisations) apply for the registration of a new organisation and the rules of the proposed new organisation are such that the only persons eligible for membership of the new organisation will be persons who, if the amalgamating organisations had remained in being, would have been eligible for membership of at least one of the amalgamating organisations, the new organisation may be registered by authority of the Full Bench.

(2)An application under this section shall be made under the respective seals of the amalgamating organisations and shall be signed by the secretary and principal executive officer of each of those organisations.

(3)The provisions of this Division applying to and in relation to the registration of organisations under section 53(1) or 54(1), other than section 55(5), shall apply with such modifications as are necessary, to and in relation to the registration of an organisation under this section.

(4)Subsection (1) does not prevent the alteration, pursuant to this Act, at any time after an organisation has been registered under this section, of the rules referred to in that subsection.

(5)On and from the date on which an organisation is registered under this section — 

(a)the registration of each of the amalgamating organisations is cancelled;

(b)all the property, rights, duties, and obligations whatever held by, vested in, or imposed on each of those organisations shall be held by, vested in, or imposed on, as the case may be, the new organisation;

(c)actions and other proceedings already commenced by or against any of those organisations may be continued by or against the new organisation and the new organisation is substituted for each of those organisations as a party; and

(d)actions and other proceedings that could have been brought by or against any of those organisations may be brought by or against the new organisation.

[Section 72 inserted by No. 94 of 1984 s. 43; amended by No. 1 of 1995 s. 53; No. 79 of 1995 s. 34.]

72A. Coverage of employee organisations

(1)In this section — 

enterprise means — 

(a)a business, or part of a business, that is carried on by a single employer;

(b)a business, or part of a business, that is carried on by 2 or more employers as a joint venture or single enterprise;

(c)activities carried on by a public authority, or part of those activities; or

(d)a single project, undertaking or place of work;

organisation means an organisation of employees and includes the Western Australian Branch of the Australian Medical Association Incorporated.

(2)An organisation, an employer or the Minister may apply to the Full Bench for an order — 

(a)that an organisation has the right, to the exclusion of another organisation or other organisations, to represent under this Act the industrial interests of a particular class or group of employees employed in an enterprise who are eligible for membership of the organisation;

(b)that an organisation that does not have the right to represent under this Act the industrial interests of a particular class or group of employees employed in an enterprise has that right;

(c)that an organisation does not have the right to represent under this Act the industrial interests of a particular class or group of employees employed in an enterprise who are eligible for membership of the organisation.

(3)The Registrar shall publish notice of an application under subsection (2) in the Industrial Gazette and —

(a)in a newspaper circulating throughout the State; or

(b)on an internet website maintained by the Commission,

and the application shall not be listed for hearing before the Full Bench until after the expiration of 30 days from the day on which the notice is first published.

(4)On an application under subsection (2), the Full Bench may make one or more of the orders applied for, and may make any such order subject to any condition or limitation.

(5)The Full Bench shall not make any order described in subsection (2) without giving persons who, in the opinion of the Full Bench, have a sufficient interest in the matter an opportunity of being heard.

(6)Where an order is made under subsection (4), the Full Bench is to refer the matter to the President unless the Full Bench is satisfied that the rules of the organisations concerned do not need to be altered.

(7)On a referral under subsection (6) the President shall, after giving the organisations concerned an opportunity of being heard, make such alterations (if any) to the rules of the organisations as are, in the President’s opinion, necessary to reflect the order made by the Full Bench.

(8)An alteration shall be made by instrument in writing signed by the President and shall take effect on a day specified in the instrument.

[Section 72A inserted by No. 15 of 1993 s. 20; amended by No. 79 of 1995 s. 35; No. 20 of 2002 s. 190(6).]

72B. AMA may represent interests of medical practitioners

(1)In this section — 

medical practitioner means a person registered under the Health Practitioner Regulation National Law (Western Australia) in the medical profession;

WA Branch of the AMA means the Western Australian Branch of the Australian Medical Association Incorporated.

(2)The WA Branch of the AMA may represent under this Act the industrial interests of medical practitioners as if it were an organisation of employees and for that purpose — 

(a)the references to organisation in paragraphs (e), (i), (j), (k) and (l) of the definition of industrial matter in section 7(1) include the WA Branch of the AMA; and

(b)Divisions 2 and 3 of Part II, sections 80C(4) and 80F and Parts III and VIA apply to the WA Branch of the AMA as if it were an organisation of employees.

(3)The WA Branch of the AMA does not have the right, to the exclusion of an organisation or organisations, to represent under this Act the industrial interests of medical practitioners, unless an order to that effect is made under section 72A.

(4)Within 30 days of the coming into operation of section 36 of the Industrial Relations Legislation Amendment and Repeal Act 1995 1 the WA Branch of the AMA shall lodge with the Registrar a copy of its rules as then in force.

(5)The WA Branch of the AMA shall lodge with the Registrar, within 30 days of the making of the alteration, any alteration made to the rules lodged under subsection (4) as altered from time to time.

(6)The WA Branch of the AMA shall file with the Registrar once in each year, at such time as is prescribed — 

(a)a list of the names, residential addresses, and occupations of the persons holding offices in the Branch; and

(b)a record of the number of members of the Branch,

certified by statutory declaration by the Executive Director of the Branch to be a correct statement of the information contained in the list and the record.

[Section 72B inserted by No. 79 of 1995 s. 36; amended by No. 22 of 2008 Sch. 3 cl. 30(2); No. 35 of 2010 s. 99.]

73.Summons for cancellation or suspension of registration of organisation

(1)Subject to this section, the Commission may of its own motion or at the request of the Minister or any employer or organisation at any time direct the Registrar in writing to issue to an organisation a summons to appear before the Full Bench on a date specified in the summons, and show cause why the registration of the organisation under this Act should not be cancelled or suspended, as the case may be, either generally or with respect to any employee or group or class of employees.

(2)The Registrar shall ascertain from the President the date to be specified in the summons referred to in subsection (1) and that date shall not, without good cause, be less than 14 days from the date on which the summons is issued by the Registrar.

(3)In respect of a request made under subsection (1) — 

(a)where the request is made by the Minister and is accompanied by a declaration made by him that in his opinion — 

(i)the safety, health, or welfare of the community or a part of it is at risk; or

(ii)a number of a group or class of employees who are, or are eligible to be, members of the organisation is bound by an award under the Commonwealth Act,

the Commission shall give a direction under that subsection; and

(b)in any other case, the Commission may give a direction under that subsection if, by reason of the conduct of the organisation or its officers or members or any of them, either generally or in a particular case, it appears to the Commission that the continuance of the registration is not consistent with or will not serve the objects of this Act, but the Commission shall not give such a direction in a case to which this paragraph applies unless it has advised the organisation of its intention to do so and has invited such officers of the organisation as the Commission considers appropriate to consult with it in respect of that conduct.

(4)A direction to the Registrar under subsection (1) shall include a statement of the reasons for which the direction is given and a copy of that statement shall be attached to the summons referred to in that subsection and served therewith.

(5)The organisation concerned may apply to the Registrar for further particulars of the statement of reasons referred to in subsection (4) and the Registrar shall supply such further particulars as the commissioner who constituted the Commission that gave the direction may direct.

(6)For the hearing and determination of a matter under this section the commissioner referred to in subsection (5) shall not be a member of the Full Bench.

(7)On the return of the summons (not being a summons to which subsection (7b) applies) if it appears to the Full Bench that by reason of the conduct of the organisation or its officers or members or any of them, either generally or in any particular case, the continuance of the registration is not consistent with or will not serve the objects of this Act, the Full Bench — 

(a)shall make one of the orders described in subsection (7a); and

(b)may make one or both of the orders described in subsection (8).

(7a)The orders referred to in subsection (7)(a) are — 

(a)an order cancelling the registration of the organisation;

(b)an order cancelling the rights of the organisation under this Act either generally or with respect to any employee or group or class of employees specified in the order; or

(c)an order suspending for a time specified in the order or without limit of time and, in either case, subject to such conditions or exceptions, or both, as the Full Bench thinks fit, that registration or those rights.

(7b)On the return of a summons issued following a declaration by the Minister under subsection (3)(a)(ii), if it appears to the Full Bench that a number of a group or class of employees who are, or are qualified to be, members of an organisation is bound by an award under the Commonwealth Act, the Full Bench — 

(a)shall make an order cancelling the rights of the organisation under this Act with respect to that group or class of employees; and

(b)may make an order under subsection (8)(a).

(8)For the purposes of subsection (7) and notwithstanding anything in this Act, the orders which the Full Bench may make include — 

(a)an order with respect to the rules of the organisations cancelling or suspending or varying in any way the rules or any part of the rules referred to in section 55(2); and

(b)an order cancelling or suspending an award, industrial agreement or order or any provision of an award, industrial agreement or order.

(9)An order made under this section comes into operation and has effect from such date on or after the making of the order as the Full Bench may determine and specify therein, but it may be prescribed in the order that the order shall not commence to operate from the date specified therein if, before that date, the organisation satisfies the Full Bench that it has complied or is complying with conditions or requisitions made by the Full Bench when making the order.

(10)An order made under this section may provide for the cancellation of the registration of an organisation after such period of suspension of rights under this Act as the Full Bench considers necessary to enable any debts, liabilities, or obligations incurred by the organisation to be met and the period of suspension under this subsection may be extended by the Full Bench to such extent as may appear to the Full Bench to be necessary.

(11)An order made under this section has effect according to its tenor and the Registrar shall, where necessary, amend his records accordingly.

(12)The Full Bench shall cancel the registration of an organisation if it is satisfied on the application of the Registrar that — 

(a)the number of members of the organisation or, the number of employees of the members of the organisation would not entitle it to registration under section 53 or section 54, as the case may be;

(b)the organisation is defunct; or

(c)the organisation has, in the manner prescribed, requested that its registration be cancelled.

(12a)The Registrar shall make an application under subsection (12) in every case where it appears to him or her that there are sufficient grounds for doing so.

(13)Proceedings for the cancellation or suspension of the registration of an organisation, or any of its rights under this Act, shall not be instituted otherwise than under this section.

(14)During any period in which — 

(a)an organisation of employees is not registered; or

(b)the registration of an organisation of employees is suspended,

an employer shall not deduct from the wages of any employee any amount for or in respect of membership of the organisation.

Penalty: $2 000.

[Section 73 amended by No. 121 of 1982 s. 23; No. 94 of 1984 s. 44 and 66; No. 119 of 1987 s. 19; No. 15 of 1993 s. 21; No. 3 of 1997 s. 9 and 19; No. 20 of 2002 s. 193(2) and 194(6); amended in Gazette 15 Aug 2003 p. 3686.]

Division 5 — Duties of officers of organisations

[Heading inserted by No. 79 of 1995 s. 8(1); amended by No. 3 of 1997 s. 4; No. 20 of 2002 s. 192(1).]

74.Duties

(1)In this section and in section 77 — 

finance official means an officer of an organisation who is entitled to participate directly in the financial management of the organisation.

(2)A finance official is to act honestly at all times in the performance of the functions of the finance official’s office or employment.

(3)A finance official is to exercise a reasonable degree of care and diligence at all times in the performance of the functions of the finance official’s office or employment.

(4)The degree of care and diligence required by subsection (3) is the degree of care and diligence that a reasonable person in the finance official’s position would reasonably be expected to exercise.

(5)Each finance official of an organisation is to ensure that the organisation keeps and maintains accounting records as required by section 63(1)(c).

(6)A person who is or has been a finance official of an organisation is not to make use of information acquired by virtue of the person’s position as a finance official to obtain or seek to obtain directly or indirectly, a pecuniary advantage for the person or for any other person or to cause or seek to cause detriment, loss or damage to the organisation.

(7)Subsection (6) does not apply to acts done — 

(a)in and for the purposes of the performance of the functions of a finance official’s office or employment; or

(b)with the consent of the committee of management of the organisation.

(8)Details of any matter about which consent is given under subsection (7)(b) are to be disclosed by the committee of management to the members of the organisation in accordance with the rules of the organisation.

(9)A finance official of an organisation is not to make use of the finance official’s position as a finance official to obtain or seek to obtain, directly or indirectly, a pecuniary advantage for the official or for any other person or to cause or seek to cause detriment, loss or damage to the organisation.

(10)Subsection (9) does not apply to acts done in and for the purposes of the performance of the functions of a finance official’s office or employment.

(11)A finance official of an organisation is to provide the committee of management of the organisation with returns of the finance official’s pecuniary interests at such times and in such form as are prescribed by the rules of the organisation.

(12)A finance official of an organisation who has a material personal interest in a matter involving the organisation is to disclose the nature of the interest to the committee of management of the organisation as soon as is practicable after the relevant facts come to the finance official’s knowledge.

(13)Subject to section 79, this section is in addition to, and not in derogation of, any rule of law relating to the duties or liabilities of a finance official and does not prevent the institution of civil proceedings in respect of a breach of such a duty or in respect of such a liability.

[Section 74 inserted by No. 79 of 1995 s. 8(1); amended by No. 3 of 1997 s. 5; No. 20 of 2002 s. 192(2).]

75.Auditor to report on compliance with duties

(1)In reporting on the accounting records of an organisation under section 65 the auditor is to express an opinion as to whether any person has contravened or failed to comply with section 74.

(2)If the auditor finds that the accounting records are not in a form that enables an informed opinion to be expressed as required by subsection (1), the auditor is to report that finding.

[Section 75 inserted by No. 79 of 1995 s. 8(1).]

76.Rules are not to conflict with section 74 or 75

Within 6 months of the coming into operation of section 8 of the Industrial Relations Legislation Amendment and Repeal Act 1995 1 the Registrar shall review the rules of each organisation of employees and shall, by application pursuant to section 66, bring before the President the rules of any organisation of employees if, in the opinion of the Registrar, any of those rules is contrary to or inconsistent with section 74 or 75.

[Section 76 inserted by No. 79 of 1995 s. 8(1).]

77.Proceedings for breach of duty

(1)If a person who is or has been a finance official of an organisation (the respondent) contravenes or fails to comply with section 74 — 

(a)the organisation;

(b)an officer of the organisation;

(c)a member of the organisation;

(d)the Registrar or a deputy registrar; or

(e)an industrial inspector,

may apply in the prescribed manner to an industrial magistrate’s court for the enforcement of section 74.

(2)On the hearing of an application under subsection (1) the industrial magistrate’s court may, if the contravention or failure to comply is proved, do any one or more of the following — 

(a)by order, issue a caution to the respondent;

(b)subject to subsection (3) and section 79(5)(a), by order impose a penalty on the respondent of such amount as the industrial magistrate’s court considers just, but not exceeding $5 000;

(c)order the respondent to pay compensation to the organisation in respect of any loss or damage suffered by the organisation as a result of the contravention or failure to comply;

(d)order the restitution or forfeiture of any pecuniary advantage obtained by any person as a result of the contravention or failure to comply;

(e)order the respondent to do any specified thing or to cease any specified activity.

(3)Only one penalty can be imposed on the respondent under subsection (2)(b) in respect of contraventions or failures to comply arising out of one course of conduct.

(4)The industrial magistrate’s court may, by order, dismiss an application under subsection (1).

(5)Subject to subsection (6) an order under subsection (2) or (4) may be made with or without costs.

(6)Costs shall not be given against the Registrar, a deputy registrar or an industrial inspector in relation to proceedings under this section.

(7)Where the industrial magistrate’s court orders money to be paid under this section by way of a penalty, compensation, restitution, forfeiture or costs the industrial magistrate’s court shall state in the order the name of the person liable to pay the money and the name of the person to whom the money is to be paid.

[Section 77 inserted by No. 79 of 1995 s. 8(1); amended by No. 3 of 1997 s. 6.]

78.Failure to comply with order

A person who fails to comply with an order under section 77(2)(e) is guilty of an offence and liable to a penalty of $5 000 and a daily penalty of $500.

[Section 78 inserted by No. 3 of 1997 s. 7.]

79.Effect on or of other proceedings

(1)Subject to subsection (3), where an application is made to an industrial magistrate’s court under section 77, the matter to which the application relates (whether as shown in the application or as emerging in the course of the determination of the application) is not justiciable by another court in civil proceedings unless — 

(a)that matter was before that other court at the time when the application was made to the industrial magistrate’s court; or

(b)the application to the industrial magistrate’s court is withdrawn or not pursued.

(2)Where a matter that an industrial magistrate’s court has jurisdiction to determine under section 77 is before another court in civil proceedings, that other court may order that the matter be transferred to and determined by the industrial magistrate’s court.

(3)Where a matter that a court has jurisdiction to determine in civil proceedings is before an industrial magistrate’s court, the industrial magistrate’s court may order that the matter be transferred to and determined by that other court.

(4)In making an order for compensation, restitution or forfeiture under section 77(2)(c) or (d) an industrial magistrate’s court is to have regard to any amount that the respondent has been ordered to pay in civil proceedings relating to the same matter in another court.

(5)If criminal proceedings are instituted under any other enactment in respect of conduct that also constitutes a contravention of or failure to comply with section 74 — 

(a)an industrial magistrate’s court is not to impose a penalty under section 77(2)(b) in proceedings under section 77 in respect of the matter; but

(b)the outcome of the criminal proceedings is not to be taken into consideration in the determination of proceedings under section 77 in respect of the matter.

[Section 79 inserted by No. 3 of 1997 s. 7.]

80.Disqualification for breach of duty

(1)If an order is made against an officer of an organisation under section 77(2)(b), (c), (d) or (e), the industrial magistrate’s court may, on the application of the Registrar, order — 

(a)that the officer’s office becomes vacant when the order is made; and

(b)that, from the time when the order is made, the officer is disqualified from holding or acting in any office in the organisation during such period of not more than 3 years as is specified in the order.

(2)The industrial magistrate’s court may include in an order under subsection (1) any provision that it considers necessary to ensure the operation of the order and to provide for the election or appointment of a person to replace the officer whose office becomes vacant under the order.

(3)A person who performs or attempts to perform the functions of an office in the organisation while disqualified by an order under subsection (1) from holding or acting in the office commits an offence punishable by the Supreme Court as for a contempt.

[Section 80 inserted by No. 3 of 1997 s. 7.]

Part IIA — Constituent authorities

[Heading inserted by No. 94 of 1984 s. 47.]

[Division 1 (s. 73A, 80A, 80B) deleted by No. 1 of 1995 s. 10.]

Division 2 — Public service arbitrator and appeal boards

[Heading inserted by No. 94 of 1984 s. 47.]

80C. Construction and application of Division, and terms used

(1)For the purposes of this Division, unless the contrary intention appears — 

Arbitrator means the Commission constituted by a public service arbitrator appointed under this Division;

Association means the organisation registered as the Civil Service Association of Western Australia Incorporated;

Board means the Commission constituted as a Public Service Appeal Board established under this Division;

employer — 

(a)in relation to a government officer who is a public service officer, means the employing authority of that public service officer; and

(b)in relation to any other government officer, means the public authority by whom or by which that government officer is employed;

employing authority means employing authority within the meaning of the Public Sector Management Act 1994;

government officer means — 

(a)every public service officer;

(aa)each member of the Governor’s Establishment within the meaning of the Governor’s Establishment Act 1992;

(ab)each member of a department of the staff of Parliament referred to in, and each electorate officer within the meaning of, the Parliamentary and Electorate Staff (Employment) Act 1992;

(b)every other person employed on the salaried staff of a public authority; and

(c)any person not referred to in paragraph (a) or (b) who would have been a government officer within the meaning of section 96 of this Act as enacted before the coming into operation of section 58 of the Acts Amendment and Repeal (Industrial Relations) Act (No. 2) 1984 1,

but does not include — 

(d)any teacher;

(e)any railway officer as defined in section 80M; or

(f)any member of the academic staff of a post‑secondary education institution;

teacher includes —

(a)any person employed as a member of the teaching staff under section 235(1)(b) of the School Education Act 1999;

(b)any person who is a member of the teaching staff or another person appointed under section 236(2) and who is employed at a community kindergarten registered under Part 5 of the School Education Act 1999,

but does not include any public service officer, whether or not that public service officer holds or acts in a position in respect of which a teaching academic qualification is required.

(2)This Division shall be read in conjunction with the Public Sector Management Act 1994.

(3)Sections 80E and 80F do not apply to a government officer if and when he occupies — 

(a)an office for which the remuneration payable is determined or recommended pursuant to the Salaries and Allowances Act 1975; or

(b)an office for which the remuneration is determined by an Act to be at a fixed rate, or is determined or to be determined by the Governor pursuant to the provisions of any Act.

(4)Where any industrial matter in relation to a government officer or group of government officers is being dealt with under this Act and a question arises between 2 or more organisations as to which of them or whether or not one of them, should be named as a party to an award or order or should become a party to an industrial agreement, regard shall be had, when that question is being determined, to the past coverage of such government officers by organisations under awards, orders and industrial agreements and under unregistered industrial agreements that the Commission considers to be relevant.

[Section 80C inserted by No. 94 of 1984 s. 47; amended by No. 40 of 1992 s. 9(1); No. 32 of 1994 s. 14; No. 103 of 1994 s. 18; No. 1 of 1995 s. 11; No. 79 of 1995 s. 36; No. 36 of 1999 s. 247.]

80D. Appointment of public service arbitrators

(1)At least one public service arbitrator shall be appointed within the Commission.

(2)An additional public service arbitrator or additional public service arbitrators may be appointed within the Commission.

(3)An arbitrator shall be appointed by the Chief Commissioner from amongst the other commissioners.

(4)An arbitrator shall hold office for such period not exceeding 2 years as is specified in the instrument of his appointment and is eligible for reappointment.

(5)The office of an arbitrator becomes vacant if — 

(a)he ceases to be a commissioner; or

(b)his appointment as an arbitrator is terminated pursuant to subsection (6).

(6)The Chief Commissioner may at any time terminate the appointment of an arbitrator.

[Section 80D inserted by No. 94 of 1984 s. 47.]

80E. Jurisdiction of Arbitrator

(1)Subject to Division 3 of Part II and subsections (6) and (7), an Arbitrator has exclusive jurisdiction to enquire into and deal with any industrial matter relating to a government officer, a group of government officers or government officers generally.

(2)Without limiting the generality of subsection (1) the jurisdiction conferred by that subsection includes jurisdiction to deal with — 

(a)a claim in respect of the salary, range of salary or title allocated to the office occupied by a government officer and, where a range of salary was allocated to the office occupied by him, in respect of the particular salary within that range of salary allocated to him; and

(b)a claim in respect of a decision of an employer to downgrade any office that is vacant.

(3)An Arbitrator also has the jurisdiction conferred on an Arbitrator as a relevant industrial authority by —

(a)Part VID Division 5 Subdivision 3;

(b)section 97WI; and

(c)section 97WK.

(4)The jurisdiction referred to in subsection (3) is to be exercised in accordance with the relevant provisions of Part VID, and the provisions of —

(a)subsection (6); and

(b)section 80G,

do not apply to the exercise of any such jurisdiction by an Arbitrator.

(5)Nothing in subsection (1) or (2) shall affect or interfere with the exercise by an employer in relation to any government officer, or office under his administration, of any power in relation to any matter within the jurisdiction of an Arbitrator, but any act, matter or thing done by an employer in relation to any such matter is liable to be reviewed, nullified, modified or varied by an Arbitrator in the course of the exercise by him of his jurisdiction in respect of that matter under this Division.

(6)Notwithstanding subsection (1), but subject to subsection (7), an Arbitrator may — 

(a) with the consent of the Chief Commissioner refer an industrial matter referred to in subsection (1) or any part of that industrial matter to the Commission in Court Session for hearing and determination by the Commission in Court Session; and

(b)with the consent of the President refer to the Full Bench for hearing and determination by the Full Bench any question of law, including any question of interpretation of the rules of an organisation, arising in a matter before the Arbitrator,

and the Commission in Court Session or the Full Bench, as the case may be, may hear and determine the matter, or part thereof, or question, so referred.

(7)Notwithstanding subsections (1) and (6), an Arbitrator does not have jurisdiction to enquire into or deal with, or refer to the Commission in Court Session or the Full Bench, any matter in respect of which a procedure referred to in section 97(1)(a) of the Public Sector Management Act 1994 is, or may be, prescribed under that Act.

[Section 80E inserted by No. 94 of 1984 s. 47; amended by No. 99 of 1990 s. 12; No. 1 of 1995 s. 28; No. 20 of 2002 s. 9.]

80F. By whom matters may be referred to Arbitrator

(1)Subject to subsections (2) and (3) an industrial matter may be referred to an Arbitrator under section 80E by an employer, organisation or association or by the Minister.

(2)A claim mentioned in section 80E(2)(a) may be referred to an Arbitrator by the government officer concerned, or by an organisation on his behalf, or by his employer.

(3)A claim mentioned in section 80E(2)(b) may be referred to an Arbitrator by an organisation or an employer.

(4)A government officer who is an employee under an employer‑employee agreement may refer to an Arbitrator where an Arbitrator is the relevant industrial authority under Part VID —

(a)any question, dispute or difficulty that an Arbitrator has jurisdiction to determine under section 97WI; and

(b)an allegation referred to in section 97WK(2).

[Section 80F inserted by No. 94 of 1984 s. 47; amended by No. 20 of 2002 s. 10.]

80G. Provisions of Part II Division 2 to apply

(1)Subject to this Division, the provisions of Part II Divisions 2 to 2G that apply to or in relation to the exercise of the jurisdiction of the Commission constituted by a commissioner shall apply with such modifications as are prescribed and such other modifications as may be necessary or appropriate, to the exercise by an Arbitrator of his jurisdiction under this Act.

(2)For the purposes of subsection (1), section 49 shall not apply to a decision of an Arbitrator on a claim mentioned in section 80E(2).

[Section 80G inserted by No. 94 of 1984 s. 47; amended by No. 20 of 2002 s. 121(4).]

80H. Public Service Appeal Board

(1)For the purpose of an appeal under section 80I there shall be established, within and as part of the Commission, a board to be known as a Public Service Appeal Board.

(2)A Board shall consist of 3 members.

(3)In the case of an appeal referred to in section 80I(1)(a), (b) or (c), the members of a Board shall be — 

(a)the President, who shall be the chairman;

(b)an employer’s representative appointed by the employer of the appellant; and

(c)an employee’s representative appointed by the relevant organisation.

(4)In the case of an appeal referred to in section 80I(1)(d) or (e), the members of a Board shall be — 

(a)a public service arbitrator, who shall be the chairman;

(b)an employer’s representative appointed by the employer of the appellant; and

(c)an employee’s representative appointed by the relevant organisation.

(5)In subsections (3) and (4) relevant organisation means the Association unless the appellant is a member of another organisation in which case it means that organisation.

(6)In this section and section 80J organisation means an organisation of employees registered under Division 4 of Part II, an association of employees registered as an organisation pursuant to the provisions of the Commonwealth Act or, in the case of an appeal by a medical practitioner employed in a public hospital, the Western Australian Branch of the Australian Medical Association Incorporated.

(7)In subsection (4) public service arbitrator means a commissioner who is, for the time being, a public service arbitrator appointed under section 80D.

[Section 80H inserted by No. 94 of 1984 s. 47; amended by No 32 of 1994 s. 14; No. 79 of 1995 s. 67(2).]

80I. Appeals

(1)Subject to section 52 of the Public Sector Management Act 1994 and subsection (3) of this section, a Board has jurisdiction to hear and determine — 

(a)an appeal by any public service officer against any decision of an employing authority in relation to an interpretation of any provision of the Public Sector Management Act 1994, and any provision of the regulations made under that Act, concerning the conditions of service (other than salaries and allowances) of public service officers;

(b)an appeal by a government officer, who is the holder of an office included in the Special Division of the Public Service for the purposes of section 6(1) of the Salaries and Allowances Act 1975, under section 78 of the Public Sector Management Act 1994 against a decision or finding referred to in subsection (1)(b) of that section;

(c)an appeal, other than an appeal under section 78(1) of the Public Sector Management Act 1994, by any government officer who occupies a position that carries a salary not lower than the prescribed salary from a decision, determination or recommendation of the employer of that government officer that the government officer be dismissed;

(d)an appeal by a government officer, other than a person referred to in paragraph (b), under section 78 of the Public Sector Management Act 1994 against a decision or finding referred to in subsection (1)(b) of that section;

(e)an appeal, other than an appeal under section 78(1) of the Public Sector Management Act 1994, by any government officer who occupies a position that carries a salary lower than the prescribed salary from a decision, determination or recommendation of the employer of that government officer that the government officer be dismissed,

and to adjust all such matters as are referred to in paragraphs (a), (b), (c), (d) and (e).

(2)In subsection (1) prescribed salary means the lowest salary for the time being payable in respect of a position included in the Special Division of the Public Service for the purposes of section 6(1) of the Salaries and Allowances Act 1975.

(3)A Board does not have jurisdiction to hear and determine an appeal by a government officer from a decision made under regulations referred to in section 94 of the Public Sector Management Act 1994.

[Section 80I inserted by No. 94 of 1984 s. 47; amended by No. 32 of 1994 s. 14; No. 1 of 1995 s. 29; No. 39 of 2010 s. 109.]

80J. Institution of appeals

An appeal under section 80I — 

(a)shall be instituted in the prescribed manner and within the prescribed time;

(b)may be instituted by the public service officer or other government officer concerned or by an organisation on his behalf.

[Section 80J inserted by No. 94 of 1984 s. 47; amended by No. 32 of 1994 s. 14.]

80K.Proceedings of Boards

(1)For the purposes of exercising its jurisdiction a Board may sit at any time and place appointed by the chairman of the Board and may adjourn to any time and place appointed by him.

(2)The decision of a Board shall be given in writing and shall be signed and delivered by the chairman of the Board.

(3)The jurisdiction of a Board shall be exercised by all the members sitting together and when the members are divided in opinion on a question, the question shall be decided according to the decision of the majority of the members.

(4)To the extent to which it is not prescribed a Board may regulate its own procedure.

[Section 80K inserted by No. 94 of 1984 s. 47.]

80L. Certain provisions of Part II Division 2 to apply

(1)Subject to this Division the provisions of sections 22B, 26(1) and (3), 27, 28, 31(1), (2), (3), (5) and (6), 34(3) and (4) and 36 that apply to and in relation to the exercise of the jurisdiction under this Act of the Commission constituted by a commissioner shall apply, with such modifications as are prescribed and such other modifications as may be necessary, to the exercise by a Board of its jurisdiction under this Act.

(2)For the purposes of subsection (1) section 31(1) shall apply as if paragraph (c) were deleted and the following paragraph were substituted — 

(c)by a legal practitioner.

”.

[Section 80L inserted by No. 94 of 1984 s. 47; amended by No. 20 of 2002 s. 153.]

Division 3 — Railways Classification Board

[Heading inserted by No. 94 of 1984 s. 47.]

80M. Terms used

(1)In this Division unless the contrary intention appears — 

Board means the Commission constituted by the Railways Classification Board established under this Division;

head of branch means an officer in control of one of the recognised divisions of the staff of the Public Transport Authority who receives his instructions from and communicates with the Public Transport Authority directly;

member means any member of the Board and includes the chairman;

Public Transport Authority means the Public Transport Authority of Western Australia established by the Public Transport Authority Act 2003 section 5;

railway officer means any specified award employee (as defined in the Government Railways Act 1904 section 73) — 

(a)holding or acting in a salaried position; or

(b)receiving a daily rate of pay as a temporary clerk in the service of the Public Transport Authority;

salaried position means a position in the service of the Public Transport Authority to which an annual salary is assigned but does not include — 

(a)the position of head of branch or sub‑head of branch; or

(b)a position held by a person engaged in a professional capacity;

sub‑head of branch means an officer in control of some recognised section of a division of the staff of the Public Transport Authority who receives his instructions from and communicates with the head of the branch directly;

transport Minister means the Minister responsible for the administration of the Public Transport Authority Act 2003;

Union means the body known as the West Australian Railway Officers Union.

(2)Subject to this Division, the Union shall be deemed to be, and shall have and enjoy all of the rights, privileges and duties of, an organisation registered under this Act.

(3)Forthwith after the coming into operation of section 47 of the Acts Amendment and Repeal (Industrial Relations) Act (No. 2) 1984 1 the Union shall lodge with the Registrar a true copy of its constitution and rules as then in force, certified in writing under the hands of its President and Secretary, and thereafter those rules shall be deemed to be the registered rules of the Union and shall not be altered other than in accordance with this Act.

[Section 80M inserted by No. 94 of 1984 s. 47; amended by No. 31 of 2003 s. 147(2) and (5).]

80N. Railways Classification Board established

(1)There shall be established, within and as part of the Commission, a board to be known as the Railways Classification Board.

(2)Subject to this Act, the Board shall consist of 3 members, of whom — 

(a)one shall be appointed by the Chief Commissioner from amongst the other commissioners, after consultation with the transport Minister and the Union, and shall be chairman of the Board;

(b)one shall be a person nominated for appointment by the Public Transport Authority and appointed by the Governor; and

(c)one shall be a person nominated for appointment by the Union and appointed by the Governor.

(3)Whenever it is necessary for a person to be nominated for appointment to an office referred to in subsection (2)(b) or (c) the Minister shall, in writing, request the Public Transport Authority, or the Union, as the case requires, to submit to him, in writing, the name of a person willing to act as a member of the Board.

(4)Where a request under subsection (3) is made to the Union the Electoral Commissioner appointed under the Electoral Act 1907, or some other officer appointed by him in writing, shall conduct an election in the prescribed manner amongst the members of the Union for the purposes of determining the name of the person to be nominated by that body for appointment to the office of member, but if, for any reason, a person is not elected for nomination within the period prescribed in that behalf the Union may determine that name in accordance with its rules.

(5)Where the Public Transport Authority or the Union has been requested under subsection (3) to submit the name of a person to the Minister — 

(a)if such a name is submitted to the Minister within the prescribed period of the Public Transport Authority or the Union, as the case requires, receiving the request, the person whose name appears on the submission shall be appointed to the office of member; and

(b)if default is made within that time in submitting a name to the Minister, the Minister may nominate for appointment to the office of member such person as he thinks fit.

(6)A person who has been dismissed from the service of the Public Transport Authority for misconduct is not eligible for appointment as a member or the deputy of a member of the Board.

[Section 80N inserted by No. 94 of 1984 s. 47; amended by No. 31 of 2003 s. 147(3) and (5).]

80O.Terms of office etc.

(1)Subject to this Act — 

(a)a person appointed as chairman or as a member pursuant to section 80N(2)(b) shall hold office for such period, not exceeding 2 years as is specified in the instrument of his appointment and is eligible for reappointment;

(b)a person appointed as a member pursuant to section 80N(2)(c) shall hold office for a period of 2 years and is eligible for reappointment.

(2)The office of the chairman becomes vacant if — 

(a)he ceases to be a commissioner; or

(b)his appointment as a member of the Board is terminated pursuant to subsection (3).

(3)The Chief Commissioner may, after consultation with the Union, at any time terminate the appointment of the chairman as a member of the Board.

(4)The Governor may terminate the appointment of a member referred to in section 80N(2)(b) or (c) for inability, inefficiency or misbehaviour.

(5)The office of a member referred to in section 80N(2)(b) or (c) shall become vacant if — 

(a)in the case of a member referred to in section 80N(2)(b), the nomination of the Public Transport Authority of the member is withdrawn; or

(b)he resigns pursuant to subsection (6); or

(c)he is, according to the Interpretation Act 1984 section 13D, a bankrupt or a person whose affairs are under insolvency laws; or

(d)his appointment is terminated pursuant to subsection (4); or

(e)he is dismissed from the service of the Public Transport Authority for misconduct.

(6)A member referred to in section 80N(2)(b) or (c) may resign his office by written notice signed by him and addressed to the Minister and the resignation takes effect on the day on which it is received by the Minister or on such later day as is specified in the notice.

(7)The Chief Commissioner may, after consultation with the transport Minister and the Union, appoint a commissioner to be the deputy of the chairman and may at any time terminate that appointment.

(8)The Governor may — 

(a)appoint as deputy of a member, other than the chairman, a person who has been nominated in the manner in which the member was nominated; and

(b)terminate any appointment under paragraph (a) at any time.

(9)A person appointed pursuant to subsection (7) or (8) has all the functions, powers and duties of the member for whom he is the deputy, in his capacity as a member, in the event of — 

(a)that member being unable to attend to his duties under this Division, whether on account of illness or otherwise; or

(b)the office of that member being vacant.

[Section 80O inserted by No. 94 of 1984 s. 47; amended by No. 31 of 2003 s. 147(4) and (5); No. 18 of 2009 s. 45.]

80P. Continuation in office

(1)Notwithstanding the expiry of the period of appointment of a member or deputy of a member, the Chief Commissioner or the Governor, as the case may be, may continue him in office for such period as the Chief Commissioner or the Governor determines in order to enable the Board to complete all matters, proceedings or inquiries that it has entered upon while he was a member or deputy.

(2)The Chief Commissioner or the Governor, as the case may be, may from time to time extend a period determined by him under subsection (1), notwithstanding the expiry of that period, for such further period or periods as he thinks fit.

[Section 80P inserted by No. 94 of 1984 s. 47.]

80Q. Validity of acts of Board

An act, proceeding, decision or determination of the Board is not invalid by reason of any defect or irregularity in the election, nomination or appointment of any member or deputy of a member.

[Section 80Q inserted by No. 94 of 1984 s. 47.]

80R. Jurisdiction of Board

(1)Subject to Division 3 of Part II and subsections (2a) and (3), the Board has exclusive jurisdiction to enquire into and deal with any industrial matter relating to a railway officer, a group of railway officers or railway officers generally.

(2)Without limiting the generality of subsection (1), but subject to subsection (2a), the jurisdiction conferred by that subsection includes jurisdiction — 

(a)to classify all salaried positions;

(b)to create classes and to provide the minimum and maximum salaries of all salaried positions in any class;

(c)to prescribe the method by which railway officers shall be advanced from the minimum to the maximum of the salary assigned to their positions, or from class to class;

(d)to hear and determine any application by any railway officer or class of railway officers in respect of the classification, reclassification, or salary of that railway officer or class of railway officers, or his or their position or positions;

(e)to hear and determine any appeal by the Union in respect of the reclassification of a salaried position by the Public Transport Authority pursuant to section 80U(1); and

(f)to hear and determine any application by the Public Transport Authority in respect of the classification, reclassification or salary of any railway officer or class of railway officers or his or their position.

(2a)Where the Westrail Enterprise Bargaining Agreement provides that an industrial matter is to be included in an umbrella enterprise award established in accordance with that Agreement, that industrial matter — 

(a)is, for the purposes of enabling such an award to be made by the Commission, taken to be an industrial matter in respect of which the Board does not have jurisdiction; and

(b)ceases to be an industrial matter in respect of which the Board has jurisdiction upon the making by the Commission of such an award including that industrial matter.

(2b)In subsection (2a) Westrail Enterprise Bargaining Agreement means the Westrail Enterprise Bargaining Agreement 1992 registered by the Commission on 18 February 1993, as renewed from time to time, or any Agreement expressed to be made in substitution for that Agreement.

(2c)The Board also has the jurisdiction conferred on it as a relevant industrial authority by —

(a)Part VID Division 5 Subdivision 3;

(b)section 97WI; and