Employee Relations Act 1992

No. 83 of 1992 TABLE OF PROVISIONS PART 1 PRELIMINARY MATTERS Section 1. Purposes 2. Commencement 3. Objects 4. Definitions 5. Governor in Council may declare body to be a public body 6. Act binds the Crown 7. Application of Act PART 2 EMPLOYMENT AGREEMENTS 8. Collective employment agreements / 9. Individual employment agreements 10. Employment agreements to be in writing 11. When an employment agreement ends 12. Changing employment agreements 13. Lodging employment agreements 14. The contents of employment agreements 15. Exemption from minimum terms and conditions for slow or infirm workers 16. Minimum terms and conditions do not apply to certain students 17. How employment agreements work 18. How employment agreements relate to awards 19. Breach of employment agreement PART 3 AWARDS 20. Form of award 21. Publ ication of award 22. Commencement and variation of awards 23. Application of awards 24. When an award ends 25. Contents of awards 26. No automatic flow on of terms of employment agreements 27. Award has no effect if inconsistent with this Act 28. Copy of award to be made available to employees 29. If meaning of award not clear 30. Award rate applies to award work 31. Award rates do not apply to spouse etc. of employer 32. Awards do not apply to people in sheltered workshops etc. 33. Exemption from awards for slow or infirm workers 1429

34. Awards do not apply to certain students 35. Award conditions apply to all people under 18 who do award work PART 4 INDUSTRIAL ACTION 36. Participation in industrial action 37. Industrial action and picketing legal remedies and immunity PART 5 PROVISIONS CONCERNING SPECIFIC INDUSTRIAL MATTERS Division 1 Harsh, Unjust or Unreasonable Dismissals 38. Right to contest harsh, unjust or unreasonable dismissal 39. Which employees can use this Division 40. Time in which application to be lodged 41. Procedure concerning applications 42. Orders Division 2 Records 43. Employment records 44. Offence to falsify records > \ Division 3 Pay 45. Employer must give employee pay slip 46. Employer must give employee employment details 47. Payment of employees 48. Pay must be paid in cash or other agreed way 49. Prohibition against payment in kind 50. Deductions from pay Division 4 Secret Ballots 51. Secret ballots may authorise industrial action 52. Offences in relation to ballot Division 5 Freedom of Association 53. Objects 54. Voluntary membership 55. Prohibition on preference and discrimination Division 6 Long Service Leave 56. Basic entitlement to long service leave 57. Additional entitlement to long service leave if employment stops after 15 years 58. Entitlement to long service leave if employment stops after 10 years 59. Definition of "employer" and "employee" 60. Meaning of "one employer" 61. Employer may apply to reverse the effect of section 60 (5) and (8) 62. Meaning of "continuous employment" 63. Whether interruptions are to be included in the period of employment 64. Meaning of "ordinary pay" 1430

65. Employees to whom this Division does not apply 66. When leave is to be taken 67. Leave period may be split 68. Payments while on leave 69. Pay increases while on leave 70. Whether holidays occurring during leave count 71. Leave in advance 72. What is to happen if employment ends before leave taken 73. What is to happen if the employee dies before leave is taken 74. Payments in lieu forbidden 75. Settlement of disputes concerning leave 76. Decision of Commission final 77. Procedure of the Commission 78. Offences concerning leave 79. Contracting out prohibited 80. Records 81. Money due to employee to be treated as arrears of pay PART 6 THE FRAMEWORK OF THE SYSTEM 82. The Employee Relations Commission 83. Functions of the Commission 84. Forms in which the Commission may sit 85. Form of Commission in Full Session 86. Panels 87. Appointment under disputes procedures 88. Commission Administration Office 89. Functions of the Commission Administration Office PART 7 COMMENCEMENT OF PROCEEDINGS 90. Who can apply to bring a matter or dispute before the Commission? 91. Application for award if there is no award 92. Proceedings before the Commission 93. President to decide how matter or dispute to be dealt with 94. Chief Commission Administration Officer must inform parties to dispute of proceedings 95. Rules 96. Regulations 97. Conflict between rules and regulations PART 8 POWERS OF THE COMMISSION 98. General powers of the Commission in industrial matters or disputes 99. Certain matters only to be dealt with by Commission in Full Session 100. Other general powers of the Commission 101. Commission in Full Session may direct an investigation 1431

PART 9 POWERS AND DUTIES OF THE PRESIDENT, THE CHIEF COMMISSION ADMINISTRATION OFFICER AND THE MINISTER 102. Commission business 103. General powers 104. Annual report Division 1 The President Division 2 The Chief Commission Administration Officer 105. Commission Administration Office business 106. General powers 107. General duty 108. Chief Commission Administration Officer is subject to the directions of the President 109. Annual report 110. Acting Chief Commission Administration Officer Division 3 The Minister 111. Power to intervene in any proceedings 112. Appearance by the Minister in proceedings 113. Power to refer matters to Commission or Chief Commission Administration Officer 114. Minister must send President's annual report to Parliament PART 10 COMPLEMENTARY INDUSTRIAL RELATIONS SYSTEM 115. Joint proceedings 116. President may nominate member to exercise federal powers 117. Reference of industrial matter to Federal Commission 118. Conference with other industrial authorities PART 11 HOW PROCEEDINGS ARE TO BE CONDUCTED Division 1 General 119. Commission to act fairly and without regard to technicalities 120. Conciliation must be tried before arbitration 121. Commission to take certain things into account 122. Commission to encourage dispute resolution procedures 123. Commission to have regard to compliance with dispute procedures 124. Disclosure of interest by members 125. Transfer of proceedings to Commission in Full Session 126. Proceedings to be public unless it is directed otherwise 127. Submissions to the Commission 128. Representation 129. Immunity of participants 130. Commission generally to be cost free jurisdiction 131. Contempt of Commission 132. Offence to disclose confidential information 1432

Division 2 Commission in Full Session 133. How result determined if opinion divided 134. Change of members during a hearing PART 12 RECOGNITION OF ASSOCIATIONS 135. Application for recognition 136. Grant of recognition 137. Revocation of recognition 138. Rights of recognised associations 139. Recognition of employers PART 13 APPEALS Division 1 Appeals to the Commission in Full Session 140. What can be appealed 141. Who can appeal 142. Time limit on appeals 143. Decisions and awards stayed pending outcome of appeal 144. Powers of the Commission on appeal Division 2 Referrals from the Commission 145. Referral of question of law to Full Court PART 14 INSPECTORS 146. Appointment 147. Certificate of appointment 148. Functions of inspectors 149. Powers of inspectors 150. Offences concerning inspectors 151. Employer must not prejudice workers for giving information 152. Inspectors are inspectors under other Acts also PART 15 PROSECUTIONS, EVIDENCE AND RECOVERY OF MONEY 153. Proceedings for offences to be brought in Industrial Division of the Magistrates' Court 154. Who can prosecute under this Act? 155. Judicial notice of signatures 156. Official awards and certificates are evidence 157. Proof of age 158. Conduct of agents imputed to corporations 159. Reverse onus of proof in certain cases 160. Recovery of money owed 161. Court may order payment of arrears on conviction 162. Recovery of unpaid superannuation PART 16 MISCELLANEOUS OFFENCES AND PROVISIONS 163. Awards and employment agreements must be complied with 1433

164. Attempting, aiding, inducing etc. offences 165. Offence to discriminate for industrial reasons 166. Interval for meals 167. Certain guarantees illegal 168. Supreme Court limitation of jurisdiction 169. Regulations PART 17 REGULATIONS PART 18 SAVINGS, TRANSITIONAL AND CONSEQUENTIAL PROVISIONS 170. Definitions 171. Proceedings 172. Awards, orders and certified agreements 173. Appeals 174. Power to resolve transitional difficulties 175. Personnel 176. Magistrates' Court proceedings 177. Transition from former Commission 178. Annual leave or maternity leave under former Act 179. Repeals 180. Amendments of House Contracts Guarantee Act 1987 181. Amendment of Magistrates' Court Act 1989 182. Amendment of Trade Unions Act 1958 183. Amendment of Legal Profession Practice Act 1958 184. Minor consequential amendments SCHEDULES SCHEDULE 1 MINIMUM TERMS AND CONDITIONS OF EMPLOYMENT PART 1 GENERAL 1. Minimum terms and conditions of employment PART 2 MATERNITY LEAVE 2. Nature of leave 3. Definitions 4. Eligibility for maternity leave 5. Certification 6. Notice requirements 7. Transfer to a safe job 8. Variation of period of maternity leave 9. Cancellation of maternity leave 10. Special maternity leave and sick leave 11. Maternity leave and other leave entitlements 12. Effect of maternity leave on employment 1434

13. Termination of employment 14. Return to work after maternity leave 15. Replacement employees PART 3 PATERNITY LEAVE 16. Nature of leave 17. Definitions 18. Eligibility for paternity leave 19. Certification 20. Notice requirements 21. Variation of period of paternity leave 22. Cancellation of paternity leave 23. Paternity leave and other leave entitlements 24. Effect of paternity leave on employment 25. Termination of employment 26. Return to work after paternity leave 27. Replacement employees PART 4 ADOPTION LEAVE 28. Nature of leave 29. Definitions 30. Eligibility for adoption leave 31. Certification 32. Notice requirements 33. Variation of period of adoption leave 34. Cancellation of adoption leave 35. Special leave 36. Adoption leave and other entitlements 37. Effect of adoption leave on employment 38. Termination of employment 39. Return to work after adoption leave 40. Replacement employees PART 5 PART-TIME EMPLOYMENT 41. Definitions 42. Entitlement 43. Return to former position 44. Effect of part-time employment on continuous service 45. Pro rata entitlements 46. Transitional arrangements annual leave 47. Transitional arrangements sick leave 48. Part-time employment agreement 49. Termination of employment 50. Extension of hours of work 51. Nature of part-time employment 52. Inconsistent award provisions 53. Replacement employees 1435

SCHEDULE 2 CODE OF PRACTICE FOR INDUSTRIAL ACTION SECRET BALLOTS SCHEDULE 3 APPOINTMENT AND CONDITIONS OF EMPLOYMENT OF MEMBERS OF THE COMMISSION 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. Qualifications needed for appointment Seniority of members Dual Federal and State appointments Tenure of members Members may work on a part-time basis Resignation of member Removal of member from office Outside employment of member Salary and allowance of members Application of State Superannuation Act 1988 Leave of absence of members Members must stay informed Oath of office Acting President Acting Members SCHEDULE 4 THE CHIEF COMMISSION ADMINISTRATION OFFICER Tenure of office Resignation Removal from office Salary, allowances and other conditions Outside employment Disclosure of interest Leave of absence Application of State Superannuation Act 1988 Right to return to public service Acting Chief Commission Administration Officer SCHEDULE 5 PROVISIONS DEEMED TO BE INCORPORATED INTO AWARDS UNDER SECTION 172 (5) 1. Stand-down of employees 2. Settlement of disputes SCHEDULE 6 CONSEQUENTIAL AMENDMENTS 1. Accident Compensation Act 1985 2. Appeal Costs Act 1964 1436

3. BLF (De-recognition) Act 1985 4. Construction Industry Long Service Leave Act 1983 5. Country Fire Authority Act 1958 6. Education Act 1958 7. Equal Opportunity Act 1984 8. Fundraising Appeals Act 1984 9. Health Services (Conciliation and Review) Act 1987 10. Intellectually Disabled Persons' Services Act 1986 11. Labour and Industry Act 1958 12. Market Court Act 1978 13. Mental Health Act 1986 14. Metropolitan Fire Brigades Act 1958 15. Occupational Health and Safety Act 1985 16. Pharmacists Act 1974 17. Police Regulation Act 1958 18. Post-Secondary Education Act 1978 19. Pre-school Teachers and Assistants (Leave) Act 1984 20. Shop Trading Act 1987 21. Teaching Service Act 1981 22. Vocational Education and Training Act 1990 1437

Victoria No. 83 of 1992 Employee Relations Act 1992 [Assented to 24 November 1992] The Parliament of Victoria enacts as follows: PART 1 PRELIMINARY MATTERS 1. Purposes 1 he purposes of this Act are (a) to make fresh provision with respect to the law relating to employee relations in Victoria; and (b) to repeal the Industrial Relations Act 1979 and the Hospitals Remuneration Tribunal Act 1978; and (c) to amend the Trade Unions Act 1958, the House Contracts Guarantee Act 1987 and the Magistrates' Court Act 1989. 1439

s.2 Act No. 8311992 2. Commencement (1) Section 1 and this section come into operation on the day on which this Act receives the Royal Assent. (2) The remaining provisions of this Act come into operation on a day or days to be proclaimed. 3. Objects The objects of this Act are (a) to promote efficient and productive industry in Victoria and an efficient labour market; (b) to establish an employee relations system for Victoria which facilitates the freedom of employers and employees to choose how they regulate their own affairs; (c) to facilitate the prevention and settlement of disputes between employees and employers and provide a framework which assists in the maintenance of sound relationships between employees and employers; (d) to promote industrial harmony and co-operation between employees and employers in Victoria; (e) to ensure that fundamental civil liberties are protected including freedom of association; (/) to provide a framework for the prevention and settlement of disputes and the orderly and fair handling of industrial matters in order to minimise disruption to the community; (g) to ensure that in the prevention and settlement of disputes and in the orderly and fair handling of industrial matters proper regard is had to the interests of the Victorian community as a whole and to the interests of the parties immediately concerned; (h) to facilitate the prompt settlement of industrial matters in a fair manner by agreement, 1440

Act No. 83/1992 s.4 conciliation, mediation and arbitration with the minimum of legal form and technicality; (i) to provide for the observance and enforcement of dispute settlement procedures, awards and employment agreements; (/) to enable the operations of the employee relations system in Victoria to complement the system established by the Industrial Relations Act 1988 of the Commonwealth. 4. Definitions In this Act "award" means any determination, order or decision of the Commission that it has put into writing and that it intends to be an award; "business day" means a day on which the Commission Administration Office is open to the public; "Chief Administrator" means the Secretary to the ' Department of Business and Employment; "Chief Commission Administration Officer" means the Chief Commission Administration Officer appointed under this Act; "Commission" means the Employee Relations Commission of Victoria; "employee" does not include any person engaged under a contract for services; "employer" includes any person employing an employee, including the Crown and a public body; "employment agreement" means an agreement entered into under Part 2; "Federal Commission" means the Australian Industrial Relations Commission; "industrial action" means 1441

Act No. 8311992 (a) a failure or refusal by an employee to attend for work (unless the failure is authorised by the employer); or (b) a failure or refusal by an employee to work or to work as directed by an employer or a ban, limitation or restriction on the performance of work; or (c) a failure or refusal by an employer to engage employees on work that they normally perform when those employees are ready and willing unconditionally to perform that work as directed when the failure or refusal is for the purpose of compelling any employees to accept terms of employment specified, or comply with demands made, by the employer but does not include any stoppage or cessation of work engaged in for the purpose of avoiding accident or injury; "industrial authority" means the Federal Commission and any other body authorised by a law of Victoria, the Commonwealth or any other State or a Territory to hear and determine industrial matters or disputes; "industrial dispute" means a dispute between (a) an employer and one or more employees; or (b) one or more recognised associations of employees and one or more employers or recognised associations of employers; or (c) 2 or more recognised associations of employees concerning, or arising from, anything to do with an industrial matter and includes a threatened, probable or impending dispute; "industrial matter" means anything which concerns, or arises from, the employment of a person and includes, without limiting the generality of this definition, anything to do with 1442

Act No. 8311992 s.4 (a) the days and hours of work; (b) pay, superannuation and reward; (c) the rights and duties of employers and employees; (d) the mode and conditions of work; (e) the employment or non-employment of people of any particular age; (/) the demarcation between the rights, status and functions of members of a particular recognised association of employees in relation to the members of other recognised associations of employees; (g) the demarcation of functions between particular employees, or classes of employee; (h) the duties of employers when introducing new technology to a workplace (including the notice to be given to employees if they are to be dismissed because of new technology); (i) retrenchments and redundancies, and the notice to be given if an employee is dismissed; (/*) the dismissal of employees; (k) questions of what is fair and right in relation to any industrial matter having regard to the people immediately concerned and of society as a whole; (/) the relations between employers and employees; "industry" means (a) any business, trade, manufacture, undertaking or calling of employers; or (b) an employer, a branch of an industry or a group of industries; "medical practitioner" means a legally qualified medical practitioner registered under the Medical Practitioners Act 1970; 1443

Act No. 83/1992 "other Act" includes an Act of the Commonwealth and of any State or Territory; "panel" means a panel created under section 86; "President" means the President of the Commission; "public body" includes (a) any body created by or under an Act; (b) any municipal council; (c) any body declared by Order of the Governor in Council under section 5 to be a public body; "recognised association" means an association of employers or employees recognised under Part 12 and includes an employer who, by virtue of section 139, has the same rights and responsibilities as a recognised association; "records" includes any registers, certificates, notices, pay sheets and other documents; "shop" means a building, structure, place or vehicle or any part of a building, structure, place or vehicle (a) in or at which goods are sold or exposed or offered for sale by retail on one or more occasions; or (b) in or at which the business of a hairdresser, shoe repairer, dry cleaner, tailor, dressmaker, photographer or undertaker is carried on; "trade union" means (a) a trade union within the meaning of the Trade Unions Act 1958; or (b) a recognised association and includes all of its officers and members; "workplace" includes, in relation to any group of employees working for an employer, any place at which the employees are required to report (whether in person, by telephone or by any other 1444

Act No. 8311992 s.5 means) for any purpose connected with the employer's business. 5. Governor in Council may declare body to be a public body The Governor in Council may, by Order published in the Government Gazette, declare any body to be a public body. 6. Act binds the Crown This Act binds the Crown in right of the State of Victoria, and also, so far as the legislative power of Parliament permits, the Crown in all its other capacities. 7. Application of Act (1) This Act applies to a person appointed under section 8, 8A, 103 or 118B of the Police Regulation Act 1958. (2) Despite anything to the contrary in this Act, the. Commission does not have power to hear and determine or otherwise deal with any question in an industrial dispute concerning the dismissal or dispensing with services or threatened dismissal or dispensing with services of a person referred to in sub-section (1). (3) A person or body, corporate or unincorporate, nominated by the Governor in Council as the employer of a person referred to in sub-section (1) must be taken to be that person's employer for the purposes of this Act. The nominated employer may nominate a representative who must be taken to be the employer's representative for the purposes of this Act. 1445

s.8 Act No. 8311992 PART 2 EMPLOYMENT AGREEMENTS 8. Collective employment agreements (1) An employer may enter into a collective employment agreement with any or all of the employees employed by the employer. (2) Two or more employers may enter into a collective employment agreement with any or all of the employees employed by them. (3) An employer may, in negotiating for a collective employment agreement, negotiate with (a) the employees themselves; or (b) if the employees so wish, any representative or committee of employees authorised by the employees to represent them. (4) New employees may be covered by a collective employment agreement applying to employees of an employer if the employer and the new employee so agree. 9. Individual employment agreements (1) An employee who is not covered by a collective employment agreement and his or her employer may enter into any individual employment agreement that they think fit. (2) An employee who is covered by a collective employment agreement and his or her employer may nevertheless negotiate terms and conditions of employment on an individual basis. Any terms and conditions of employment agreed between the employer and the employee that modify the collective employment agreement must be put in writing. In the case of any inconsistency between the collective employment agreement and an individual employment agreement, the individual agreement prevails. (3) An employer may, in negotiating for an individual employment agreement, negotiate with (a) the employee himself or herself; or 1446

Act No. 83/1992 s. 10 (b) if the employee so wishes, any representative authorised by the employee to represent him or her. 10. Employment agreements to be in writing (1) Every collective employment agreement must be in writing and must clearly state the parties to the agreement, including the employees or categories of employee covered by the agreement and be signed by or on behalf of those parties. An individual employment agreement must be in writing and be signed by or on behalf of the employer and the employee. I (2) Every employer bound by an employment agreement must, on being requested to do so by an employee also bound by it, give a copy of the agreement to that employee as soon as possible. 11. When an employment agreement ends (1) A collective employment agreement must specify the date on which it expires which must not be more than 5 years after the date on which it came into force. (2) Collective employment agreements cease to apply on their expiry. (3) If a collective employment agreement expires, each employee who continues to be employed by the employer and the employer are, unless the employer and the employee make a new agreement, bound by an individual employment agreement with the same terms and conditions as those that applied to the employee and the employer under the expired collective employment agreement. 12. Changing employment agreements The parties to a collective employment agreement may not vary any term of the agreement unless the variation is necessary to remove an ambiguity or uncertainty. 1447

s. 13 Employee Relations Act 1992 Act No. 83/1992 13. Lodging employment agreements (1) If a collective employment agreement is entered into, an employer bound by it must, within 14 days after the coming into force of the agreement, lodge a copy with the Chief Commission Administration Officer. (2) In July of each year every employer in Victoria must notify the Chief Commission Administration Officer of the number of individual employment agreements by which they are bound as at 30 June of the relevant year. (3) The information contained in a copy of an agreement lodged with the Chief Commission Administration Officer under sub-section (1) is only available to the parties to the agreement or a person with authority to enforce the provisions of the agreement on behalf of a party to it. 14. The contents of employment agreements (1) Employment agreements may contain provisions concerning some or all of the terms and conditions of employment. (2) The minimum terms and conditions of employment for employees who are parties to employment agreements are those contained in Schedule 1. (3) A provision of an employment agreement is of no effect to the extent that it provides a term or condition of employment that is less favourable to an employee than the minimum applicable under this section. (4) Employment agreements must contain provisions (a) that set out procedures to be followed to prevent or settle claims, disputes or grievances that arise during the currency of the agreement; (b) for the standing-down of employees who cannot be usefully employed because of any strike, breakdown of machinery or any stoppage of work for any cause for which the employer cannot reasonably be held responsible. 1448

Act No. 8311992 s. 15 (5) The standing down of an employee under a provision described in sub-section (4) (b) does not break the continuity of employment of the employee for the purpose of any entitlements. 15. Exemption from minimum terms and conditions for slow or infirm workers (1) An employer need not pay a person holding a certificate of exemption under this section the relevant minimum rate of pay applicable under clause 1 (c) of Schedule 1. (2) The Chief Commission Administration Officer may give a person a certificate of exemption if he or she is satisfied that because of the person's age, infirmity or slowness, the person is unable to obtain work at the relevant minimum rate applicable under clause 1 (c) of Schedule 1. (3) The Chief Commission Administration Officer must specify a minimum rate of pay in a certificate of exemption. (4) A certificate of exemption is valid for 12 months. (5) The Chief Commission Administration Officer may renew a certificate of exemption from time to time for a further 12 months. (6) If the Chief Commission Administration Officer refuses to grant or renew a certificate of exemption under this section, the person seeking the certificate may appeal to the Industrial Division of the Magistrates' Court. (7) An employer must not (a) directly or indirectly pay, or offer to pay, a person holding a certificate of exemption at a lower rate than the minimum rate specified in the certificate of exemption; or (b) employ, without the written consent of the Chief Commission Administration Officer, more than one person holding a certificate of exemption 1449

s.16 Employee Relations Act 1992 Act No: 8311992 under this section or section 33 unless the number of people holding such certificates employed does not exceed one-fifth of the total number of people employed by that employer. Penalty applying to this sub-section: 10 penalty units. 16. Minimum terms and conditions do not apply to certain students (1) An employer need not pay a student holding a certificate of exemption under this section the relevant minimum rate of pay applicable under clause 1 (c) of Schedule 1. (2) The Chief Commission Administration Officer may give a student a certificate of exemption if he or she is satisfied that the student (a) is undertaking a course in a post-secondary educational institution; and (b) is required to work during those studies for the purpose of gaining knowledge and skill which relates to those studies. (3) The Chief Commission Administration Officer may impose conditions on a certificate of exemption. (4) The student and any employer must comply with any conditions imposed. Penalty: 10 penalty units. 17. How employment agreements work Subject to section 14, once an employment agreement has been made (a) the provisions of the agreement have the same effect, and can be enforced in accordance with this Act in the same way, as an award; (b) the provisions of the agreement prevail over any provision of an award which is inconsistent with them and which purports to apply to a person bound by the agreement. 1450

Act No. 8311992 s. 18 18. How employment agreements relate to awards An employment agreement may provide that some or all of the provisions of an award shall not apply. 19. Breach of employment agreement (1) The Industrial Division of the Magistrates' Court has jurisdiction to hear and determine any cause of action for damages, or any claim for equitable relief, arising out of or related to a breach of an employment agreement, irrespective of the amount claimed or the value of the relief sought. (2) However, the Industrial Division of the Magistrates' Court must not, in any proceeding for breach of an employment agreement, award damages against any individual employee in excess of $5000. (3) Despite anything to the contrary in any Act, the jurisdiction of the Industrial Division of the Magistrates' Court in relation to any matter referred to in sub-section (1) is exclusive. PART 3 AWARDS 20. Form of award (1) An award must (a) be worded so as best to express the wishes of the parties or, in the case or arbitration, the decision of the Commission; and (b) avoid unnecessary technicality; and (c) be signed (i) if made by the Commission in Full Session, by the presiding member; or (ii) if made by a member of the Commission sitting alone, by that member; and (d) be dated with the date on which it was signed. 1451

s.21 Employee Relations Act 1992 Act No. 8311992 (2) The Commission must put every determination, order or decision that it makes, and that it intends to be an award, in writing as soon as possible. 21. Publication of award The Chief Commission Administration Officer must cause every award to be printed and published. 22. Commencement and variation of awards (1) An award must specify the date on which it is to come into force. (2) Unless the Commission is satisfied that there are exceptional circumstances, it may not specify a date earlier than the date of the award. (3) An award may only be varied during its currency if a variation is necessary to remove an ambiguity or uncertainty. 23. Application of awards The Commission may, with the consent of all employers and employees to whom the award is to apply, apply an award to an industry or a workplace. 24. When an award ends (1) An award must specify the date on which it expires which must not be more than 5 years after the date on which it came into force. (2) Awards cease to apply on their expiry. (3) If an award expires, each employee who continues to be employed by the employer and the employer are, unless a new award is made or the employee and the employer make an employment agreement, bound by an individual employment agreement with the same terms and conditions as those that applied to the employee and the employer under the expired award. 1452

25. Contents of awards Employee Relations Act 1992 Act No. 8311992 s.25 (1) Awards must contain provisions (a) that set out procedures to be followed to prevent or settle claims, disputes or grievances that arise during the currency of the award; (b) for the standing-down of employees who cannot be usefully employed because of any strike, breakdown of machinery or any stoppage of work for any cause for which the employer cannot reasonably be held responsible. (2) The standing down of an employee under a provision described in sub-section (1) (b) does not break the continuity of employment of the employee for the purpose of any entitlements. (3) An award made after the commencement of this sub-section must not contain a provision which limits the working of ordinary hours to specified days of the week or provides for additional payments for ordinary hours worked on specified days of the week. An award made after that commencement may, however, limit the working of ordinary hours to an average of five days per week over the period of a roster cycle or require additional payments for work performed on public holidays. (4) The minimum terms and conditions of employment that may be included in an award are those contained in Schedule 1. (5) A provision of an award is of no effect to the extent that it provides a term or condition of employment that is less favourable to an employee than the minimum applicable under sub-section (4). 26. No automatic flow on of terms of employment agreements The Commission may only include in an award provisions based on those of an employment agreement if it is satisfied that the inclusion 1453

s.27 Act No. 8311992 (a) is consistent with any general principles established by the Commission in Full Session; and (b) is not contrary to the public interest. 27. Award has no effect if inconsistent with this Act (1) If anything in an award is inconsistent with anything in this Act, or in any regulation or rule made under this Act, the part of the award that is inconsistent is of no effect. (2) If the inconsistency arises at any time after the making of the award, the part of the award that is inconsistent only ceases to have effect when the inconsistency arose. 28. Copy of award to be made available to employees An employer who employs a person to whom an award applies must keep a copy of the award and make it available for inspection by that person on demand. Penalty: 10 penalty units. 29. If meaning of award not clear (1) The Commission may declare the meaning or effect of any award, or of any provision of an award, on an application made by a person or body bound by the award. (2) A declaration is binding on all persons and bodies bound by the award. 30. Award rate applies to award work If a person (a) does work which is covered by an award for an employer for more than half the ordinary working hours of a day; and (6) does other work which is not covered by an award for that employer on that day the employer must pay the person for work done under an award on that day at a rate not less than the rate fixed by the award. Penalty: 10 penalty units. 1454

Act No. 8311992 s.31 31. Award rates do not apply to spouse etc. of employer An employer who employs his or her spouse, de facto spouse, son or daughter in his or her business need not pay the spouse, son or daughter the rate of pay fixed by any relevant award. 32. Awards do not apply to people in sheltered workshops etc. (1) In this section "institution" means an institution conducted for religious or charitable purposes; "person with a disability" means a person who is unable to obtain a job in industry in open competition owing to a mental or physical disability; "sheltered workshop" means a workshop or similar premises which is conducted to enable people with disabilities to work for their own benefit, whether or not the workshop or premises is run for profit. (2) An employer who employs (a) a person who is confined to an institution to do work in the institution; or (b) a person with a disability to do work in a sheltered workshop need not comply with any relevant award with respect to the employment. (3) The occupier of any place where work is done which is similar to that done by people working in an institution or sheltered workshop may apply to the Commission for an order under sub-section (4). (4) If the Commission is satisfied that an institution or sheltered workshop is unfairly competing with an occupier who has applied for an order, the Commission may order that sub-section (2) is not to apply to an 1455

s.33 Act No. 8311992 employer in respect of a person, or a group or a class of people, employed at the institution or sheltered workshop. (5) An order (a) is to take effect on a day fixed by the Commission in the order; and (b) may specify which award the employer must comply with; and (c) lasts until it is revoked by the Commission. (6) A person may apply to the Commission to have an order revoked. (7) The Commission may revoke an order if it is satisfied (a) that there has been a change in circumstance since the order was made; and (b) that the revocation will not be contrary to the public interest. 33. Exemption from awards for slow or infirm workers (1) An employer need not pay a person holding a certificate of exemption under this section the rate of pay fixed by any relevant award. (2) The Chief Commission Administration Officer may give a person a certificate of exemption if he or she is satisfied that because of the person's age, infirmity or slowness, the person is unable to obtain work at the rate of pay fixed by any relevant award. (3) The Chief Commission Administration Officer must specify a minimum rate of pay in a certificate of exemption. (4) A certificate of exemption is valid for 12 months. (5) The Chief Commission Administration Officer may renew a certificate of exemption from time to time for a further 12 months. (6) If the Chief Commission Administration Officer refuses to grant or renew a certificate of exemption 1456

Act No. 83/1992 s.34 under this section, the person seeking the certificate may appeal to the Industrial Division of the Magistrates' Court. (7) An employer must not (a) directly or indirectly pay, or offer to pay, a person holding a certificate of exemption at a lower rate than the minimum rate specified in the certificate of exemption; or (b) employ, without the written consent of the Chief Commission Administration Officer, more than one person holding a certificate of exemption under this section or section 15 unless the number of people holding such certificates employed does not exceed one-fifth of the total number of people employed by that employer. Penalty applying to this sub-section: 10 penalty units. 34. Awards do not apply to certain students (1) An employer need not pay a student holding a certificate of exemption under this section the rate of pay fixed by any relevant award. (2) The Chief Commission Administration Officer may give a student a certificate of exemption if he or she is satisfied that the student (a) is undertaking a full day course in a postsecondary educational institution; and (b) is required to work during those studies for the purpose of gaining knowledge and skill which relates to those studies. (3) The Chief Commission Administration Officer may impose conditions on a certificate of exemption. (4) The student and any employer must comply with any conditions imposed. Penalty: 10 penalty units. 922805 17 1457

s.35 Act No. 83/1992 35. Award conditions apply to all people under 18 who do award work A person who secures the services of a person who is under the age of 18 years to do any work to which an award applies must ensure that the person receives the relevant pay and conditions set out in the award with respect to the work. Penalty: 10 penalty units. PART 4 INDUSTRIAL ACTION 36. Participation in industrial action (1) Participation in industrial action is unlawful if any of the following apply to it: (a) It occurs while a relevant award or collective employment agreement is in force; or (Z?) It relates to a claim, dispute or grievance for the settlement of which there is a procedure set out in a relevant award or employment agreement which has not been followed or it relates to a claim, dispute or grievance which is capable of being, but has not been made, the subject-matter of a complaint under the Equal Opportunity Act 1984; or (c) It relates to any of the matters dealt with in Division 5 of Part 5 (Freedom of Association); or (d) It is concerned with the issue of whether any of the contents of a collective employment agreement should be adopted by another employer; or (e) It occurs in an industry that provides an essential service as defined in the Essential Services Act 1958 or that is a vital industry as defined in the Vital State Industries (Works and Services) Act 1992; or (/) It takes place or continues in contravention of a recommendation or order of the Commission; or 1458

Act No. 8311992 s.37 (g) It takes place without a secret ballot having been conducted in accordance with Schedule 2 or is not authorised by any ballot that has been conducted; or (h) It is engaged in for the purpose of causing loss or damage to the business of an employer other than the employer of the employees engaged in the action. (2) A person must not participate in unlawful industrial action. Penalty: In the case of an individual 10 penalty units. In any other case 500 penalty units. (3) Participation in industrial action by employees to whom a federal award applies is not unlawful under sub-section (1) if it arises out of or is related to a claim, dispute or grievance under, or in connection with, that award. (4) Participation in industrial action is not unlawful if (a) it is not unlawful under sub-section (1); and (b) it relates to the negotiation of an award or collective employment agreement for the participants. 37. Industrial action and picketing legal remedies and immunity (1) The Industrial Division of the Magistrates' Court has jurisdiction to hear and determine any cause of action for damages, or any claim for equitable relief, arising out of or related to an unlawful industrial action, irrespective of the amount claimed or the value of the relief sought. (2) Despite anything to the contrary in any Act, the jurisdiction of the Industrial Division of the Magistrates' Court in relation to any matter referred to in sub-section (1) is exclusive. (3) Industrial action that is not unlawful does not give rise to any cause of action founded on the torts of conspiracy, intimidation, inducement of breach of contract or interference by unlawful means with trade, 1459

s.38 Act No. 8311992 business or employment. However, this does not prevent a cause of action founded on any of those torts arising out of picketing activities. (4) Nothing in this section deprives a person of any right that the person has under the Magistrates' Court Act 1989 to appeal to the Supreme Court, on a question of law, from a final order of the Industrial Division of the Magistrates' Court. (5) Despite anything to the contrary in the Courts (Case Transfer) Act 1991, a proceeding of a kind referred to in sub-section (1) cannot be transferred to another court under that Act. PART 5 PROVISIONS CONCERNING SPECIFIC INDUSTRIAL MATTERS Division 1 Harsh, Unjust or Unreasonable Dismissals 38. Right to contest harsh, unjust or unreasonable dismissal (1) If an employer dismisses, or threatens to dismiss, an employee and the employee believes that the dismissal, or threatened dismissal, is harsh, unjust or unreasonable, the employee may apply for an order under this Division. (2) A recognised association of employees may also apply for an order on behalf of an employee who is, or a group or class of employees who are, eligible to apply for an order. 39. Which employees can use this Division (1) An employee may only apply for an order if he or she is engaged in a classification of work which was governed by an award at the commencement of this Division. (2) However, the employee may not apply for an order if, in respect of the dismissal or threatened dismissal, he or she 1460

Act No. 8311992 s.40 (a) has a right of appeal or review under any contract; or (b) has a right of appeal or review under the Public Service Act 1974, the Police Regulation Act 1958 or the Teaching Service Act 1981 or any other Act; or (c) has not been continuously employed by the employer for at least 6 months, whether on a full-time, part-time or casual basis. (3) Also, an employee who is a trainee within the meaning of the Vocational Education and Training Act 1990 may not apply for an order. (4) An employee is not prevented from applying for an order only because he or she is a party to an employment agreement. 40. Time in which application to be lodged An application for an order may be lodged with the Commission at any time before an employee is dismissed up until 10 business days after a dismissal. 41. Procedure concerning applications (1) An application for an order must be in writing and must be accompanied by a filing fee of $50.00. (2) An application can only be referred to the Commission if the Chief Commission Administration Officer, after hearing submissions on behalf of the employee and the employer, is satisfied that (a) the employee has made out a prima facie case; and (b) the employee, or a recognised association on behalf of the employee, has tried to resolve the matter directly with the employer or the employer's recognised association. (3) The President must ensure that the Commission hears an application as soon as possible after its referral to it by the Chief Commission Administration Officer. 1461

s.42 Employee Relations Act 1992 Act No. 83/1992 (4) Nothing in sub-section (1) or (2) applies to an application for an order under section 46 of the Industrial Relations Act 1979 that was lodged before the commencement of this Division. 42. Orders (1) If the Commission is satisfied that the dismissal, or the threatened dismissal, of an employee is harsh, unjust or unreasonable, the Commission may (as the case requires) order the employer (a) to re-employ the employee in his or her former position on terms that are not less favourable to the employee than if the employee had not been dismissed; or (b) not to dismiss the employee. (2) If the Commission makes an order for re-employment, it may order the employer to pay the employee an amount not exceeding the amount of pay that the employee would have received if he or she had not been dismissed less any earnings of the employee in the intervening period or any benefit, pension or allowance paid to him or her during that period, as a result of the dismissal, under the Social Security Act 1991 of the Commonwealth. (3) Despite anything to the contrary in this Act, the powers set out in sub-sections (1) and (2) are the only powers the Commission may exercise with respect to a harsh, unjust or unreasonable dismissal or threatened dismissal. 43. Employment records Division 2 Records (1) An employer who employs an employee to whom an award or employment agreement applies must keep records of (a) the employee's name, classification, the applicable award or employment agreement and the pay received by the employee; 1462

Act No. 8311992 s.44 (b) the employee's age, if he or she is under 21 years of age; (c) all deductions made from the employee's pay and the reasons for each deduction; (d) the employee's daily starting and finishing times; (e) any leave taken by the employee (whether paid, partly paid or unpaid); (/) any superannuation contributions made by or on behalf of the employee; (g) anything else that the employer is required to keep by the regulations. (2) A record must be kept in the form (if any) set out in the regulations. (3) The employer must retain a record for 7 years after the last entry in it was made. Penalty: 10 penalty units. 44. Offence to falsify records (1) A person must not make, or make use of, any false or misleading entry in any record required to be kept under this Act if the person knows that the entry is false or misleading. (2) A person must not make a material deletion from any record required to be kept under this Act. Penalty: 10 penalty units. Division 3 Pay 45. Employer must give employee pay slip At the time of giving an employee his or her pay, an employer must also give the employee written details of (a) the date of payment; (b) the period covered by the payment; 1463

s.46 Employee Relations Act 1992 Act No. 83/1992 (c) the number of hours or days worked by the employee during that period; (d) all deductions made from the employee's gross pay; (e) any superannuation contributions made on the employee's behalf; (/) the employee's gross pay and the amount actually paid to the employee; (g) how the amount paid is made up. Penalty: 10 penalty units. 46. Employer must give employee employment details (1) An employer must give an employee a copy of any record kept by the employer in respect of the employee under this Act if the employee asks for the copy. Penalty: 10 penalty units. (2) It is sufficient compliance with this section if the employer allows the employee to inspect and copy the record. 47. Payment of employees (1) An employer must pay an employee everything that the employee is entitled to. (2) An employer must pay an employee the amount that the employee is entitled to at least (a) once in every fortnight if the employee is covered by an award or employment agreement which does not state how often the employee is to be paid; (b) once in every month if the employee is not covered by an award or employment agreement. 48. Pay must be paid in cash or other agreed way An employer must pay an employee (a) in cash; or 1464

Act No. 8311992 s.49 (b) with the written authority of the employee (i) by cheque, postal order or money order payable to the employee; or (ii) by deposit into a bank, building society or credit union account specified in the authority; or (c) in any other manner required or permitted by the relevant award or employment agreement. Penalty: 10 penalty units. 49. Prohibition against payment in kind (1) An employer must, subject to this Division, pay an employee in full in money. (2) An employer must not directly or indirectly require or compel an employee to accept goods of any kind or accommodation as payment for any work done by the employee, unless this is authorised or required by the relevant award or employment agreement. (3) For the purposes of this Act, anything given to an employee contrary to sub-section (2) is to be treated as if it had never been given. Penalty: 10 penalty units. 50. Deductions from pay (1) An employer may deduct from an employee's pay (a) any amount that the employee authorises, in writing, the employer to deduct; and (b) any amount that the employer is authorised or required to deduct by this or any other Act, or by any award or employment agreement. (2) Any amount deducted must be paid by the employer on the employee's behalf in accordance with the employee's instructions or in accordance with the requirements of this Act, the other Act or the award or employment agreement (as the case may be). Penalty: 10 penalty units. 1465