Commonwealth Consolidated Acts

INDUSTRIAL RELATIONS AND OTHER LEGISLATION AMENDMENT ACT 1995 - SCHEDULE 4

Section   6

1   After section 50D:

Insert:

50E   Referral of discriminatory determinations to the Defence Force Remuneration Tribunal

  (1)   A complaint in writing alleging that a person has done a discriminatory act under a determination may be lodged with the Commission by:

  (a)   a person aggrieved by the act, on that person ' s own behalf or on behalf of that person and one or more other persons aggrieved by the act; or

  (b)   2 or more persons aggrieved by that act, on their own behalf or on behalf of themselves and one or more other persons aggrieved by the act; or

  (c)   a person or persons who are in a class of persons aggrieved by the act, on behalf of all the persons in the class.

  (2)   If the Commission receives a complaint under this section, the Commission must notify the Commissioner accordingly.

  (3)   If it appears to the Commissioner that the act is a discriminatory act, the Commissioner must refer the determination to the Defence Force Remuneration Tribunal. However, the Commissioner need not refer the determination if the Commissioner is of the opinion that the complaint is frivolous, vexatious, misconceived or lacking in substance.

  (4)   If the Commissioner decides not to refer the determination, the Commissioner must give notice in writing of that decision to the complainant or each of the complainants, together with notice of the reasons for the decision and of the rights conferred by subsection (5).

  (5)   A complainant who receives a notice under subsection (4) may, within 21 days after receipt, give a notice in writing to the Commissioner requiring the Commissioner to refer the decision to the President.

  (6)   If the Commissioner receives a notice under subsection (5), the Commissioner must refer the decision to the President together with a report about the decision.

  (7)   If the Commissioner refers the determination to the Defence Force Remuneration Tribunal, the Commissioner must give notice in writing of the outcome of the referral to the complainant or each of the complainants.

  (8)   The Commissioner may obtain documents or information under section 54 for the purposes of this section.

  (9)   In this section:

"determination" means:

  (a)   a determination made after the commencement of this section by the Defence Force Remuneration Tribunal under section 58H of the Defence Act 1903 ; or

  (b)   a variation made after that commencement by that Tribunal to a determination made by it under that section before that commencement.

"discriminatory act under a determination" means an act that would be unlawful under Part II except for the fact that the act was done in direct compliance with a determination.

  (10)   For the purposes of the definition of discriminatory act under a determination in subsection (9), the fact that an act is done in direct compliance with the determination does not of itself mean that the act is reasonable.

50F   President may review a decision of the Commissioner not to refer a determination to the Defence Force Remuneration Tribunal

  (1)   This section applies if the Commissioner refers to the President under subsection 50E(6) a decision of the Commissioner not to refer a determination to the Defence Force Remuneration Tribunal.

  (2)   The President must review the Commissioner ' s decision and must decide either:

  (a)   to confirm the Commissioner ' s decision; or

  (b)   to set aside the Commissioner ' s decision and to direct the Commissioner to refer the determination in accordance with section 50E.

  (3)   Despite subsection (2), the President may refuse to review the Commissioner ' s decision unless the complainant gives the President such relevant information as the President requires.

  (4)   The President must give written notice of a decision of the President under subsection (2) to the complainant and to the Commissioner. The notice must set out the reasons for the decision .