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INDUSTRIAL RELATIONS
AMENDMENT BILL 1992
EXPLANATORY NOTES
The principal objectives of this Bill are--
· provide legislative arrangements that will encourage and facilitate
enterprise bargaining agreements. There is to be scope for extensive
flexibility and productivity improvement in our environment of fair
treatment of employees and regard for the public interest.
· provide legislative arrangements that will encourage and ease the
process of effective amalgamation of industrial organisations.
· assist in rationalisation of coverage of industrial organisations by
reducing the number operating in an industry or enterprise.
· contribute to the democratic operation of industrial organisations by
providing that elections for office holders are to be conducted by an
independent authority.
· make a number of changes that will improve the conditions of
individuals receiving rights under the principal act.
Clause 1--Short Title. This proposed section provides a short title of the
Act.
Clause 2--Commencement. This proposed section provides that the date
of commencement for various sections of this Act will be fixed by
proclamation and permits different sections to apply from different
proclamation dates.
Clause 3--Amended Act. Names the existing Act affected by the
provisions of the amending legislation.
Clause 4--Amendment of s.1.3 (Objects). The Act is amended to
provide two new objects of the Act to make it explicit that amalgamations
of industrial organisations are to be encouraged as is the reduction of the
number of industrial organisations operating in an industry or enterprise.
Clause 5--Omission of ss.1.4 and 1.5. This amendment omits sections
1.4 (Repeals) and 1.5 (Savings). These are provided later in a new Part
19A.
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Clause 6--Amendment of s.2.1 (Meaning of terms). This amendment
adjusts definitions to reflect amendments to the Act.
Clause 7--Replacement of s.4.25 (Dealing with demarcation disputes)
Proposed Section 4.25--Demarcation disputes
This section provides for certain requirements to be placed on the
Industrial Commission when it is exercising powers in relation to a
demarcation dispute.
Proposed Section 4.25A--Organisation coverage
This section empowers the Full Bench, on the application of an industrial
organisation, employer or the Minister to make an order--
· to give an industrial organisation of employees exclusive right of
coverage for a particular class of employees who are eligible for
membership;
· that an industrial organisation of employees does not have the right to
represent a particular class of employees;
· that an industrial organisation of employees does not have the right to
represent a class of employees who are eligible for membership.
In considering such an order the Full Bench must consider whether to
consult with an appropriate peak council or any industrial organisation.
If the Full Bench decides to consult it is to inform the parties of the views
expressed. The Full Bench is also to take into account any agreement which
may be in place.
If the order requires the rules of the industrial organisation to be changed
the Full Bench is to refer the matter to a nominated Commissioner who
after hearing the parties may determine the alteration to the rules.
The context of the existing legislation is varied to make it mandatory for
the Full Bench to consider consultation and where it does consult to inform
the parties of those views.
Clause 8--Amendment of s.5.4 (Power of Industrial Magistrate
concerning unpaid superannuation contribution). The amendment provides
for unpaid occupational superannuation contributions ordered by an
Industrial Magistrate to be paid to--
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· an employee who is no longer employed by the employer, or
· a superannuation scheme or fund nominated by the employee (where
the amount involved is more than $500)
to be paid into the Unclaimed Moneys Fund in the Treasury in
circumstances where--
· the employee cannot be located, or
· the employee fails to nominate a scheme or fund into which the
amount due can be paid.
Clause 9--Amendment of s.8.6 (Powers incidental to exercise of
jurisdiction). The amendment provides that the Industrial Court, Industrial
Commission and the Industrial Registrar, in circumstances where a person
(other than the Minister or the Crown) wishes to intervene in a matter, may
determine whether that person is to be heard and if allowed to be heard, on
what conditions.
Clause 10--Amendment of s.8.17 (Representation of parties). The
amendment provides that persons can be represented by legal practitioners
as a right in proceedings in the Industrial Court involving prosecution of an
offence under any Act that gives the Industrial Court jurisdiction to deal
with the matter.
Clause 11--Amendment of s.8.19 (Intervention). The amendment alters
the head note to the existing section for clarification that intervention by--
· the Crown
· the Minister
in proceedings in the Industrial Court, the Industrial Commission, an
Industrial Magistrate's Court, or before the Industrial Registrar is as of right
and not subject to determination as provided in the amendment to s.8.6.
Clause 12--New Division 1A in Part 10
Division 1A--Certified agreements
The amendment inserts a new Division containing sections dealing with
certified agreements.
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Proposed Section 10.3A (Objects of Division)
Subsection (1) (Objects of Division) sets out objects for the new
Division. Essentially the objects of the Division are to encourage the
making and certifying of agreements that will facilitate labour market
reform by encouraging--
· the setting up of single bargaining units, and
· workplace bargaining that is directed at increased productivity.
In addition it is contended that the agreements will foster the achievement
in the workplace of--
· best practice,
· increased work satisfaction, and
· greater career opportunities.
It is intended that these new objects will provide guidance to the
Queensland Industrial Relations Commission in the performance of its
functions under the Division.
Under subsection (2), the Industrial Commission must perform those
functions in a way which furthers the objects of the Act and, in particular,
the objects of the Division.
Subsection (3) provides that section 4.27 is not to apply to the
performance of functions of the Industrial Commission under this Division.
(Section 4.27 sets out the process by which a matter before an Industrial
Commissioner may be referred to a Full Bench of the Commission).
Proposed Section 10.3B--Definitions
This section defines three additional terms for this Division.
"Party" to an agreement includes an employer who is a successor,
assignee or transmittee (whether immediate or not) to or of the whole
or part of the business of a party, including a corporation that has
acquired or taken over the whole or part of the business of the party.
The definition of party includes the successor, assignee or transmittee of
the business of a party, including a corporation. (For instance this will mean
that a person or Corporation taking over a business that is a party to an
agreement under this Division becomes the party to the agreement.)
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"Period of the agreement" means the period of operation of the agreement
specified in the agreement, or that period as extended or further
extended under section 10.3K.
"Single business" is defined as a business carried on by a single employer
and also includes a joint venture, common enterprise or single project.
An activity undertaken by the State or body established by State law
for a public purpose or other body in which the State has a controlling
interest falls within the definition.
A corporation that is an employer and its wholly owned subsidiaries can
be treated as a "single employer" carrying on a "single business" for the
purpose of entering into a certified aggreement.
Proposed Section 10.3C--Agreements may be made about industrial
matters
Subsection (1) allows an employer or an industrial organisation of
employers and an industrial organisation of employees to make a
memorandum of agreement about an industrial matter. The term "industrial
matter" is defined at section 2.2 of the Act and includes such issues as the
privileges, rights or duties of employers and employees; occupational
superannuation, wages and other conditions of employment. This ensures
that any certified agreement must have at least one industrial organisation of
employees as a party.
Subsection (2) requires the parties to an agreement which is
contemplated by subsection (1) to apply to the Industrial Commission to
certify the agreement.
Proposed Section 10.3D--Minister may intervene in certain cases
Subsection (1) provides that the Minister may intervene in an application
for a certified agreement where that agreement applies only to a single
business, part of a single business or single place of work, on the ground
that certification of the agreement may jeopardise seriously the public
interest.
Subsection (2) requires that intervention is to be made by giving written
notice to the Industrial Registrar.
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Subsection (3) provides that this section does not limit the operation of
section 8.19 (Intervention of the Crown) or section 8.6 (Powers incidental
to exercise of jurisdiction).
Subsection (4) provides for this section to cease to have effect at the end
of 18 months after the commencement of the section.
The Minister's right of intervention under this section is intended to exist
for a limited period while the operation of the new provisions becomes
established. Accordingly, the provision ceases to operate 18 months after
the commencement of the section.
Section 8.19(2) of the Act provides that the Minister may intervene, in
the public interest, at any stage in any proceedings before the Industrial
Court, the Industrial Commission, an Industrial magistrates Court, or the
Industrial Registrar. Upon intervention the Minister becomes a party to the
proceedings.
Proposed Section 10.3E--Certification of agreements under this
Division
Subsection (1) requires the Industrial Commission to certify a
memorandum of agreement if an application is made under section
10.3(C)2 and certain criteria are met (and prevents the Industrial
Commission from certifying an agreement unless they are met), subject to
certain exceptions.
The criteria, which are cumulative, are specified in subsection (1).
An agreement must be certified if the Industrial Commission is satisfied
that:
· the agreement does not disadvantage the employees who are covered
by the agreement (paragraph (1)(a)).
(Certain matters to be considered in deciding whether an agreement
disadvantages employees are stipulated in subsection (2).)
· it contains dispute settling procedures (paragraph 1(b)).
· before the application for certification was made, each organisation of
employees that is a party to the agreement took reasonable steps to
consult members whose employment is covered by the agreement
over its terms and to inform them of the organisation's intention to
apply for certification (paragraph (1)(c)).
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-- It is left for the organisation's internal processes to provide for any
system of approval.
-- Reference should be made to subsection (3) which provides for an
exception to the consultation requirement.
-- The industrial organisation of employees must inform
the Industrial Commission whether or not it has
consulted its members and of the outcome of any such
consultations (paragraph (1)(d)).
· an additional criterion, paragraph 1(e), applies where an agreement
applies only to a single business, part of a single business or a single
place of work. Subject to subsections (4) and (5), the parties to the
agreement include--
-- (A) each industrial organisation of employees that is a party to an
award that binds an employer in respect of the work
performed in that business, part of a business or place of
work; or
-- (B) if there is no such award, an industrial organisation of
employees that is able to represent the industrial interests of
the employees who are covered by the agreement; and
· the agreement has been negotiated, on the one hand, by each employer
concerned or a representative of the employer, and, on the other hand,
by a single person or group of persons representing all the other parties
to the agreement.
(This provision ensures that employee organisations parties to the
agreement must be represented by a single bargaining unit--paragraph
(1)(e)(ii).)
· the agreement specifies the period of operation of the agreement
(paragraph (1)(f)).
Subsection (2) provides guidance to the Industrial Commission on how
to determine whether an agreement disadvantages employees. Under the
subsection, the Industrial Commission is required to decide whether
certification of the agreement would result in the reduction of any
entitlements or protections which the employees enjoy under an award or
industrial agreement and in the context of their terms and conditions of
employment. If the Industrial Commission decides that such reduction
would occur, it then must determine whether, in the context of their terms
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and conditions of employment considered as a whole, the reduction would
be contrary to the public interest.
Subsection (3) provides that (1)(c) (the requirement for industrial
organisations of employees to consult with their members prior to an
application for certification of agreement) does not apply to an industrial
organisation of employees if--
· the agreement applies only to a new business, project or undertaking;
and
· at the time when the application for certification is made no members
of the industrial organisation have yet been employed in connection
with the business, project or undertaking.
There may be cases, where a new business, project or undertaking is
being established and an agreement is negotiated before the business etc,
commences operation eg on a so-called "greenfields" site.
Under subsection (3), it is made clear that there is no requirement for
consultation if there are no members who are employed in connection with
the business, etc. This does not exclude consultation by the union concerned
with members, if it considers it appropriate.
Under paragraph (1)(e) there is a requirement that where an agreement
applies only to a single business, part of a single business or single place of
work, each industrial organisation of employees that is a party to an award
applying to that single business etc, or if there is no such award, an
industrial organisation of employees that is able to represent the industrial
interests of the employees who are covered by the agreement, must be party
to the agreement. Under subsection (4), an agreement can still be certified
even if not all such organisations are party to the agreement, provided the
Industrial Commission is satisfied that--
-- each industrial organisation of employees has been given the
opportunity to be a party to the agreement; and
-- at least one of those organisations is a party to the agreement; and
-- the agreement is in the interests of the employees it covers.
Subsection (5) provides that subsection (1)(e)(i)(A) does not apply to an
industrial organisation of employees if none of its members are employed
in the business, part of a business or place of work concerned.
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The objective of the provisions relating to the question of whether
employees will be disadvantaged by an agreement, if it is certified and so
takes effect, is to balance:
-- on the one hand, the capacity of the parties to an agreement to decide
on arrangements about work and related matters and to have them
given force as a certified agreement, and
-- on the other hand, to ensure that such arrangements are not unfair to
the employees concerned by reducing the employment standards
which apply to them.
Proposed Section 10.3F--Commission may refuse to certify
agreements
Subsection (1) provides that despite the provisions of section 10.3E
(Certification of agreements under the Division) the Industrial Commission
may refuse to certify an agreement which is one that does not apply only to
a single business, part of a single business or a single place of work, if the
Commission thinks that certification would be contrary to the public
interest.
In subsection (2) a different public interest test is to be applied by the
Industrial Commission in respect of agreements only applying to a single
business, part of a single business or a single place of work.
In this situation, despite the provisions of section 10.3E, the Industrial
Commission may refuse to certify the agreement only if--
. the Minister has intervened in the application on the ground that
certification under section 10.3D may jeopardise seriously the public
interest; and
. the Industrial Commission thinks that certification of the agreement is
likely to jeopardise seriously the public interest.
Subsection (3) provides that subsection (2) ceases to have effect at the
end of 18 months after the commencement of this section.
For agreements of wider application than a single business, part of a
single business or a single place of work the Industrial Commission may
refuse to certify if it thinks certification would be contrary to the public
interest.
For agreements that apply to a single business only, part of a single
business or a single place of work then provided that the Minister has
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intervened in the application under section 10.3D, the Industrial
Commission must be of the view that certification of the agreement is likely
to jeopardise seriously the public interest. This is in effect a narrower public
interest test.
It is contended that the provision of a narrower public interest for
agreements applying to a single business, part of a single business, or a
single place of work will assist in facilitating the process of workplace
reform.
Proposed Section 10.3G--Other options open to Commission
This section contains facilitative provisions. They are intended to ensure
that where an application is made for the certification of an agreement and
the Industrial Commission has grounds for refusing certification, parties are
given the opportunity to rectify the problem, rather than certification being
refused.
Under paragraph 1(a) the Industrial Commission may accept an
undertaking from a party, or parties, about how the agreement will operate.
If the Industrial Commission is satisfied that the undertaking meets its
concerns, it may certify the agreement.
If the undertaking is breached, the Industrial Commission may terminate
the agreement, provided all parties to the agreement are given an
opportunity to be heard--subsection (2).
Under paragraph 1(b) the Industrial Commission, before refusing to
certify an agreement, must give the parties an opportunity to amend the
agreement to make it certifiable. The parties must be given the opportunity
to take any other action that might be necessary to make the agreement
certifiable (for example, an organisation of employees might engage in
further consultations with members).
Proposed Section 10.3H--Procedures for preventing and settling
disputes
This section provides that an agreement may include terms which give
the Industrial Commission power to settle disputes over the application of
the agreement.
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This means that the Industrial Commission, if it so determines that it is
appropriate, may include a provision in an agreement which gives it arbitral
power to settle disputes over how the terms of the agreement are applied.
It is possible under this section that the Industrial Commission might
take the view that disputes settling procedures contained in the agreement
propose a role for the Industrial Commission which is inappropriate. It is
for the Industrial Commission to determine its role in this issue.
Proposed Section 10.3I--Operation of certified agreements
This section contains provisions relating to the period during which a
certified agreement is in force and to the status of a certified agreement after
the period of operation of the agreement specified by the parties expires.
Under subsection (1), a certified agreement comes into force when it is
certified and during the period of the agreement, it remains in force unless:
(a) the Industrial Commission terminates it under section 10.3G(2);
or
(b) because of 1 or more orders or declarations under section 10.3M
or 10.3N (see notes on these sections)
(i) the agreement is terminated; or
(ii) all the remaining parties to the agreement are industrial
organisations of employees; or
(iii) all the remaining parties to the agreement are employers or
industrial organisations of employers.
Under subsection (2), if an agreement remains in force until the end of
the period of the agreement, then, at the end of that period, the agreement
continues in force until--
(a) it is terminated by the Industrial Commission; or
(b) it is varied by the parties (other than under section 10.3M(3)(e))
(see notes for 10.3M); or
(c) a new agreement, in substitution of the agreement, is certified
under this Division; or
(d) all the remaining parties to the agreement are industrial
organisations of employees; or
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(e) all the remaining parties to the agreement are employers or
industrial organisations of employers.
This subsection has the effect that, after the specified period of operation,
the agreement continues in force but may be terminated, varied, replaced etc
as set out in the above subsection.
Proposed Section 10.3J--Party may retire from a certified agreement
Subsection (1) sets out the process by which, in the normal course of
events, a party may retire from a certified agreement.
That is, a party to a certified agreement--
(a) within 30 days before the end of the period of the agreement; or
(b) at any time while the agreement continues in force because of
section 10.3I(2);
may file in the Industrial Registrar's office a notice in accordance with the
rules of court signifying an intention to retire from the agreement at the end
of a specified period of at least 30 days from the day of filing.
Subsection (2) specifies that at the end of the specified period, the party
that has filed the notice ceases to be a party to the certified agreement.
Proposed Section 10.3K--Extension of certified agreements
This section allows parties to extend, and further extend, the specified
period of operation of a certified agreement--subsection (1).
For an extension to have effect, the parties must agree and must notify
the Industrial Commission of the extension. The notification must be in
writing and must be provided to the Industrial Commission before the
period of operation of the agreement that is specified in the agreement
expires (or before the expiry of that period as extended or further extended
under the section.)
Proposed Section 10.3L--Effect of certified agreements
It is intended that certified agreements operate differently from awards
and industrial agreements.
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Paragraph (1)(a) provides that the terms of the certified agreement while
it is in force prevail over the terms of an award or an industrial agreement to
the extent of the inconsistency.
Paragraph (1)(b) provides that a term of the certified agreement while it
is in force can be varied by the parties, but only as provided in section
10.3M (see notes on section 10.3M).
Subsection (2) specifies that a certified agreement may be varied by the
Industrial Commission, on the application of the parties, only for the
purpose of removing ambiguity or uncertainty.
Subsection (3) specifies that subject to section 10.3H (procedures for
preventing and settling disputes), the Industrial Commission must not
exercise arbitration powers in relation to the certified agreement.
Proposed Section 10.3M--Certified agreements may be varied or
terminated by Full Bench
This section sets out the circumstances in which a Full Bench of the
Industrial Commission may review the operation of a certified agreement
and the action it may take following such a review.
Subsection (1) provides that a review of a certified agreement may be
conducted by a Full Bench of the Industrial Commission at any time while
the certified agreement is in force and must give the parties to the agreement
an opportunity to be heard.
Subsection (2) provides that a review may only be initiated by a Full
Bench of the Industrial Commission acting on its own motion, or an
industrial organisation or person bound by the agreement.
Subsection (3) specifies that if the Full Bench finds in the case of any
certified agreement that its continued operation-
(a) would be unfair to the employees covered by the agreement; or
(b) in the case of an agreement that does not apply only to a single
business, part of a business or a single place of work, that the
continued operation of the agreement would be contrary to the
public interest;
and provided the Full Bench finds either of the above, it may do any of the
following things--
(c) by order, terminate the agreement;
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(d) accept an undertaking from all or any of the parties in relation to
the operation of the agreement;
(e) permit the parties to vary the agreement.
Subsection (4) provides that if an undertaking, as per subsection (3)(d),
is not observed, the Full Bench may, by order, terminate the agreement after
giving the parties an opportunity to be heard.
Subsections (5) and (6) provide a mechanism whereby a party to a
certified agreement may be released from the agreement if another party to
the agreement engages in industrial action.
Subsection (5) provides that the party seeking to be released must apply
to a Full Bench of the Commission for a declaration that the party is no
longer bound. That party must be affected by the industrial action, the
industrial action must relate to a matter dealt with in the agreement, and
must be engaged in by another party or other parties to the agreement.
Subsection (6) provides that, upon receipt of an application, the Full
Bench may declare that the applicant party is no longer bound, provided the
Full Bench is satisfied that it is in the public interest to make such a
declaration.
Subsection (7) makes separate and distinct provisions for review, by a
Full Bench on public interest grounds, of certified agreements which apply
only to a single business, part of a single business or single place of work.
Such reviews may only be conducted where the Minister applies to a Full
Bench. The ground on which the Minister may apply for review is that the
continued operation of the agreement would "jeopardise seriously" the
public interest. If the Full Bench finds the ground established, it may--
-- terminate the agreement;
-- accept an undertaking from all or any of the parties in relation to the
operation of the agreement;
-- permit the parties to vary the agreement.
The right of the Minister to apply for review on the basis of substantial
jeopardy to the public interest, and the power of the Industrial Commission
to review on the basis of such an application, are intended to exist for a
limited period while the operation of the new provisions becomes
established. Accordingly, subsection (7) ceases to operate 18 months after
the commencement of the section. After that, the only ground on which
agreements applying only to a single business, etc, will be reviewable will
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be provided in subsection (3)(a), that the continued operation of the
agreement would be unfair to the employees covered by the agreement.
Proposed Section 10.3N--Certified agreements may be terminated by
parties
This section enables a party to a certified agreement to apply to the
Industrial Commission to withdraw from the agreement, where all the other
parties agree. It also provides that, if they agree, all parties may apply jointly
to the Industrial Commission to have an agreement terminated. If the
Industrial Commission considers that it is in the public interest to do so, it
may allow such application.
Subsection (1) provides that a party to a certified agreement may, with
the consent of all the relevant parties, give notice to the Industrial
Commission stating that the party does not wish to remain bound by the
agreement. Notice must be in writing. Relevant parties are defined in the
section as follows:
· where the party seeking to withdraw from the agreement is an
employer or an employer organisation--the relevant parties are parties
that are organisations of employees;
· where the party seeking to withdraw from the agreement is an
organisation of employees--the relevant parties are parties that are
employers or organisations of employers.
Under subsection (2), all the parties to a certified agreement may give
jointly to the Industrial Commission notice stating that they want the
agreement to be terminated. Notice must be in writing.
Subsection (3) provides that, where the Industrial Commission receives
notice that a party no longer wishes to be bound by an agreement or that all
parties wish an agreement to be terminated, it may make an order or
declaration to that effect, provided it considers that it is in the public interest
to do so.
Proposed Section 10.3O--Enforcement of certified agreements
This section provides that an agreement certified under this Division is
enforceable in the same way as an award is enforceable under the Act.
Clause 13--Amendment of s.10.12 (Powers of Commission re
awards). The Industrial Commission's jurisdiction to `terminate' an award
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is altered in this amendment to that of being able to `rescind' an award. The
amendment facilitates the making of a `new' award in substitution of that
which is `rescinded'.
Clause 14--Replacement of s.11.7 (University or college of advanced
education students). New section 11.7 rearranges the existing provisions
and alters their context to the extent that the permit which the Industrial
Registrar can issue to a student of a `university or college of advanced
education' to allow the student to work at less than the applicable award
wage in work necessary for the fulfilment of the student's course now can
be issued to a student `participating in a tertiary study course'.
Clause 15--Omission of s.11.11 (Reinstatement and re-employment).
Section 11.11 is omitted and replaced by proposed sections 11.37 to 11.41.
Clause 16--Amendment of s.11.22 (Entitlement to long service leave).
The amendment clarifies an entitlement for seasonal employees to long
service leave subject to provisions contained in existing sections 11.32 and
11.33.
Clause 17--Amendment of s.11.32 (Long service leave in meat works
and sugar industry). The amendment rearranges the existing legislation and
inserts provisions which give seasonal employees in meat works and in the
sugar industry an entitlement to long service leave on the same basis as
full-time employees ie 13 weeks after 15 years service, based on the ratio
that the actual service of the seasonal employee bears to the service of a
full-time employee.
For Example
A full-time employee with 15 years service receives 13 weeks long
service leave.
A seasonal employee working a 6 month season each year for 15
years has an actual service of 7/1/2 years.
On the ratio that 7/1/2 bears to 15 the seasonal employee would
have an entitlement to 6/1/2 weeks long service leave.
Service prior to the commencement of the amending Act is to be
taken into account and the entitlement in relation to that service is to
be calculated in accordance with these new provisions.
This accords with the formula provided at subsection (6).
Clause 18--New Divisions 4 and 5 in Part 11
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Division 4--Reinstatement and re-employment
A proposed Division 4 relating to reinstatement and re-employment is
inserted.
This Division rearranges the wording in the existing provisions,
previously provided at section 11.11, and modifies such provisions to the
extent that--
· the Industrial Commission, upon considering `the circumstances of the
case', may extend the time (21 days) in which application for
reinstatement or re-employment is to be made. (Section 11.37(1))
· an industrial organisation (union) of employees, with the consent of a
dismissed employee who is a member, now may make an application
for reinstatement or re-employment of that employee. (Section
11.37(2)).
· in those cases where the Commission determines that an employee be
reinstated or re-employed but considers that to enforce either remedy
would be inappropriate, the Commission now can order the employer
to pay compensation in an amount as determined by the Commission.
(Section 11.38(1))
· any fraction of a year now can be taken into account when calculating
the amount of compensation which uses a formula based on `average
monthly wage' and `years of employment'. (Section11.38(3)).
Rearrangement of existing wording into separate numbered sections is to
accord with current drafting practice.
Division 5--Protection of injured employees
A proposed Division 5 relating to protection of employees who are
injured within the meaning of the Workers' Compensation Act is inserted.
Proposed Section 11.42--Interpretation of Division
This section provides definitions to reflect the new provisions of the
Division.
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Proposed Section 11.43--Wages to be paid for the day employee
injured
This section provides an entitlement to an employee to a full days wage
for the day an injury occurred that resulted in the employee being absent on
workers compensation.
Proposed Section 11.44--Application to employer for reinstatement
after dismissal
This section prescribes on what basis an employee may apply to an
employer for reinstatement and within what timeframe.
Proposed Section 11.45--Application to Commission for
reinstatement order
This section provides for who may apply to the Industrial Commission
for a reinstatement order in cases where an employer does not reinstate an
employee after the employee has made an application under section 11.44.
Proposed Section 11.46--Commission order to reinstate
This section provides the criteria by which the Commission may order
reinstatement and gives power to the Commission to include terms of
reinstatement in the order.
Proposed Section 11.47--Extension of time for application
This section provides on what condition the Commission may order a
reinstatement in situations where an employee applied for reinstatement
outside the timeframe prescribed in section 11.44.
Proposed Section 11.48--Dismissal an offence in certain cases
This section creates an offence for an employer to dismiss an employee
who is not fit for employment as a result of an injury within 3 months of
the employee becoming unfit.
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Proposed Section 11.49--Preservation of employee's rights
This section protects the rights of a dismissed employee that may exist
under any legislation and provides that the provisions of the division are still
operative despite any contract or agreement that may exist.
Clause 19--Repeal of s.12.4 (Conciliation by Commissioner or
Industrial Magistrate). The amendment repeals the existing section 12.4
which provides for employers to make enterprise agreements directly with
their employees without publication.
New sections 10.3A to O now cater more properly for the creation of
enterprise agreements.
Clause 20--Amendment of s.13.13 (Rules to provide for election of
officers). Currently the Industrial Relations Act 1990 at section 13.13
provides that each officeholder in an industrial organisation must be elected
either by a direct voting system or a one-tier collegiate electoral system (as
defined) for a full-time official. Collegiate voting or such similar term is not
defined in the current Act.
The first amendment to section 13.13 omits subsection (1)(a) and inserts
a new subsection (1)(a) which ensures that the rules of an industrial
organisation must provide for the election of the holder of each office in the
industrial organisation by--
(i) a direct voting system; or
(ii) a collegiate electoral system.
The second amendment to section 13.13, inserts a new subsection (4).
This subsection defines the term "collegiate electoral system". This term
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 1 subsequent
stage at which persons are elected by and from a body of persons consisting
of persons elected at the first stage.
(This means that a popular vote by members of an organisation creates a
college of members that subsequently elect from their own body, persons to
fill offices of the organisation, such as the Secretary.)
The effect of the amendments to section 13.13 is that the collegiate
system of voting has been retained in a modified form. That is, where there
is a collegiate electoral system only those officials elected at the first stage
by the rank and file membership would be eligible to be elected at the
following stage.
20
Clause 21--Insertion of a New Division 3A in Part 13
Division 3A--Conduct of elections for office
The amendment inserts a new Division containing a number of clauses
having provisions relating to the conduct of elections for office in an
industrial organisation.
Proposed Section 13.24A--Conduct by Electoral Commission
This section specifies that elections for an office in an industrial
organisation are to be conducted by the Electoral Commission, except
where an exemption is granted by the Industrial Registrar under new section
13.24D.
Proposed Section 13.24B--Application for industrial organisation or
branch to conduct its elections
Subsection (1) provides that a committee of management of an industrial
organisation or a branch of an industrial organisation may file an application
with the Industrial Registrar for exemption from having elections conducted
by the Electoral Commission under section 13.24A with a view to
conducting the election itself.
Subsection (2) requires the Committee of Management of an industrial
organisation or branch of an industrial organisation making application for
exemption under subsection (1)--
· firstly, to have passed a resolution to make the application, and
· secondly, to have notified the members of the resolution.
Subsection (3) requires the application be accompanied by a statutory
declaration to the effect that there has been compliance with the
requirements of subsection (2).
Subsection (4) provides that whenever an application is made under
section 13.24B, the Industrial Registrar must advertise the fact, the purpose
being to bring the matter to the attention of the members of the industrial
organisation concerned.
21
Subsection (5) provides that if the rules of an industrial organisation
require an office to be filled by an election by the members, or by some of
the members, of a single branch of the organisation, an election to fill the
office is taken to be an election for the branch.
Proposed Section 13.24C--Objections to application to conduct
elections
Subsection (1) specifies that a member of an industrial organisation or
branch of the industrial organisation may object to an application made
under section 13.24B.
Subsection (2) provides that the Industrial Registrar is to hear any
objections made.
Proposed Section 13.24D--Registrar may permit industrial
organisation or branch to conduct its elections
Subsection (1) allows the Industrial Registrar to permit an industrial
organisation or branch to conduct its own elections and therefore exempt the
industrial organisation from the requirements of section 13.24A in relation
to elections for the organisation.
To sanction this process the Industrial Registrar must be satisfied that--
(a) the rules of the industrial organisation or branch comply with the
requirements of the Act relating to the conduct of elections; and
(b) the election to be conducted by the industrial organisation or
branch is done so under the rules of the industrial organisation or
branch and will afford those members entitled to vote an adequate
opportunity of voting without intimidation.
Under subsection (2) the Industrial Registrar retains a power to revoke
any exemption granted under section 13.24D. Such power may be
exercised by the Industrial Registrar on application by a committee of
management of an industrial organisation or on the Industrial Registrar's
own motion when the Registrar is no longer satisfied of the existence of the
conditions for exemption for industrial organisations from the requirement
of section 13.24A.
Proposed Section 13.24E--Industrial Registrar to arrange for conduct
of elections
22
Subsection (1) requires that an industrial organisation (other than one
exempted under section 13.24D) file with the Industrial Registrar certain
prescribed information in relation to an election.
Under subsection (2) if the prescribed information is filed and the
Industrial Registrar is satisfied that an election is required to be held under
the rules of the industrial organisation, the Industrial Registrar must arrange
for the conduct of the election by the Electoral Commission.
Proposed Section 13.24F--Provisions applicable to elections
conducted by Electoral Commission
Subsection (1) requires that where an electoral official is involved in or is
actually conducting an election that official must ensure--
· no irregularities happen in the election, or
· any procedural defects that appear to the electoral official to exist in the
rules will be remedied.
Subsection (2) provides that an election conducted by an electoral official
is not invalid merely because of a breach of the rules of the industrial
organisation or branch because of--
· action taken under subsection (1); or
· an act done in compliance with a direction under subsection (1).
Under subsection (3) where an electoral official conducting an election,
dies or becomes unable to complete the conduct of the election, the Electoral
Commissioner must arrange for the completion of the conduct of the
election.
Proposed Section 13.24G--Expenses of election ballot
Subsection (1) provides for certain of the expenses of a ballot conducted
by the Electoral Commission to be paid by the State.
Subsection (2) provides the industrial organisation must pay printing,
postage and distribution costs of the ballot.
Under subsection (3) the industrial organisation must pay the State its
share of the costs within 1 month of receiving a written request from the
Electoral Commission.
23
Subsection (4) specifies that the amount payable by an industrial
organisation under this section may be recovered by the State as a debt
payable to it.
Proposed Section 13.24H--Death of candidate
The section provides that despite anything in the rules of an industrial
organisation, if 2 or more candidates are nominated for an election in
relation to an office in the organisation and one of the candidates dies before
the close of the ballot, the election must be discontinued and a new election
must be held.
Proposed Section 13.24I--Ballot papers etc from elections to be
preserved
Subsection (1) provides that where there is an election for an office in an
industrial organisation and such election is conducted by the Electoral
Commission, the industrial organisation and its officers, and the Electoral
Commission must ensure that all ballot papers, envelopes and records
relevant to the election are preserved and kept by the Electoral Commission
for a period of 1 year after the election.
Subsection (2) provides that in those instances where the election is
conducted by the industrial organisation, the organisation and its officers
must ensure that all the ballot papers, envelopes and records relevant to the
election are preserved and kept by the industrial organisation for a period of
1 year after the election.
Proposed Section 13.24J--No action for defamation in certain cases
Section 13.24J prevents any action for defamation civil or criminal
against the State, or an electoral official or a person acting at the request or
direction of an electoral official, in relation to the printing or publication of a
document by the electoral official or person in the course of the conduct of
an election under this Division of the Act.
The intent is to protect electoral officials, printers etc, who are publishing
or printing material that has been authorised by a third party. It does not
protect public officials except where there is a process of distributing
authorised material in terms of the Act's requirements.
24
There is no intention to deprive a citizen of the right to take a defamation
action against the person who authorised the material.
Clause 22--Omission of s.13.40 (Ballot papers and other records to be
preserved). The provisions of the existing section 13.40 are captured in the
proposed new section 13.24I.
Clause 23--Amendment of s.13.41 (Registrar to conduct elections on
request). The insertion of the words "other than an election conducted by
the Electoral Commission" after "election" in section 13.41(1) ensures that
requests to the Registrar for the conduct of elections do not include those
elections conducted by the Electoral Commission.
The omission of subsection (4)(b) and the insertion of new
subsection(4)(b) provides that such elections conducted by the Registrar
are to be arranged by the Electoral Commission.
Clause 24--Replacement of Division 7 in Part 13
Division 7--Amalgamation of industrial organisations
General Note
The Queensland Act when introduced in 1990, closely followed the lead
of the Federal Government to facilitate union amalgamations. The Federal
Government has since introduced amendments to the provisions with a
view to simplification. So that difficulties do not arise for unions wishing to
amalgamate due to differing State and Federal requirements and to improve
the process in Queensland, it is necessary to repeal the existing provisions
relating to union amalgamation and insert new provisions to reflect the
provisions of the Australian Industrial Relations Act.
Subdivision A--General
The subdivision contains provisions of general application to matters
under the Division.
Proposed Section 13.54--Application of objects to Division etc.
25
This section is similar to section 323 of the Australian Industrial
Relations Act and contains a statement of Parliamentary intention relating to
the application of the objects of the Act to amalgamations. This statement
emphasises that the aim is to proceed quickly where a decision is made on
whether an industrial organisation is to amalgamate with another. The
statement of intent is to assist in the interpretation of the provisions of the
Division 7 (Amalgamation of Industrial Organisations). A similar
provision is not provided under the existing legislation.
Proposed Section 13.55--Interpretation
This section defines certain terms used in Division 7 (Amalgamation of
Industrial Organisations) and is similar to section 324 of the Australian
Industrial Relations Act. The section includes additional definitions to those
under the existing legislation.
Proposed Section 13.56--Procedure to be followed for proposed
amalgamation etc.
This section is similar to section 235 of the Australian Industrial
Relations Act and sets out how an amalgamation is to be achieved. The
existing legislation is extended to empower the Industrial Commission to
give directions and make orders to resolve any difficulty that is likely to
arise in the process.
Subdivision B--Preliminary matters
Under this subdivision, provision is made for the voluntary
establishment of a federation of organisations prior to their amalgamation
and for a procedure to authorise the use of an industrial organisation's
resources to promote a proposed amalgamation.
Proposed Section 13.57--Federations
This section is similar to section 236 of the Australian Industrial
Relations Act and provides a mechanism whereby industrial organisations
intending to amalgamate can have their interests represented by a single
body prior to the application.
26
The resultant federation has the right to representation of its members for
all purposes of the Act except that it may not become a party to an award,
industrial agreement or certified agreement.
The existing legislation does not have provisions of this nature.
Proposed Section 13.58--Use of resources to support proposed
amalgamation
This section is similar to section 237 of the Australian Industrial
Relations Act and clarifies the fact that an industrial organisation is not
prevented from using its resources, financial or otherwise to support a
proposed amalgamation.
This section was introduced into the Federal legislation to overcome a
decision of the Federal Court of Australia (Andersen v Johnson (1990) 32
AILR case report No. 246) which prevented industrial organisations from
using their resources to promote a particular result to a ballot after the day
on which notice of the amalgamation was given.
Similar provisions are not contained in the existing legislation.
Subdivision C--Commencement of amalgamation procedure
The subdivision contains provision relating to the initiation of the
procedures leading to the approval or rejection of a proposed amalgamation.
Proposed Section 13.59--Scheme for amalgamation
This section is similar to section 238 of the Australian Industrial
Relations Act and provides for a formal scheme for a proposed
amalgamation.
Subsection (2) and (3) specify what is to be included and to accompany
the application.
The context of the existing legislation is unchanged.
Proposed Section 13.60--Alternative scheme for amalgamation
This section is similar to section 239 of the Australian Industrial
Relations Act and provides for a scheme for amalgamation of three or more
27
industrial organisations to contain and alternative amalgamation scheme
should all the organisations not agree to the original scheme for
amalgamation.
The context of the existing legislation is unchanged.
Proposed Section 13.61--Approval by committee of management
This section is similar to section 240 of the Australian Industrial
Relations Act and requires that the Committee of Management approve, by
resolution, the scheme for a proposed amalgamation, as well as any
alteration to the scheme. This extends the existing legislation by making this
an express requirement where the existing legislation only implies this to be
the case.
Proposed Section 13.62--Community of interest declaration
This section is similar to section 241 of the Australian Industrial
Relations Act and provides for the filing for a declaration that the industrial
organisation seeking a proposed amalgamation have a community of
interest. This declaration means that less onerous requirements apply in
relation to the required ration of votes in the amalgamation ballot.
Subsection (5) sets out the circumstances in which a community of
interest between industrial organisations of employees may be declared.
Subsection (6) sets out the circumstances in which a community of interest
between industrial organisations of employers may be declared.
The context of the existing legislation is changed in that--
· the Commission no longer is required to be satisfied that the
amalgamation will further the objects of the Act;
· the criteria for establishing a community of interest has been varied
from requiring a substantial number of members of each organisation
to meet the criteria to a substantial number of members of one of the
organisations;
· empowering the Commission to be satisfied that a community of
interest exists for reasons other than those set out in subsection (5) and
(6); and
· permits a community of interest to be declared before a formal
application for approval of a proposed amalgamation is lodged.
28
Proposed Section 13.63--Application for approval for submission of
amalgamation to ballot
This section is similar to section 242 of the Australian Industrial
Relations Act and concerns the initiating step in the formal process for
seeking the Commission's approval of the submission of an amalgamation
to a ballot of members. The application is to be accompanied by a copy of
the scheme for amalgamation and an outline of the scheme which will
enable members of the industrial organisation to make informed decisions.
Proposed Section 13.64--Holding office after amalgamation
This section is similar to section 243 of the Australian Industrial
Relations Act and allows for transitional arrangements under which the
rules of a proposed amalgamated industrial organisation may provide for--
· a person who held office in one of the industrial organisations prior to
the amalgamation to hold a different office after the amalgamation
without being elected;
· the continuation in office of a person who held office in an industrial
organisation after that organisation is amalgamated.
The section also provides for the timing of elections after the
amalgamation.
Proposed Section 13.65--Application for exemption from ballot
This section is similar to section 244 of the Australian Industrial
Relations Act and sets out the circumstances in which a large industrial
organisation proposing to amalgamate with a small industrial organisation
may apply for and be granted an exemption from conducting a ballot of its
members.
The context of the previous legislation is unchanged.
Proposed Section 13.66--Application for ballot not conducted under
13.73J
This section is similar to section 245 of the Australian Industrial
Relations Act and permits an industrial organisation concerned in a
proposed amalgamation to apply to the Commission for permission to have
29
an amalgamation ballot conducted other than by secret postal ballot under
section 13.73J. The criteria for an alternative ballot is set out in 13.73I.
This provision does not appear in the existing legislation.
Proposed Section 13.67--Lodging "yes" case
This section is similar to section 246 of the Australian Industrial
Relations Act and allows for the lodging of a statement in favour of a
proposed amalgamation for distribution to members.
The context of the existing legislation is unchanged.
Subdivision D--Role of the Electoral Commission
Proposed Section 13.68--Ballots to be conducted by the Electoral
Commission
This section is similar to section 247 of the Australian Industrial
Relations Act and provides that all ballots for amalgamation are to be
conducted by the Electoral Commission of Queensland.
The existing legislation provides for the Industrial Registrar to arrange
for the ballot to be conducted. This should reduce the delay in conducting a
ballot.
Proposed Section 13.69--Notification of Electoral Commission
This section is similar to section 245 of the Australian Industrial
Relations Act and provides for the Industrial Registrar to immediately
notify the Electoral Commission of the application.
Subsection (2) provides for the Electoral Commission to take such action
so as to ensure that any prospective ballots are conducted quickly.
This section is to facilitate section 13.68 (Ballots to be conducted by
Electoral Commission).
Proposed Section 13.70--Officer of industrial organisation to provide
information for ballot etc.
This section is similar to section 249 of the Australian Industrial
Relations Act and specifies that an electoral official conducting an
30
amalgamation ballot may require an officer or employee of an industrial
organisation or branch concerned to supply information or documents in the
possession of that officer or employee.
The context of the existing legislation is unchanged except an electoral
official is empowered rather than the person conducting the ballot.
Subdivision E--Procedure for approval of amalgamation
This division provides for the steps to be taken from the lodging of an
application for approval for the submission of the amalgamation to ballot up
to the declaration of the result of the ballot.
The provisions have been varied to provide for greater speed and
adaptability.
Proposed Section 13.71--Fixing hearing in relation to amalgamation
etc.
This section is similar to section 250 of the Australian Industrial
Relations Act and provides for the Commission to immediately fix a time
and place for the notification of a hearing in relation to a proposed
amalgamations.
The context of the existing legislation has not been changed.
Proposed Section 13.72--Submissions at amalgamation hearings
This section is similar to section 251 of the Australian Industrial
Relations Act and provides for submissions to be made by the applicants or
other persons with the leave of the Commission. Submissions can only be
made on prescribed matters.
The context of the existing legislation is unchanged except the applicants
have been given a right to make submissions where as previously they also
required leave of the Commission to do so.
Proposed Section 13.73--Approval for submission to ballot of
amalgamation not involving extension of eligibility rules etc.
31
This section is similar to section 252 of the Australian Industrial
Relations Act and provides that the Commission must approve the
submission of the amalgamation to ballot providing the conditions set out in
subsection (1) have been satisfied.
The Commission is empowered under subsection (3) to authorise the
applicants to alter a scheme for amalgamation or accept an undertaking by
the applicants to alter the scheme for amalgamation so as to approve the
submission to ballot.
Subsection (4) validates the action taken by the applicants so as to
comply with the conditions necessary for approval for submission to ballot.
Subsection (5) deals with situations where the applicants do not alter the
scheme as required or do not fulfil their undertaking.
The existing legislation is extended to give the Industrial Commission the
additional power to alter the scheme or accept the applicant's undertaking
with respect to the scheme. This should speed-up the process.
Proposed Section 13.73A--Objections in relation to amalgamation
involving extension of eligibility rules etc.
This section is similar to section 253 of the Australian Industrial
Relations Act and permits objections to be made by a prescribed person on
prescribed grounds where the Commission has refused to approve under
section 13.73, the submission of amalgamation to ballot. The Industrial
Commission is empowered to hear these objections.
The context of the existing legislation is unchanged.
Proposed Section 13.73B--Approval for submission to ballot of
amalgamation involving extension of eligibility rules etc.
This section is similar to section 253A of the Australian Industrial
Relations Act and provides for the Commission to approve the submission
of the amalgamation to ballot once the objections made under section
13.73A have been dismissed and other criteria are met.
To minimise delays in the process, the existing legislation is extended to
empower the Commission to permit alterations to the scheme or accept an
undertaking to alter the scheme.
32
Subsection (6) deals with noncompliance with the alterations or
undertaking.
Proposed Section 13.73C--Fixing commencing and closing days of
ballot
This section is similar to section 253B of the Industrial Relations Act and
provides for the Commission, after consulting with the Electoral
Commission to fix a commencing day and a closing day of the ballot. The
commencing day for the ballot is to be within 28 days of the approval
unless approval otherwise is given.
The existing legislation has been varied by deleting the necessity for the
commencing day of the ballot to be published in the Industrial Gazette not
less than 3 months before that day. This should accelerate the process of
amalgamation by decreasing the time between the date of approval and the
commencing day of the ballot. In accordance with subdivision D which
requires that the Electoral Commission of Queensland to conduct the ballot,
it has been necessary to add the need for the Commission to consult with
the Electoral Commission before setting the commencement date.
Provision exists to allow the commencing or closing date to be varied.
Proposed Section 13.73D--Roll of voters for ballot
This section is similar to section 253C of the Australian Industrial
Relations Act and defines the persons who may vote in the amalgamation
ballot.
This is a new provision which clarifies who may vote at the
amalgamation ballot.
Proposed Section 13.73E--"Yes" case and "no" case for
amalgamation
This section is similar to section 253D of the Australian Industrial
Relations Act and provides that a statement in support of a proposed
amalgamation ("yes" case) may be lodged with the Industrial Registrar.
Provision is made for statements in opposition ("no" case) also to be
lodged by or on behalf of a minimum number of members with the
Industrial Registrar. Where more than one statement in opposition are
33
received, the Commission may prepare, in consultation with the parties, a
single statement in opposition.
These statements are to accompany the ballot papers.
The existing legislation is varied by increasing the required minimum
number of members from 5% of the total membership or 250 to 5% of the
total membership or 1000. This change is intended to give greater
proportionality to the requirement in its application to large industrial
organisations. The Commission is also given additional power to correct
factual errors which may appear in the statement either supporting or
opposing the amalgamation.
Proposed Section 13.73F--Alteration and amendment of scheme
This section is similar to section 253 of the Australian Industrial
Relations Act and allows the Commission to permit the scheme for
amalgamation to be altered prior to the commencing day of the ballot.
A similar provision does not appear in the existing legislation. The
provision is intended to make the amalgamation process more adaptable by
allowing the scheme to be altered, for example, to reflect changes to the
rules of an industrial organisation before an amalgamation takes place.
Proposed Section 13.73G--Outline of scheme for amalgamation
This section is similar to section 253F of the Australian Industrial
Relations Act and is to be read in conjunction with section 13.63(2). The
section gives the Commission discretion to allow the outline for the scheme
for amalgamation to exceed 3000 words and to include material not in the
form of words such as diagram, photographs and illustrations. The
Commission is also empowered to permit alteration of the outline of the
scheme and may correct factual errors in the outline.
Proposed Section 13.73H--Exemption from ballot
This section is similar to section 253G of the Australian Industrial
Relations Act and provides that an application may be made for exemption
from the requirement for an amalgamation ballot. Subsection (1) provides
the Commission must grant the exemption unless in special circumstances,
where the total number of members that could be admitted to membership
34
of the proposed amalgamated industrial organisation does not exceed 25%
of the number of members of the applicant industrial organisation.
The context of the existing legislation is unchanged except the exemption
threshold of the existing legislation of 5% is being increased to 25%
because the existing figure is considered to be too low.
Proposed Section 13.73I--Approval for ballot not conducted under
section 13.73J
This section is similar to section 253H of the Australian Industrial
Relations Act and deals with the circumstances under which an exemption
must be granted from conducting an amalgamation ballot by a means other
than by secret postal ballot.
Proposed Section 13.73J--Secret postal ballot of members
This section is similar to section 253J of the Australian Industrial
Relations Act and provides that if the Commission approves the
submission to ballot, the Electoral Commission is to conduct a secret postal
ballot unless other wise exempted, in each of the industrial organisations
involved in the proposed amalgamation. If the scheme contains a proposed
alternative provision then the Electoral Commission must conduct at the
same time in the same way a ballot on the alternative provision. If more
than one ballot is required, then only one ballot paper is to be used.
Subsection (4) provides that it is not necessary to count the votes on an
alternative amalgamation if the result is not required. Subsection (5)
provides for an outline of the scheme for amalgamation to accompany the
ballot papers sent to persons who are entitled to vote.
The context of the existing legislation is unchanged except for the
involvement of the Electoral Commission in conducting the vote.
Proposed Section 13.73K--Determination of approval of
amalgamation by members
This section is similar to section 253K of the Australian Industrial
Relations Act and provides the minimum voting requirements necessary for
approval of the amalgamation ballot. Where a community of interest has
been declared in accordance with section 13.62 more than 50% of the
formal votes cast are required to be in favour of amalgamation. Where a
35
community of interest has not been declared, 25% of the members on the
role must cast a vote in the ballot and more than 50% of the formal votes
must be in favour of the amalgamation.
The context of the existing legislation is unchanged.
Proposed Section 13.73L--Further ballot if amalgamation not
approved
This section is similar to section 253L of the Australian Industrial
Relations Act and makes provision to enable for an application to be made
to enable a proposed amalgamation that has failed to be resubmitted. The
provision allows the Commission to dispense with any step in the
procedure or to order a fresh ballot provided the application is made within
twelve months after the result of the ballot being declared.
Proposed Section 13.73M--Inquiries into irregularities
This section is similar to section 253M of the Australian Industrial
Relations Act and makes provision for the Commission to, within 30 days
after the result of a ballot, enquire into alleged irregularities in relation to the
ballot. The section also empowers the Commission to make orders where it
finds an irregularity has affected or may effect the result of a ballot.
The context of the existing legislation is unchanged.
Proposed Section 13.73N--Approval of amalgamation
This section is similar to section 253N of the Australian Industrial
Relations Act and provides that a proposed amalgamation is to be taken as
approved if the members of each industrial organisation concerned have
approved it in a ballot, or if, in a proposed amalgamation of more than two
industrial organisations, the principal amalgamation scheme is rejected, but
the members of two or more of the existing industrial organisations
approve the proposed alternative amalgamation, the proposed alternative
amalgamation is taken to have been approved.
The context of the existing legislation is unchanged.
36
Proposed Section 17.73O--Expenses of ballot
This section provides for expenses connected with a ballot for
amalgamation conducted by the Electoral Commision to be paid by the
State.
Subdivision F--Amalgamation taking effect
The subdivision provides for the taking effect of a proposed
amalgamation which has been approved at ballot. To avoid delay, there are a
number of provisions which automatically make the amalgamated industrial
organisation the successor of the deregistered industrial organisation or
organisations for various purposes.
Proposed Section 13.73P--Action to be taken after ballot
This section is similar to section 253Q of the Australian Industrial
Relations Act and provides that an amalgamation which has been approved
takes effect as provided in the section.
Subsection (2) requires the Commission to fix the day on which an
amalgamation that has been approved is to take effect. This is to be done
after consultation with the industrial organisations concerned and if the
Commission is satisfied about various specified matters relating to the
validity of the amalgamation and the responsibilities of the participating
industrial organisations. Notice of the day is to be published.
Subsection (3) sets out the action to be taken by the Industrial Registrar
on that day with respect to the registration and deregistration of the
industrial organisations involved.
The context of the existing legislation is unchanged.
Proposed Section 13.73Q--Assets and liabilities of deregistered
industrial organisation become assets and liabilities of amalgamated
organisation
This subsection is similar to section 253R of the Australian Industrial
Relations Act and provides that on amalgamation day, all assets and
liabilities of deregistered industrial organisations become the assets and
liabilities of the amalgamated organisation.
37
Proposed Section 13.73R--Effect of amalgamation on existing
decisions of Commission
This section is similar to section 253T of the Australian Industrial
Relations Act and provides that all decisions of the Commission including
awards which were binding on a deregistering organisation and its
members immediately before the amalgamation took effect become
automatically binding on the amalgamated organisation and its members,
and are effective for all purposes. References in such decisions to an
industrial organisation which was deregistered for the amalgamation are to
be read to include references to the amalgamated organisation.
The context of the existing legislation is unchanged.
Proposed Section 13.73S--Instruments
This section is similar to section 253U of the Australian Industrial
Relations Act and provides that an instrument continues in force from the
time of the amalgamation. Subsection (2) provides that a reference in an
instrument to a deregistered industrial organisation is to be read as referring
to the amalgamated organisation.
This is a new provision which ensures continuity and operation of
instruments (see definition section 13.55).
Proposed Section 13.73T--Pending proceedings
This section is similar to section 253V of the Australian Industrial
Relations Act and provides that an amalgamated industrial organisation
takes the place of the deregistered organisation in all pending proceedings in
a court or before the Commission.
This is a new provision which ensures continuity in Court or
Commission proceedings.
Proposed Section 13.73U--Subdivision applies despite laws and
agreements prohibiting transfer etc.
This section is similar to section 253W of the Australian Industrial
Relations Act and provides that this subdivision prevails over any other Act,
any contract, deed, undertaking, agreement or other instrument.
38
Subsection (2) protects an industrial organisation or other person from
liability from a breach of contract, confidence, civil wrong or breach of any
Act for action taken arising from this division.
Subsection (2)(c) provides that action taken under the division does not
release any surety or part of the surety's obligations.
Subsection (3) provides that where consent is required by a person to
give effect to any aspect of this subdivision, that consent is deemed to have
been given.
Proposed Section 13.73V--Amalgamated organisation to take steps
necessary to carry out amalgamation
This section is similar to section 253X of the Australian Industrial
Relations Act and provides that the amalgamated industrial organisation do
everything to ensure the amalgamation is fully effective.
Subsection (2) empowers the Commission to make an order to ensure
compliance with subsection (1).
Proposed Section 13.73W--Certificates in relation to land and
interests in land
This section is similar to section 253Y of the Australian Industrial
Relations Act and provides for the transfer of land or interests in land where
an amalgamated industrial organisation acquires it through the
amalgamation. The section allows for a certificate lodged with the
appropriate authority to be sufficient notification to transfer the land or
interests.
This is a new provision which simplifies the transfer of land to the new
amalgamated industrial organisation.
Proposed Section 13.73X--Certificates in relation to charges
This section is similar to section 253Z of the Australian Industrial
Relations Act and provides for the transfer of charges where an
amalgamated industrial organisation acquires them through the
amalgamation. The section allows for a certificate lodged with the
Australian Securities Commission to be an appropriate assignment of the
charge.
This is a new provision which simplifies the transfer of charges to the
new amalgamated industrial organisation.
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Proposed Section 13.73Y--Certificates in relation to shares etc.
This section is similar to section 253ZA of the Australian Industrial
Relations Act and provides for the transfer of shares, debenture or interest
in a company where an amalgamated industrial organisation acquires them
through the amalgamation process. The section allows for a certificate
issued and delivered to the company to be a proper instrument of transfer.
This new provision simplifies the transfer of shares, debentures or
interests in companies to the new amalgamated industrial organisation.
Proposed Section 13.73Z--Certificates in relation to other assets
This section is similar to section 253ZB of the Australian Industrial
Relations Act and provides for the transfer of other assets where an
amalgamated industrial organisation acquires them through the
amalgamation. The section allows for a certificate issued and delivered to
the appropriate authority to be an appropriate instrument for transactions in
relation to assets of that kind.
This new provision simplifies the transfer of other assets to the new
amalgamated industrial organisation.
Proposed Section 13.73ZA--Commission may resolve difficulties
This section is similar to section 253ZC of the Australian Industrial
Relations Act and empowers the Commission to make an order to
overcome any difficulty which may arise in relation to the subdivision.
Such order prevails over any other provision in the Act or any other Act.
Subdivision G--Validation
An underlying objective of the new division is to avoid or minimise
difficulties in respect of amalgamations. Accordingly, certain acts by
organisations or their officers for the purposes of an amalgamation are to be
treated as valid, if done in good faith and if their validation would not do
substantial injustice to interested persons or bodies.
40
Proposed Section 13.73ZB--Validation of certain acts done in good
faith
This section is similar to section 253ZD of the Australian Industrial
Relations Act and provides that acts done in good faith for the purposes of
an amalgamation are valid notwithstanding any invalidity later discovered.
Proposed Section 13.73ZC--Validation of certain acts after 4 years
This section is similar to section 253ZE of the Australian Industrial
Relations Act and provides after 4 years have elapsed from the day on
which an act in relation to an amalgamation was done then that act is taken
to be valid.
Proposed Section 13.73ZD--Orders affecting application of section
13.73ZB or 13.73ZC
This section is similar to section 253ZF of the Australian Industrial
Relations Act and provides that the Commission may make orders to
displace the validity of acts which any have been deemed valid under
sections 13.73ZB or 13.73ZC.
Proposed Section 13.73ZE--Commission may make orders in relation
to consequences of invalidity
This section is similar to section 253ZG of the Australian Industrial
Relations Act and empowers the Commission, on application, to determine
whether there has been an invalidity in relation to an amalgamation or
proposed amalgamation and to make certain orders to correct the invalidity.
As a safeguard, subsection (5) requires the Commission, before making
an order to rectify the invalidity or its consequences, to satisfy itself that
substantial injustice would not occur as a result of the order.
Subdivision H--Miscellaneous
Proposed Section 13.73ZF--Ballot papers etc from ballots to be
preserved
This section provides for the Electoral Commission to preserve ballot
papers for an amalgamation for a period of 1 year after the ballot.
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The existing legislation provides for the person conducting the
amalgamation ballot to preserve the ballot papers for a period of 30 days
from the date of the declaration of the result or where an application has
been made in respect to an alleged irregularity in relation to a ballot, until
that application has been disposed of and any period allowed for an appeal
against the Commission's decision or the appeal has been determined.
Proposed Section 13.73ZG--No action for defamation in certain cases
This section provides protection for the State, an electoral official or a
person acting under direction of the electoral office from an action for
defamation.
This is a new provision which protects officers who publish statements
in accordance with the amalgamation provisions of the division.
The protection does not extend to the author of any alleged defamatory
statement.
There is no intention to deprive a citizen of the right to take a defamation
action against the person who authorised the material.
Clause 25--Amendment of s.13.87 (Auditors of industrial
organisations). The amendment removes the existing provisions'
inappropriate reference to an auditor of an industrial organisation being a
person `duly registered under the Public Accountants Registration Act
1946-1988, or under a law of another State or Territory of the
Commonwealth that provides for registration of public accountants', as that
Act was repealed.
Rearrangement of the remainder of the existing provisions is to accord
with current drafting practice.
Clause 26--Amendment of s.14.1 (Appointment of Industrial
Inspectors). The amendment provides that Inspectors appointed under the
Industrial Relations Act of the Commonwealth may be appointed as, and
exercise the powers of, Industrial Inspectors.
Clause 27--Amendment of s.14.11 (Payment of employee's wages etc
to Industrial Inspector). The amendment provides that an employer
convicted of an offence for failing to comply with a demand by an
Industrial Inspector for payment of wages due to an employee and unpaid
may suffer the making of an Order by an Industrial Magistrate for payment
of the amount of money that was the subject of the demand.
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Clause 28--Amendment of s.14.12 (Industrial Inspector's obligation for
moneys paid on demand). The amendment provides that unpaid
occupational superannuation contributions received by an Industrial
Inspector on behalf of an employee, if the moneys cannot be paid to--
· the employee because the employee cannot be located
· an occupational superannuation scheme or fund, or in the case of a past
employee, any superannuation scheme or fund, because the employee
fails to nominate any such fund to which the moneys are to be paid
are to be paid by the Inspector to the Department.
The Department is to pay the moneys into the Unclaimed Moneys Fund
in the Treasury.
Clause 29--Amendment of s.15.19 (Certifying Barrister). The
amendment provides for authority for determining the fees payable to the
Certifying Barrister for examining the rules, and amendment to the rules, of
industrial organisations under section 13.20 of the Act to be vested in the
Minister.
Clause 30--Amendment of s.17.16 (Payment of wages). The
amendment permits an employer paying wages in cash to `round off' the
amount being paid to the nearest 5 cents.
Clause 31--Amendment of s.17.20 (Recovery of wages etc). The
amendment clarifies that an application by an Industrial Inspector to an
Industrial Magistrate for payment of wages due to an employee may be
made in the name of the Inspector.
Clause 32--Amendment of s17.21 (Enforcement of Industrial
Magistrate's Orders). The amendment clarifies that any order made by an
Industrial Magistrate in proceedings relating to the underpayment of
occupational superannuation contributions is enforceable in the same
manner as an order made under the Justices Act.
Clause 33--Replacement of s.18.19 (Offence re taking of ballot for
office in industrial organisation). It varies the previous provision by
applying it to amalgamation ballots.
This section prescribes certain offences in relation to the conduct of
ballots for an election or for a proposed amalgamation.
Maximum penalty for the offices is prescribed as 80 penalty units
($4,800).
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Clause 34--Amendment of s.18.23 (Failure to provide information re
amalgamation ballot). The reference to s.13.66 is altered to reflect the
replacement of existing s.13.66 with a new s.13.70 "Officers of industrial
organisation to provide information for ballot etc" as effected by clause 24
of the Bill.
Clause 35--Amendment of s.18.49 (Persons considered parties to
offences). The amendment clarifies that where members of the governing
body of a corporation or persons who manage or participate in the
management or control of a corporation's business in Queensland are
convicted of an offence relating to--
· payment of wages to an employee, or
· payment of occupational superannuation contributions
are liable for any such payments ordered by an Industrial Magistrate to be
made to, or on behalf of, the employee concerned.
Clause 36--Insertion of New Part 19A
Part 19A--Savings, transitional and repeals
Proposed Section 19A.1--Repeals
To accord with modern drafting practice the repeals which were
previously listed at section 1.4 of the Act have been moved to this new Part.
The context of the existing legislation is unchanged.
Proposed Section 19A.2--Savings
To accord with modern drafting practice the savings which previously
listed at section 1.5 of the Act have been moved to this new Part.
The context of the existing legislation is unchanged.
Proposed Section 19A.3--Demarcation orders and disputes
This section provides that demarcation orders which were made prior to
the commencement of this Act under section 4.25 are to be given effect,
after the commencement of this Act as if they were made under section
4.25A.
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Subsection (2) provides that any action being dealt with under section
4.25 is to be dealt with, after the commencement of this Act under section
4.25A.
Proposed Section 19A.4--Transitional provisions in relation to
amalgamations
This section provides that a scheme for a proposed amalgamation which
was submitted to ballot before the commencement of this Act but had not
yet taken effect or had been rejected then it is to be continued to be dealt
with under the existing provisions.
If, however, none of the ballots had been started, the action taken prior to
the commencement of this Act is taken to have been done under the
corresponding provision of this Act.
Clause 37--Insertion of new Part 19B. Part 19B--Renumbering of Act.
Provides for renumbering of the Act in accordance with current numbering
style. The amending section will be proclaimed when a reprinted Act is
available.
Clause 38--Minor and consequential amendments. A schedule of minor
and consequential amendments which are necessary as a result of the
insertion of the new Part 10, Division 1A--Certified Agreements has been
inserted in the Act.
© The State of Queensland 1992