Workplace Relations Legislation Amendment Act 2002

No. 127, 2002

An Act to amend laws relating to workplace relations, and for other purposes

[Assented to 11 December 2002]

The Parliament of Australia enacts:

This Act may be cited as the Workplace Relations Legislation Amendment Act 2002.

(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, on the day or at the time specified in column 2 of the table.

Commencement information
Column 1	Column 2	Column 3
Provision(s)	Commencement	Date/Details
1. Sections 1 to 3 and anything in this Act not elsewhere covered by this table	The day on which this Act receives the Royal Assent	11 December 2002
2. Schedule 1, item 1	The day on which this Act receives the Royal Assent	11 December 2002
3. Schedule 1, item 2	A single day to be fixed by Proclamation, subject to subsection (3)	11 June 2003
4. Schedule 1, item 3	The day on which this Act receives the Royal Assent	11 December 2002
5. Schedule 1, items 4 to 17	At the same time as the provision covered by item 3 of this table	11 June 2003
6. Schedule 2	The day on which this Act receives the Royal Assent	11 December 2002
7. Schedule 3, items 1 to 14	The day on which this Act receives the Royal Assent	11 December 2002
8. Schedule 3, items 15 to 17	Immediately before the commencement of items 17, 28 and 41 of Schedule 1 to the Employment, Workplace Relations and Small Business Legislation Amendment (Application of Criminal Code) Act 2001	2 October 2001
9. Schedule 3, item 18	A single day to be fixed by Proclamation, subject to subsection (3)	14 February 2003 (Gazette 2003, No. GN 6)
10. Schedule 3, item 19	The later of: (a) the day on which this Act receives the Royal Assent; and (b) the commencement of item 2 of Schedule 1 to the Higher Education Legislation Amendment Act (No. 3) 2002	11 December 2002 (paragraph (a) applies)
11. Schedule 3, items 20 to 22	A single day to be fixed by Proclamation, subject to subsection (3)	29 May 2003 (s 2(1); Gazette 2003, S174)
13. Schedule 3, item 24	The day on which this Act receives the Royal Assent	11 December 2002
14. Schedule 3, items 25 to 27	At the same time as the provisions covered by item 11 of this table	29 May 2003
15. Schedule 3, item 28	The day on which this Act receives the Royal Assent	11 December 2002
16. Schedule 3, item 29	At the end of the period of 6 months beginning on the day on which this Act receives the Royal Assent	11 June 2003
17. Schedule 3, item 30	A single day to be fixed by Proclamation, subject to subsection (3)	11 June 2003
18. Schedule 3, item 31	The day on which this Act receives the Royal Assent	11 December 2002
20. Schedule 3, item 33	A single day to be fixed by Proclamation, subject to subsection (3)	14 February 2003 (s 2(1); Gazette 2003, GN6)
22. Schedule 3, item 35	At the same time as the provision covered by item 13 of this table	11 December 2002
23. Schedule 3, items 36 to 40	A single day to be fixed by Proclamation, subject to subsection (3)	14 February 2003 (s 2(1); Gazette 2003, GN6)
25. Schedule 3, item 42	The day on which this Act receives the Royal Assent	11 December 2002
26. Schedule 3, item 43	At the same time as the provision covered by item 20 of this table	14 February 2003
27. Schedule 3, item 44	At the same time as the provision covered by item 13 of this table	11 December 2002
28. Schedule 3, item 45	A single day to be fixed by Proclamation, subject to subsection (3)	11 June 2003
29. Schedule 3, items 46 to 48	The day on which this Act receives the Royal Assent	11 December 2002
30. Schedule 3, items 49 to 51	The day after this Act receives the Royal Assent	12 December 2002
31. Schedule 3, item 52	At the same time as the provisions covered by item 11 of this table	29 May 2003
32. Schedule 3, items 53 to 55	Immediately before the commencement of items 38, 39 and 40 of Schedule 3 to the Workplace Relations Legislation Amendment (Registration and Accountability of Organisations) (Consequential Provisions) Act 2002	12 May 2003
34. Schedule 3, item 57	At the same time as the provision covered by item 15 of this table	11 December 2002
35. Schedule 3, item 58	At the same time as the provision covered by item 20 of this table	14 February 2003
36. Schedule 3, item 59	At the same time as the provisions covered by item 23 of this table	14 February 2003
37. Schedule 3, item 60	At the same time as the provision covered by item 25 of this table	11 December 2002
38. Schedule 3, item 61	At the same time as the provision covered by item 28 of this table	11 June 2003

Note: This table relates only to the provisions of this Act as originally passed by the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent.

(2) Column 3 of the table is for additional information that is not part of this Act. This information may be included in any published version of this Act.

(3) If a provision covered by item 3, 9, 11, 17, 20, 23 or 28 of the table does not commence within the period of 6 months beginning on the day on which this Act receives the Royal Assent, it commences on the first day after the end of that period.

3 Schedule(s)

Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

Schedule 1—Amendments relating to rehabilitation and compensation laws

Safety, Rehabilitation and Compensation Act 1988

1 At the end of section 41A

Add:

(2) A rehabilitation authority who is the Chief of the Defence Force may, in writing, delegate to an officer or employee of the Commonwealth all or any of the powers and functions of the rehabilitation authority under this Part.

2 At the end of section 72A

Add:

(2) Comcare must:

(a) give the Seafarers Safety, Rehabilitation and Compensation Authority (established under section 103 of the Seafarers Rehabilitation and Compensation Act 1992) such secretarial and other assistance; and

(b) make available to the Authority the services of such members of Comcare’s staff and such other resources;

as the Authority reasonably requires from time to time for the proper performance of its functions or exercise of its powers.

Note: The heading to section 72A is replaced by the heading “Duty to assist the Commission and the Seafarers Safety, Rehabilitation and Compensation Authority”.

3 Section 94

Repeal the section.

Seafarers Rehabilitation and Compensation Act 1992

4 Section 104 (note)

Omit “Note”, substitute “Note 1”.

5 At the end of section 104

Add:

Note 2: Section 72A of the Safety, Rehabilitation and Compensation Act 1988 imposes a duty on Comcare to assist the Authority in performing its functions and exercising its powers.

6 Subsection 125(1)

Repeal the subsection, substitute:

Delegation by Authority

(1) The Authority may, by resolution, delegate all or any of the Authority’s functions and powers to the Chief Executive Officer of Comcare.

Note: The heading to section 125 is altered by adding “and sub‑delegation” after “Authority”.

7 Subsections 125(2) and (3)

Omit “this section”, substitute “subsection (1)”.

8 At the end of section 125

Add:

Subdelegation by CEO of Comcare

(5) Despite paragraph 34AB(b) of the Acts Interpretation Act 1901, the Chief Executive Officer of Comcare may, by signed writing, delegate all or any of the functions and powers delegated under subsection (1) to:

(a) the Deputy Chief Executive Officer of Comcare; or

(b) a member of Comcare’s staff.

Seafarers Rehabilitation and Compensation Levy Collection Act 1992

9 Section 3

Insert:

Comcare means the body established under section 68 of the Safety, Rehabilitation and Compensation Act 1988.

10 Section 6

Omit “the Secretary”, substitute “the Chief Executive Officer of Comcare”.

11 Section 11

Omit “The Secretary may, in writing, appoint a person in the Department”, substitute “The Chief Executive Officer of Comcare may, in writing, appoint the Deputy Chief Executive Officer of Comcare, or a member of Comcare’s staff”.

12 Subsection 14(1)

Omit “The Secretary”, substitute “The Chief Executive Officer of Comcare”.

13 Paragraph 14(2)(b)

Omit “the Secretary”, substitute “the Chief Executive Officer of Comcare”.

14 Subsection 14(4)

Omit “the Secretary”, substitute “the Chief Executive Officer of Comcare”.

15 Subsection 15(1)

Repeal the subsection, substitute:

(1) The Chief Executive Officer of Comcare may, in writing, delegate all or any of his or her functions and powers under this Act (other than powers under section 11) to:

(a) the Deputy Chief Executive Officer of Comcare; or

(b) a member of Comcare’s staff.

Note: The heading to section 15 is replaced by the heading “Delegation by the CEO of Comcare”.

16 Subsection 15(2)

Omit “the Secretary”, substitute “the Chief Executive Officer of Comcare”.

17 Transitional regulations

The Governor‑General may make regulations providing for matters of a transitional or savings nature arising out of the amendments made by item 2 and items 4 to 16.

Schedule 2—Changing the name of the National Labour Consultative Council, and other matters relating to the Council

Part 1—Main amendments

National Labour Consultative Council Act 1977

1 Title

Omit “Labour”, substitute “Workplace Relations”.

2 Section 1

Omit “National Labour Consultative Council Act 1977”, substitute “National Workplace Relations Consultative Council Act 2002”.

3 Section 3 (definition of Council)

Omit “Labour”, substitute “Workplace Relations”.

4 Section 4

Omit “Labour”, substitute “Workplace Relations”.

Note: The heading to section 4 is altered by omitting “Labour” and substituting “Workplace Relations”.

5 Subsection 5(1)

Omit “industrial relations matters, and manpower matters,”, substitute “workplace relations matters”.

6 Paragraph 6(1)(d)

Omit “the Australian Chamber of Manufactures”, substitute “the Business Council of Australia”.

7 Paragraph 6(1)(e)

Omit “the Metal Trades Industry Association of Australia”, substitute “the Australian Industry Group”.

8 After subsection 6(1)

Insert:

(1A) If the Minister is satisfied that an organisation referred to in a paragraph of subsection (1) (including a paragraph as previously amended under this subsection or subsection (1B)):

(a) has changed its name; or

(b) has merged with another organisation; or

the Governor‑General may make regulations amending that paragraph of subsection (1) so that the paragraph refers to the organisation under its new name, to the merged organisation, or to the successor organisation, as the case requires.

(1B) If the Minister is satisfied that:

(a) an organisation referred to in a paragraph of subsection (1) (including a paragraph as previously amended under this subsection or subsection (1A)) has ceased to exist and has not merged with, or been succeeded by, another organisation; and

(b) there is another organisation that performs a broadly similar role;

the Governor‑General may make regulations amending that paragraph of subsection (1) so that the paragraph refers to that other organisation.

(1C) Before deciding that he or she is satisfied for the purposes of subsection (1B), the Minister must consult the members of the Council.

Note: This subsection is not intended to limit by implication the matters the Minister may take into account for the purposes of subsection (1A) or (1B).

9 Subsection 6(4)

Repeal the subsection.

10 Section 7

Omit “his membership by writing signed by him”, substitute “by writing signed by him or her”.

11 At the end of section 8

Add:

(2) If the Minister is satisfied that an organisation which has nominated a member under subsection 6(1) has ceased to exist and has not merged with, or been succeeded by, another organisation, the Minister must terminate the appointment of that member.

12 Section 9

Repeal the section, substitute:

9 Travelling allowance for members

(1) The regulations may provide for a member to receive travelling allowance at a rate specified or identified in the regulations.

(2) Regulations made for the purposes of subsection (1) may identify a rate by reference to the rate of travelling allowance that is payable to a particular class of office holders under a determination of the Remuneration Tribunal as in force at a particular time, or as in force from time to time.

Note: This subsection is not intended to be an exhaustive statement of the ways in which a rate could be identified.

(3) A member is not otherwise entitled to any remuneration or allowances.

13 Subsection 11(4)

Omit “he”, substitute “the Minister”.

14 Subsection 11(4)

Omit “his”, substitute “the Minister’s”.

15 Subsection 12(2)

Repeal the subsection, substitute:

(2) The regulations may provide for a member of a committee to receive travelling allowance at a rate specified or identified in the regulations.

(3) Regulations made for the purposes of subsection (2) may identify a rate by reference to the rate of travelling allowance that is payable to a particular class of office holders under a determination of the Remuneration Tribunal as in force at a particular time, or as in force from time to time.

Note: This subsection is not intended to be an exhaustive statement of the ways in which a rate could be identified.

(4) A member of a committee is not otherwise entitled to any remuneration or allowances.

16 At the end of the Act

Add:

13 Regulations

The Governor‑General may make regulations prescribing matters:

(a) required or permitted by this Act to be prescribed; or

(b) necessary or convenient for carrying out or giving effect to this Act.

Schedule 3—Other amendments

Part 1—Amendments

Defence Act 1903

1 Section 58F (paragraph (d) of the definition of relevant allowances)

After “his”, insert “or her”.

2 Paragraph 58G(2)(c)

Repeal the paragraph, substitute:

(c) a person who was, but is no longer, a member of the Permanent Forces (although the person may be a member of the Reserves).

Note: The Permanent Forces are made up of the Permanent Navy, the Regular Army and the Permanent Air Force which are established respectively by the Naval Defence Act 1910, this Act and the Air Force Act 1923. Those Acts also establish the Naval Reserve, the Army Reserve and the Air Force Reserve, which together make up the Reserves.

3 Subsection 58G(5)

Repeal the subsection, substitute:

(5) A person must not be appointed as a member of the Tribunal if he or she has, at any time during the year preceding the appointment, been a member of the Permanent Forces.

4 Subsection 58H(13)

Omit “him”, substitute “the Minister”.

5 Subsections 58K(1) and (3)

After “he”, insert “or she”.

6 Subsection 58L(2)

Repeal the subsection, substitute:

(2) A person must not continue to hold office as a member of the Tribunal if:

(a) he or she becomes a member of the Permanent Forces (although he or she may become a member of the Reserves); or

(b) he or she becomes the Defence Force Advocate; or

7 Section 58M

Omit “resign his office by writing signed by him”, substitute “resign his or her office by writing signed by him or her”.

8 Paragraph 58P(1)(b)

Omit “he is acting as President), unable to perform the duties of his office”, substitute “he or she is acting as President), unable to perform the duties of his or her office”.

9 Subsection 58P(2)

Omit “he”, substitute “the person”.

10 Subsection 58P(6)

Omit “he resigns his appointment by writing signed by him”, substitute “the person resigns his or her appointment by writing signed by him or her”.

11 Subsection 58P(7)

After “his” (wherever occurring), insert “or her”.

12 Subsection 58P(7)

Omit “him”, substitute “the person”.

13 Subsection 58P(8)

Omit “or 58K”, substitute “, 58K, 58KA, 58KC or 58U”.

14 Subsection 58Q(2)

After “his” (wherever occurring), insert “or her”.

Employment, Workplace Relations and Small Business Legislation Amendment (Application of Criminal Code) Act 2001

15 At the end of item 17 of Schedule 1

Add “(but not the penalty)”.

16 At the end of item 28 of Schedule 1

Add “(but not the penalty)”.

17 At the end of item 41 of Schedule 1

Add “(but not the penalty or the note)”.

Equal Employment Opportunity (Commonwealth Authorities) Act 1987

18 Subsection 3(1) (definition of responsible Minister)

Repeal the definition, substitute:

responsible Minister, for a relevant authority, means:

(a) if the regulations prescribe a Minister as responsible for the authority—that Minister; or

(b) otherwise—the Minister responsible for the authority.

Equal Opportunity for Women in the Workplace Act 1999

19 Subsection 3(1) (definition of higher education institution)

Repeal the definition, substitute:

higher education institution means a university or other institution of higher education that is included in:

(a) the Australian Qualifications Framework Register of Authorities empowered by Government to Accredit Post‑Compulsory Education and Training; or

(b) the Australian Qualifications Framework Register of Bodies with Authority to Issue Qualifications;

as an institution authorised to issue higher education awards (within the meaning of section 106ZL of the Higher Education Funding Act 1988).

Remuneration Tribunal Act 1973

20 After subsection 7(4A)

Insert:

(4B) The Tribunal may inquire into and determine the travelling allowances to be paid to members of the Australian Industrial Relations Commission established under section 8 of the Workplace Relations Act 1996 for travel within Australia.

21 At the end of paragraphs 7(9)(a) to (ad)

Add “and”.

22 After paragraph 7(9)(ae)

Insert:

(af) in the case of travelling allowances payable to a member of the Australian Industrial Relations Commission—be paid in accordance with the determination out of funds that are lawfully available under section 358 of the Workplace Relations Act 1996; and

Workplace Relations Act 1996

24 Subsection 4(1) (paragraph (a) of the definition of public sector employment)

After “Public Service Act 1999”, insert “or the Parliamentary Service Act 1999”.

25 Paragraph 12(2C)(b)

Repeal the paragraph, substitute:

(b) such travelling allowances as are determined from time to time by the Remuneration Tribunal for travel within Australia; and

26 Paragraphs 21(1)(b), (2)(b), (2A)(b) and (2B)(b)

Repeal the paragraphs, substitute:

(b) such travelling allowances as are determined from time to time by the Remuneration Tribunal for travel within Australia; and

27 Paragraph 23(1)(b)

Repeal the paragraph, substitute:

(b) such travelling allowances as are determined from time to time by the Remuneration Tribunal for travel within Australia; and

28 Paragraph 45(1)(ed)

After “award”, insert “or certified agreement”.

29 After subsection 48(1)

Insert:

(1A) The rules must allow applications under Part VIB, and any ancillary documents relating to those applications, to be made or given to the Commission in electronic form.

(1B) If the rules allow such an application or ancillary document to be given to the Commission in electronic form, then the rules may also allow the Commission to additionally require the original application or ancillary document to be produced to the Commission.

30 After section 48

Insert:

48A President must provide certain information etc. to the Minister

(1) The President must provide to the Minister information, and copies of documents, of the kinds that are prescribed by the regulations, being:

(a) information that is publicly available, or derived from information that is publicly available, relating to:

(i) the Commission’s orders, decisions or actions under this Act; or

(ii) notifications or applications made or given to the Commission under this Act; or

(b) copies of such orders, decisions, notifications or applications.

(2) The President must provide the information or the copies by the time, and in the form, prescribed by the regulations.

31 Subsection 83BE(3)

Omit “83BB(a), (b) or (c)”, substitute “83BB(1)(a), (b) or (c)”.

33 After subsection 170BI(2)

Insert:

(2A) Section 170N does not prevent the Commission from exercising its arbitration powers under Part VI during a bargaining period (within the meaning of Division 8 of Part VIB) for the purposes of this section.

Note: In exercising its arbitration powers, the Commission may adjourn the arbitration until the bargaining period has ended.

35 Subsection 170CD(1) (paragraph (a) of the definition of Commonwealth public sector employee)

After “Public Service Act 1999”, insert “or the Parliamentary Service Act 1999”.

36 Section 170FD

Omit “section 107”, substitute “sections 107 and 108”.

37 At the end of section 170FD

Add:

Note: The Full Bench and the President may deal with certain applications under sections 170JEB and 170JEC (rather than sections 107 and 108).

38 Section 170GD

Omit “section 107”, substitute “sections 107 and 108”.

39 At the end of section 170GD

Add:

Note: The Full Bench and the President may deal with certain applications under sections 170JEB and 170JEC (rather than sections 107 and 108).

40 After section 170JEA

Insert:

170JEB Reference of applications to Full Bench

(1) This section applies to applications under:

(a) Division 2; and

(b) Subdivisions D and E of Division 3.

(2) A reference in this section to a part of an application includes a reference to:

(a) an application so far as it relates to a matter in dispute; or

(b) a question arising in relation to an application.

(3) Where a proceeding in relation to an application is before a member of the Commission, a party to the proceeding or the Minister may apply to the member to have the application, or a part of the application, dealt with by a Full Bench because the application or the part of the application is of such importance that, in the public interest, it should be dealt with by a Full Bench.

(4) If an application is made under subsection (3) to a member of the Commission other than the President, the member must refer the application to the President to be dealt with.

(5) The President must confer with the member about whether the application under subsection (3) should be granted.

(6) The President must grant the application under subsection (3) if the President is of the opinion that the application or the part of the application is of such importance that, in the public interest, it should be dealt with by a Full Bench.

(7) Where the President grants an application under subsection (3), the Full Bench must, subject to subsection (8), hear and determine the application or the part of the application and, in the hearing, may have regard to any evidence given, and any arguments adduced, in proceedings in relation to the application, or the part of the application, before the Full Bench commenced the hearing.

(8) Where the President grants an application under subsection (3) in relation to an application:

(a) the Full Bench may refer a part of the application to a member of the Commission to hear and determine; and

(b) the Full Bench must hear and determine the rest of the application.

(9) The President or a Full Bench may, in relation to the exercise of powers under this section, direct a member of the Commission to provide a report in relation to a specified matter.

(10) The member must, after making such investigation (if any) as is necessary, provide a report to the President or Full Bench, as the case may be.

(11) The President may, before a Full Bench has been established for the purpose of hearing and determining, under this section, an application or part of an application, authorise a member of the Commission to take evidence for the purposes of the hearing, and:

(a) the member has the powers of a person authorised to take evidence under subsection 111(3); and

(b) the Full Bench must have regard to the evidence.

170JEC President may deal with certain applications

(1) This section applies to applications under:

(a) Division 2; and

(b) Subdivisions D and E of Division 3.

(2) A reference in this section to a part of an application includes a reference to:

(a) an application so far as it relates to a matter in dispute; or

(b) a question arising in relation to an application.

(3) The President may, whether or not another member of the Commission has begun to deal with a particular proceeding in relation to an application, decide to deal with the application or a part of the application.

(4) If the President decides to deal with the application or a part of the application, then the President must:

(a) hear and determine the application or the part of the application; or

(b) refer the application or the part of the application to a Full Bench.

(5) If the President refers the application or the part of the application to a Full Bench, the Full Bench must hear and determine the application or the part of the application.

(6) In the hearing of an application or a part of an application by the President under subsection (4) or by a Full Bench under subsection (5), the President or Full Bench may have regard to any evidence given, and any arguments adduced, in proceedings in relation to the application, or the part of the application, before the President or Full Bench commenced the hearing.

(7) Where the President has under subsection (4) referred an application to a Full Bench:

(a) the Full Bench may refer a part of the application to a member of the Commission to hear and determine; and

(b) the Full Bench must hear and determine the rest of the application.

(8) The President or a Full Bench may, in relation to the exercise of powers under this section, direct a member of the Commission to provide a report in relation to a specified matter.

(9) The member must, after making such investigation (if any) as is necessary, provide a report to the President or Full Bench, as the case may be.

42 Paragraph 170LU(2)(c)

Omit “the Court”, substitute “a court”.

43 At the end of section 170N

Add:

Note: The Commission is also not prevented from exercising its arbitration powers during a bargaining period to deal with certain applications for an order for equal remuneration for work of equal value: see subsection 170BI(2A).

44 At the end of section 170WK

Add:

(2) A Secretary of a Department (within the meaning of the Parliamentary Service Act 1999) may act on behalf of the Commonwealth in relation to AWAs with persons in the Department who are engaged under the Parliamentary Service Act 1999.

45 Section 177A (at the end of the definition of court of competent jurisdiction)

Add:

; or (c) the Industrial Relations Court of South Australia; or

(d) any other State or Territory court that is prescribed by the regulations.

46 Subsection 178(1)

Omit “, except in the case of a breach of a bans clause,”.

47 Paragraph 298G(2)(a)

Omit “this”, substitute “the”.

48 Paragraph 298R(d)

Before “has participated”, insert “because the member”.

49 Paragraph 317(2)(c)

Before “put”, insert “fraudulently”.

50 At the end of paragraph 317(2)(g)

Add “without authority”.

51 Paragraph 317(2)(h)

After “ballot paper”, insert “to which the person is not entitled”.

52 Section 358

After “allowances”, insert “(including travelling allowance)”.

Workplace Relations Legislation Amendment (Registration and Accountability of Organisations) (Consequential Provisions) Act 2002

53 Item 38 of Schedule 3

Omit “of the Workplace Relations Amendment (Registration and Accountability of Organisations) Act 2002”, substitute “of Schedule 1B to the Workplace Relations Act 1996”.

54 Item 39 of Schedule 3

Omit “of the Workplace Relations Amendment (Registration and Accountability of Organisations) Act 2002”, substitute “of Schedule 1B to the Workplace Relations Act 1996”.

55 Item 40 of Schedule 3

Omit “of the Workplace Relations Amendment (Registration and Accountability of Organisations) Act 2002”, substitute “of Schedule 1B to the Workplace Relations Act 1996”.