Conciliation and Arbitration Amendment Act (No. 2) 1983

No. 115 of 1983

TABLE OF PROVISIONS

Section

1. Short title

2. Commencement

3. Interpretation

4. President and Deputy Presidents

5. Insertion of new section—

22aa. Joint proceedings

6. Panels of Commission in respect of industries

7. Intervention

8. Continuation of hearing of matters

9. Repeal of section 41a and substitution of new section—

41a. Powers to override certain laws affecting public service

10. Joint sessions of Commission

11. Insertion of new sections—

44b. Reference of disputes to Local Industrial Board for determination

44c. Member of Commission may exercise powers under prescribed State laws

12. Insertion of new section—

49a. Variation of common rules

13. Conference with State Authorities

14. Insertion of new Division—

Division 1a—Industrial Matters—Commonwealth and Territory Employees

70a. Interpretation

70b. Powers in respect of industrial disputes and industrial matters

70c. Exercise of powers

TABLE OF PROVISIONS—continued

Section

70d. Application of Division 1

70e. Employer to act through employing authority

70f. Representation

70g. Transfer of questions to be dealt with under other provisions of this Act

70h. Transfer of matters to be dealt with under this Division

70j. Orders in relation to industrial action

70k. Common rules

15. Application of Division 1

16. Repeal of section 79

17. Application of Division 1

18. Application of Division 1

19. Application of Division 1

20. Power to establish Registries and appoint Registrars

21. Registers of organizations

22. Registration of organizations

23. Prescribed offences

24. Rules to provide for elections, secret ballots and certain other matters

25. Insertion of new section—

133ab. Casual vacancies

26. Rules to provide conditions for loans, grants and donations by organizations

27. Alteration of name or rules of organization

28. Interpretation

29. Application of Part with respect to organizations divided into branches

30. Organization to keep proper accounting records

31. Auditors of organizations

32. Removal of auditor from office

33. Copies of report and audited accounts to be supplied to members and presented to meetings

34. Copies of reports, &c, to be filed with Registrar

35. Auditor entitled to attend meetings at which report presented

36. Offences in relation to obstruction, &c, of auditors

37. Applications for inquiries respecting elections

38. Registrar to conduct elections upon request

39. Variation of agreement to conform with common rule

40. Repeal of Public Service Arbitration Act

41. Consequential amendments

42. Formal amendments

43. Transitional

SCHEDULE 1

ACTS REPEALED

SCHEDULE 2

CONSEQUENTIAL AMENDMENTS

SCHEDULE 3

FORMAL AMENDMENTS

Conciliation and Arbitration Amendment Act (No. 2) 1983

No. 115 of 1983

An Act to amend the Conciliation and Arbitration Act 1904, to repeal the Public Service Arbitration Act 1920, and for related purposes

[Assented to 16 December 1983]

BE IT ENACTED by the Queen, and the Senate and the House of Representatives of the Commonwealth of Australia, as follows:

Short title, &c.

1. (1) This Act may be cited as the Conciliation and Arbitration Amendment Act (No. 2) 1983.

(2) The Conciliation and Arbitration Act 19041 is in this Act referred to as the Principal Act.

Commencement

2. (1) Subject to this section, this Act shall come into operation on the day on which it receives the Royal Assent.

(2) Sections 3, 6, 7, 8, 9, 10, 12, 14 and 16, sub-section 22 (3) and sections 27, 39, 40, 41 and 43 shall come into operation on a date, or respective dates, to be fixed by Proclamation.

(3) Sub-section 22 (1) shall be deemed to have come into operation on 30 November 1979.

Interpretation

3. Section 4 of the Principal Act is amended—

(a) by adding “and” at the end of paragraph (c) of the definition of “Industrial dispute” in sub-section (1);

(b) by omitting “and” from the end of paragraph (d) of that definition;

(c) by omitting paragraph (e) of that definition; and

(d) by adding at the end thereof the following sub-sections:

“(7) For the purposes of this Act, employees in—

(a) prescribed service;

(b) any calling, service, handicraft, occupation or vocation in prescribed service; or

(c) any category, division, class, grade or branch of prescribed service or of any such calling, service, handicraft, occupation or vocation,

shall be deemed to be employees in an industry.

“(8) For the purposes of sub-section (7), ‘prescribed service’ means—

(a) service or employment of the Commonwealth or the Northern Territory, or of an authority, institution or body (whether a body corporate or not, but not being an incorporated company or a society or association) established for a public purpose by or under a law of the Commonwealth or of the Northern Territory, other than service or employment in the Defence Force; and

(b) all persons in any such service or employment in any capacity, whether permanently or temporarily and whether full-time or part-time.”.

President and Deputy Presidents

4. Section 7 of the Principal Act is amended by inserting after sub-section (3) the following sub-section:

“(3a) A Presidential Member may resign his office by notice in writing signed by him and delivered to the Governor-General, but the resignation shall not become effective until the notice is received by the Governor-General or until the day specified in the notice, whichever is the later.”.

5. After section 22 of the Principal Act the following section is inserted:

Joint proceedings

“22aa. (1) In this section, ‘member’ means a member of the Commission.

“(2) If in the opinion of the President it is appropriate, a member may, notwithstanding anything in this Act, exercise, in the presence of—

(a) a prescribed State Industrial Authority;

(b) the parties to a dispute in relation to which the prescribed State Industrial Authority is exercising power (in this sub-section referred to as the ‘State industrial dispute’); and

(c) any witnesses summoned by the prescribed State Industrial Authority, any of the powers of the Commission that are exercisable by him (other than any of the powers of the Commission under section 34) in relation to an industrial dispute (in this section referred to as the ‘federal industrial dispute’).

“(3) Where a member is exercising, as provided by sub-section (1), in relation to a federal industrial dispute, any of the powers of the Commission that are exercisable by him, he may, without limiting the generality of paragraph 40 (1) (b), have regard to any evidence given, in his presence and in the presence of the parties to the federal industrial dispute, to the prescribed State Industrial Authority, being evidence that is relevant to that exercise of those powers.

“(4) Nothing in this section shall be taken to prevent a member of the Commission, or the Commission, from exercising powers in relation to an industrial dispute in the presence of any person other than a State Industrial Authority or a person referred to in paragraph (2) (b) or (c).”.

Panels of Commission in respect of industries

6. Section 23 of the Principal Act is amended by inserting in sub-section (5) “1 A,” after “Divisions”.

Intervention

7. Section 36 of the Principal Act is amended—

(a) by inserting after sub-section (1) the following sub-section:

“(1a) The Minister may, on behalf of the Commonwealth, by giving to the Registrar notice in writing of his intention so to do, intervene in the public interest in a matter before the Commission if the matter is, or to the extent that the matter involves—

(a) an industrial question within the meaning of Division 1a; or

(b) a question that would be an industrial question within the meaning of that Division if—

(i) the bodies referred to in paragraphs (c), (d) and (e) of the definition of ‘Commonwealth authority’ in sub-section (1) of section 70a were not excluded from that definition;

(ii) paragraph (c) were omitted from the definition of ‘employee’ in that sub-section; and

(iii) no regulations were made for the purposes of the definition of ‘Northern Territory authority’ in that sub-section.”; and

(b) by omitting from sub-section (2) “The last preceding sub-section” and substituting “Sub-sections (1) and (1a)”.

Continuation of hearing of matters

8. Section 37 of the Principal Act is amended by omitting from sub-section (2) “or by the Public Service Arbitration Act 1920-1959, as the case requires”.

9. Section 41a of the Principal Act is repealed and the following section is substituted:

Powers to override certain laws affecting public service

“41a. (1) In relation to an industrial dispute referred to in paragraph (d) of the definition of ‘Industrial dispute’ in sub-section 4(1) or an industrial question within the meaning of Division 1a, the Commission may, where it thinks it proper to do so, make an award that is not, or, in the opinion of the Commission, may not be, in accord with a law of the Commonwealth or of an internal Territory relating to salaries, wages, rates of pay or terms or conditions of service or employment of employees in prescribed service as defined in sub-section 4 (8), not being—

(a) the Compensation (Commonwealth Government Employees) Act 1971, the Long Service Leave (Commonwealth Employees) Act 1976, the Superannuation Act 1922 or the Superannuation Act 1976; or

(b) any prescribed Act or prescribed enactment, or any prescribed provisions of an Act or enactment.

“(2) In paragraph (1) (b), ‘enactment’ means an Ordinance made under the Northern Territory (Administration) Act 1910 and continued in force by the Northern Territory (Self-Government) Act 1978”.

Joint sessions of Commission

10. Section 44a of the Principal Act is amended by omitting from sub-section (1) “under this Act or under the Public Service Arbitration Act 1920-1964”.

11. After section 44a of the Principal Act the following sections are inserted:

Reference of disputes to Local Industrial Board for determination

“44b. (1) The President may, where in his opinion it is appropriate so to do, refer an industrial dispute to a Local Industrial Board to be investigated and to be dealt with under this Act by conciliation, by arbitration or by conciliation and, if necessary, by arbitration, and may, at any time before a determination is made by the Local Industrial Board in settlement of the industrial dispute, revoke such a reference.

“(2) For the purposes of investigating and dealing with an industrial dispute that has been referred to it under sub-section (1), a Local Industrial Board may, subject to sub-section (3), exercise all the powers of the Commission under this Act that are exercisable by a Commissioner.

“(3) Where an industrial dispute within the meaning of Division 2 or 4 of Part III is referred to a Local Industrial Board under sub-section (1), the exercise, by the Local Industrial Board, of the powers conferred on it by sub-section (2) is subject to any directions of the Presidential Member assigned by the President for the purposes of the Division concerned.

“(4) A determination made by a Local Industrial Board in settlement of an industrial dispute referred to it under sub-section (1) shall, for the purposes of this Act other than section 36a, be deemed to be an award made by a member of the Commission under this Act, but section 35 applies in relation to such a determination as if paragraph 35 (9) (e) were omitted.

“(5) A Local Industrial Board exercising powers conferred on it by sub-section (2) has the same protection and immunity as, by virtue of section 11a, a member of the Commission has in the performance of his functions and duties as a member of the Commission.

“(6) Section 61 applies in relation to a determination made by a Local Industrial Board in settlement of an industrial dispute referred to it under sub-section (1) of this section as if references in section 61 to the Commission were references to that Local Industrial Board exercising, in relation to that industrial dispute, the powers conferred on it by sub-section (2).

“(7) A determination made by a Local Industrial Board in settlement of an industrial dispute referred to it under sub-section (1) shall, for the purposes of section 65, be deemed not to be an order, award, decision or determination of a State Industrial Authority.

“(8) Sections 182, 183, 184, 186, 187 and 197a apply in relation to the exercise of powers under this section by a Local Industrial Board as if references in those sections to—

(a) a member of the Commission when exercising powers or functions;

(b) a member of the Commission; or

(c) the Commission,

were references to the Local Industrial Board exercising powers conferred on it by sub-section (2).

“(9) In this section—

(a) ‘Local Industrial Board’ means a member of a State Industrial Authority nominated by the President of that State Industrial Authority;

(b) a reference to the President of a State Industrial Authority is a reference to the head, however described, of the State Industrial Authority; and

(c) a reference to an industrial dispute includes a reference to a part of an industrial dispute.

Member of Commission may exercise powers under prescribed State laws

“44c. (1) Where, in accordance with the provisions of a prescribed law of a State, the President of a State Industrial Authority of that State requests the President of the Commission to nominate a member of the Commission to deal with a particular dispute or claim with which the State Industrial Authority is empowered to deal or a particular threatened dispute or claim with which the State Industrial Authority would be empowered to deal, the President of the Commission may, if in his opinion it is appropriate so to do, nominate a member of the Commission to deal with that dispute or claim.

“(2) Where, in pursuance of a request made under the prescribed law of a State, a member of the Commission is nominated by the President of the Commission under sub-section (1) to deal with a particular dispute or claim, that member may exercise such powers and shall perform such functions, for the purpose of dealing with that dispute or claim, as are, by that prescribed law, conferred on a member of the Commission who is so nominated.

“(3) A determination made by a member of the Commission in the exercise of powers or the performance of functions conferred on him as mentioned in sub-section (2)—

(a) shall, for the purposes of this Act, be deemed not to have been made by a member of the Commission under this Act; and

(b) shall, for the purposes of section 65, be deemed to be a decision or determination of a State Industrial Authority.

“(4) In this section, a reference to the President of a State Industrial Authority is a reference to the head, however described, of the State Industrial Authority.”.

12. After section 49 of the Principal Act the following section is inserted:

Variation of common rules

“49a. (1) Subject to this section, where the Commission varies a term of an award, being a term that is a common rule of an industry in a Territory, the variation is, by force of this sub-section, a common rule of that industry in that Territory with effect from the date of effect of the variation.

“(2) Before the Commission varies a term of a kind referred to in sub-section (1), the Registrar shall, in accordance with the regulations, give notice of the place where, and the time when, it is proposed to hear the matter involving that term.

“(3) Where the Commission varies a term of a kind referred to in sub-section (1), the Registrar shall forthwith, in accordance with the regulations, publish a notice inviting any person or organization interested and desiring to be heard to lodge, within 28 days after the date of the decision of the

Commission, notice of objection to the variation binding that person or organization.

“(4) If a notice of objection in relation to a variation is lodged by a person or organization in accordance with sub-section (3), the Commission shall hear the objection and, if it thinks fit, may declare that the variation is not binding on that person or organization.

“(5) Where the Commission makes a declaration under sub-section (4), the Registrar shall give notice of that fact in accordance with the regulations.

“(6) A variation that is a common rule under this section—

(a) is not enforceable before the expiration of the period of 28 days referred to in sub-section (3); and

(b) if a notice of objection in relation to the variation is lodged by a person or organization in accordance with that sub-section—is not enforceable against that person or organization before the hearing of the objection is finally disposed of.”.

Conference with State Authorities

13. Section 67 of the Principal Act is amended by adding at the end thereof the following sub-section:

“(2) Where it appears to the President to be desirable, he may confer with a State Industrial Authority in relation to the exercise, or the proposed exercise, of powers of the Commission by a member of the Commission as mentioned in section 22aa.”.

14. After Division 1 of Part III of the Principal Act the following Division is inserted:

“Division 1a—Industrial Matters—Commonwealth and Territory Employees

Interpretation

“70a. (1) In this Division, unless the contrary intention appears—

‘Commonwealth authority’ means—

(a) a body corporate established for a public purpose by or under a law of the Commonwealth or an Ordinance of the Australian Capital Territory; or

(b) a company or other body corporate incorporated under a law of the Commonwealth or of a State or Territory, being a company or other body corporate in which the Commonwealth has a controlling interest,

other than—

(c) the Australian Postal Commission, the Australian Telecommunications Commission or the Australian National Railways Commission;

(d) such of the following bodies, namely, the Australian Shipping Commission, the Australian Industry Development Corporation, the Australian National Airlines Commission, the Pipeline Authority and the Health Insurance Commission, as are not declared by the regulations to be Commonwealth authorities; or

(e) a body declared by the regulations to be a body to which this definition does not apply;

‘employee’ means a person employed, whether in a permanent capacity or otherwise, by an employer, but does not include—

(a) the holder of an office established by a law of the Commonwealth or of a Territory who is not an officer (other than an unattached officer) of the Australian Public Service or the Public Service of the Northern Territory;

(b) a person employed in the Public Service of an external Territory;

(c) a person who is an employee within the meaning of Division 3;

(d) a person appointed or engaged under Part III of the Commonwealth Teaching Service Act 1972; or

(e) a person employed under an Act, or a law of a Territory, that is prescribed for the purposes of this paragraph, other than an Act referred to in paragraph (a) or (b) of the definition of ‘employing authority’ or the law referred to in paragraph (f) of that definition;

‘employer’ means the Commonwealth, the Northern Territory, a Commonwealth authority or a Northern Territory authority;

‘employing authority’, in relation to an employee, means—

(a) in the case of an employee of the Commonwealth employed under the Public Service Act 1922—

(i) the Minister administering the Department in which the employee is employed; or

(ii) the Public Service Board;

(b) in the case of an employee of the Commonwealth employed under the Supply and Development Act 1939 or the Naval Defence Act 1910—

(i) the Minister administering the Act concerned; or

(ii) a person empowered by section 10 of the Supply and Development Act 1939 or section 42 of the Naval Defence Act 1910, as the case may be, to engage persons for employment;

(c) in the case of any other employee of the Commonwealth—the prescribed person or persons;

(d) in the case of an employee of a Commonwealth authority whose terms and conditions of employment are determined or approved by the Public Service Board—

(i) the Minister having responsibility in relation to the authority;

(ii) the principal officer of the authority; or

(iii) the Public Service Board;

(e) in the case of any other employee of a Commonwealth authority—

(i) the Minister having responsibility in relation to the authority; or

(ii) the principal officer of the authority;

(f) in the case of an employee of the Northern Territory employed under the law of the Territory relating to the Public Service of the Territory—

(i) the Minister of the Territory administering the Department in which the employee is employed; or

(ii) the Northern Territory Public Service Commissioner;

(g) in the case of any other employee of the Northern Territory—the prescribed person or persons;

(h) in the case of an employee of a Northern Territory authority whose terms and conditions of employment are determined or approved by the Northern Territory Public Service Commissioner—

(i) the Minister of the Territory having responsibility in relation to the authority;

(ii) the principal officer of the authority; or

(iii) the Northern Territory Public Service Commissioner; or

(j) in the case of any other employee of a Northern Territory authority—

(i) the Minister of the Territory having responsibility in relation to the authority; or

(ii) the principal officer of the authority;

‘employment’ includes service;

‘industrial dispute’ means a dispute (including a threatened, impending or probable dispute) as to industrial matters, and includes—

(a) a part of an industrial dispute;

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

(c) a question arising in relation to an industrial dispute;

‘industrial matter’ means any matter in relation to the salaries, wages, rates of pay or other terms or conditions of employment of employees

(including a question arising in relation to such a matter) and, without limiting the generality of the foregoing, includes—

(a) any question arising between 2 or more organizations of employees or within an organization of employees as to the rights, status or functions of the members of those organizations or of that organization or otherwise in relation to the employment of those members; and

(b) any question as to the demarcation of functions of employees or classes of employees, whether as between employers and employees or between members of different organizations;

‘industrial question’ means—

(a) an industrial dispute; or

(b) an industrial matter;

‘Northern Territory authority’ means—

(a) a body corporate established for a public purpose by or under a law of the Northern Territory; or

(b) a company or other body corporate incorporated under a law of the Commonwealth or of a State or Territory, being a company or other body corporate in which the Northern Territory has a controlling interest,

other than a body declared by the regulations to be a body to which this definition does not apply;

‘principal officer’, in relation to a Commonwealth authority or a Northern Territory authority, means—

(a) in the case of a body referred to in paragraph (a) of the definition of “Commonwealth authority” or of the definition of “Northern Territory authority”—the person who constitutes, or is acting as the person who constitutes, that body or, if the body is constituted by 2 or more persons, the person who is entitled to preside at any meeting of the body at which he is present; or

(b) in any other case—

(i) the person holding or acting in the principal executive office of the authority, by whatever name called; or

(ii) if there is no such office—the person holding or acting in the office declared by the regulations to be the principal office of the authority for the purposes of this sub-paragraph;

‘public service’ means employment by the Commonwealth, the Northern Territory, a Commonwealth authority or a Northern Territory authority.

“(2) For the purposes of this Division, a person shall not be taken to be an employee in respect of—

(a) employment as a member of the Defence Force;

(b) employment the conditions of which are subject to the jurisdiction of a tribunal established under the Fire Brigades Arbitral Tribunal Ordinance 1965, as amended, or the Prisons Ordinance 1950, as amended, of the Northern Territory, other than any such employment that is declared by the regulations to be employment to which this Division applies; or

(c) employment as a member of the Police Force of the Northern Territory.

“(3) Where regulations are made for the purposes of paragraph (b) of sub-section (2) declaring particular employment to be employment to which this Division applies, the regulations may make provision for any consequential and transitional matters arising from or connected with the declaration including, in particular, provision relating to the continued operation of any or all of the determinations, awards and orders made in relation to that employment by the relevant tribunal referred to in that paragraph.

“(4) The express references in this Division to officers do not imply that references to employees do not include references to officers.

Powers in respect of industrial disputes and industrial matters

“70b. The Commission is empowered—

(a) to prevent or settle industrial disputes by conciliation or arbitration; and

(b) to settle by conciliation, or to hear and determine, industrial matters, whether or not an industrial dispute exists in relation to those matters.

Exercise of powers

“70c. (1) Subject to this Division, the powers of the Commission in respect of industrial questions are exercisable by the Commission constituted by the Presidential Member assigned by the President for the purposes of this Division or, subject to any directions of that Presidential Member, by a Commissioner assigned by the President for the purposes of this Division, and not otherwise.

“(2) Subject to sub-section (3), the powers of the Commission in respect of a particular industrial question may be exercised by the President or by the Presidential Member assigned by the President for the purpose.

“(3) In relation to industrial questions, the powers of the Commission under sections 31 and 34, sub-section 34a (4) and sections 35 and 36a are exercisable by a Full Bench, and not otherwise.

“(4) Where a Commissioner proposes, in the exercise of powers under this Division, to make an award, or certify a memorandum of agreement, making provision for, or altering, the rates of wages or the conditions applicable in relation to employees, the Commissioner shall, before making the award or certifying the memorandum of agreement, consult with the Presidential Member who is assigned by the President for the purposes of this Division.

Application of Division 1

“70d. (1) Subject to this Division, Division 1 (other than section 44b) extends to and in relation to the powers and functions of the Commission under this Division, proceedings under this Division and awards made under this Division.

“(2) In the application of Division 1, either in accordance with sub-section (1) or by virtue of any other provision of this Division—

(a) references to industrial disputes shall be read as references to industrial questions;

(b) references to the parties to an industrial dispute shall be read, in relation to the powers of the Commission under paragraph (b) of section 70b, as including references to employees to whose employment the industrial question relates, employers of such employees and organizations of which any such employees are members;

(c) references to arbitration shall be read as including references to the hearing and determination of industrial matters; and

(d) references to the relevant Presidential Member shall be read as references to the Presidential Member assigned by the President for the purposes of this Division.

Employer to act through employing authority

“70e. Notwithstanding anything to the contrary in this Act or any other law, for the purposes of—

(a) the provisions of this Division;

(b) any other provisions of this Act in their application under or by virtue of this Division;

(c) any proceedings under or arising out of any of the provisions referred to in paragraphs (a) and (b) before the Commission, the Flight Crew Officers Industrial Tribunal or any Court; and

(d) any award made under any of the provisions referred to in paragraphs (a) and (b),

an employer of an employee shall not act except by an employing authority of the employee acting on behalf of the employer and, in particular, but without limiting the generality of the foregoing—

(e) anything done by any employing authority of an employee has effect as if it had been done by the employer of the employee; and

(f) anything served on, or otherwise furnished or notified to, any employing authority of an employee has effect as if it had been served on, or furnished or notified to, the employer of the employee.

Representation

“70f. (1) This section has effect notwithstanding anything to the contrary in section 63, 88ze or 117a.

“(2) In proceedings under this Act before the Commission, the Flight Crew Officers Industrial Tribunal or the Court (other than proceedings under section 113 or proceedings in respect of an offence against this Act), an employing authority may be represented by an officer of the Australian Public Service or—

(a) where the employing authority is a Minister and the employer concerned is a Commonwealth authority—by an officer of that authority;

(b) where the employing authority is a Minister of the Northern Territory—

(i) if the employer concerned is the Northern Territory—by an officer of the Public Service of that Territory; or

(ii) if the employer concerned is a Northern Territory authority—by an officer of that authority;

(c) where the employing authority is the Northern Territory Public Service Commissioner—by an officer of the Public Service of that Territory;

(d) where the employing authority is the principal officer of a Commonwealth authority—by an officer of that authority; or

(e) where the employing authority is the principal officer of a Northern Territory authority—by an officer of that authority.

“(3) In proceedings under this Act before the Commission, an employing authority may be represented by counsel, solicitor or paid agent—

(a) with the leave of the Commission and with the consent of all parties;

(b) with the leave of the Commission, granted upon application made by a party, on the ground that, having regard to the subject-matter of the proceedings, there are special circumstances which make it desirable that the parties and interveners may be so represented; or

(c) with the leave of the Commission, if the Minister is a party to or has intervened in the proceedings.

“(4) In proceedings under this Act before the Flight Crew Officers Industrial Tribunal—

(a) an employing authority may be represented by counsel, solicitor or paid agent with the leave of the Tribunal and with the consent of all parties; or

(b) if the Minister is a party to or has intervened in the proceedings—

(i) the Minister may be represented by counsel or solicitor or by an officer of the Australian Public Service authorized by the Minister to represent him; and

(ii) an employing authority may, with the leave of the Tribunal, if the Minister is represented in accordance with sub-paragraph (i), be represented by counsel, solicitor or paid agent.

Transfer of questions to be dealt with under other provisions of this Act

“70g. (1) Where—

(a) an industrial question is before the Commission as constituted under this Division otherwise than by the President; and

(b) it appears to the Commission that the question should be dealt with by the Commission as constituted otherwise than under this Division or by the Flight Crew Officers Industrial Tribunal,

the Commission shall consult with the President on the question whether the industrial question should be so dealt with.

“(2) Where—

(a) the Commission consults with the President in relation to an industrial question under sub-section (1); or

(b) an industrial question is before the Commission as constituted by the President under this Division,

the President may direct that the industrial question be dealt with by the Commission constituted, as specified, under a specified Division of this Part other than this Division (including the Commission as constituted by himself) or by the Flight Crew Officers Industrial Tribunal, and, in that event, the Commission as so constituted or the Tribunal, as the case may be—

(c) has, by force of this sub-section, the same powers in relation to the industrial question as if it were the Commission as constituted under this Division;

(d) shall deal with the industrial question; and

(e) may have regard to any evidence given and any arguments adduced in relation to the industrial question in arbitration proceedings before the Commission as constituted under this Division.

“(3) The powers conferred on the President by this section are in addition to, and not in derogation of, the powers conferred on him by sections 23 and 44a.

“(4) In this section, ‘industrial question’ includes a part of an industrial question.

Transfer of matters to be dealt with under this Division

“70h. (1) Where—

(a) a matter is before the Commission (not being a Full Bench) as constituted under any provision of this Part other than this Division or before the Flight Crew Officers Industrial Tribunal; and

(b) it appears to the Commission or the Tribunal, as the case may be, that the matter—

(i) is an industrial question within the meaning of this Division; and

(ii) should be dealt with under this Division,

the succeeding provisions of this section apply.

“(2) The Tribunal, or, where the matter is before the Commission as constituted otherwise than by the President, the Commission, shall consult with the President on the question whether the matter should be dealt with under this Division.

“(3) If the President is satisfied that the matter is an industrial question within the meaning of this Division, he may direct that the matter be dealt with under this Division, and, in that event, the Commission as constituted under this Division—

(a) shall deal with the matter; and

(b) may have regard to any evidence given and any arguments adduced in relation to the matter in arbitration proceedings before the Commission as otherwise constituted or before the Tribunal, as the case may be.

“(4) In this section, ‘matter’ means an industrial dispute, industrial matter or industrial question, as defined by the relevant provision of this Act, and includes a part of a matter.

Orders in relation to industrial action

“70j. (1) Where, in relation to an industrial question, it appears to the Commission that industrial action is occurring or is likely to occur, the Commission may, after hearing such evidence (if any) as it thinks fit, make such orders as it thinks necessary or desirable for putting an end to, or preventing the occurrence of, the industrial action or preventing the occurrence of further industrial action or such other orders as it thinks necessary or desirable by reason of the occurrence or likely occurrence of the industrial action.

“(2) The powers conferred on the Commission by this section are in addition to, and not in derogation of, the powers conferred on the Commission by any other provision of this Act.

Common rules

“70k. (1) The Commission may, if it appears to be necessary or expedient for the purpose of preventing or settling an industrial dispute with which it is dealing or of preventing further industrial disputes, declare that any term of an award shall, subject to such conditions, exceptions and limitations as are specified in the declaration, be a common rule of the whole or any specified part or branch of public service.

“(2) Before a common rule is declared under sub-section (1), the Commission shall, by notification published in the Gazette and in such other publications (if any) as the Commission thinks fit, specifying the industrial matter in relation to which it is proposed to declare a common rule, make known that all persons and organizations interested and desiring to be heard may, on or before a specified date, appear or be represented before the Commission, and the Commission shall hear all interested persons and organizations so appearing or represented.

“(3) Section 49a has effect in relation to a common rule under this section as if the references in sub-section (1) of that section to an industry in a Territory were references to the whole or any part or branch of public service.”.

Application of Division 1

15. Section 74 of the Principal Act is amended by inserting after paragraph (2) (a) the following paragraph:

“(aa) a reference in section 44b to the powers of the Commission under this Act that are exercisable by a Commissioner shall be read as a reference to the powers of the Commission under this Act that, by virtue of section 73, are exercisable by a Commissioner assigned by the President for the purposes of this Division;”.

Repeal of section 79

16. Section 79 of the Principal Act is repealed.

Application of Division 1

17. Section 80 of the Principal Act is amended by inserting in sub-section

(1) “(other than section 44b)” after “Division 1”.

Application of Division 1

18. Section 88 of the Principal Act is amended by inserting after paragraph (2) (a) the following paragraph:

“(aa) a reference in section 44b to the powers of the Commission under this Act that are exercisable by a Commissioner shall be read as a reference to the powers of the Commission under this Act that, by virtue of section 84, are exercisable by a Commissioner assigned by the President for the purposes of this Division;”.

Application of Division 1

19. Section 88d of the Principal Act is amended by inserting in sub-section (1) “(other than section 44b)” after “Division 1”.

Power to establish Registries and appoint Registrars

20. Section 127 of the Principal Act is amended by omitting from paragraph (c) “Deputy Industrial Registrars” and substituting “such Deputy Industrial Registrars as are necessary from time to time”.

Registers of organizations

21. Section 131 of the Principal Act is amended by omitting sub-section (2) and substituting the following sub-section:

“(2) A Deputy Industrial Registrar who has charge of a Registry shall keep at that Registry a register of all organizations registered under this Act at that Registry.”.

Registration of organizations

22. (1) Section 132 of the Principal Act is amended by omitting sub-paragraph (4) (b) (i) and substituting the following sub-paragraph:

“(i) in the case of a person so employed or engaged in New South Wales—is, or is able to become, a member of an industrial union of employees within the meaning of the Industrial Arbitration Act 1940 of that State or that Act as amended from time to time;”.

(2) Section 132 of the Principal Act is amended by adding at the end thereof the following sub-section:

“(5) Where—

(a) immediately before the date of commencement of the amendments of this section made by the Conciliation and Arbitration Amendment Act (No. 3) 1977, a person was a member of an organization, being an association referred to in paragraph (1) (b) or (c) of this section as in force immediately before that date; and

(b) on and after that date, the person was not a person referred to in paragraph (1) (b) or (c) of this section as in force on and after that date, but purported to continue to be a member of the organization,

then—

(c) the amendments shall be deemed—

(i) not to have applied in relation to the person at any time before the date of commencement of this sub-section; and

(ii) if the person still purported to be a member of the organization immediately before the date of commencement of this sub-section—not to apply in relation to the person on and after that date until the person ceases to be a member of the organization; and

(d) anything done or purported to be done at any time by or in relation to the person or the organization shall be deemed for all purposes to have been, and to be, valid accordingly.”.

(3) Section 132 of the Principal Act as amended by sub-section (2) is amended by adding at the end thereof the following sub-section:

“(6) Where, immediately before the commencement of Division 1a of Part III, an association of less than 100 employees in an industry in the Public Service, within the meaning of the Public Service Arbitration Act 1920, was an organization registered under this Act, the registration of the organization shall not be cancelled by reason of the operation of paragraph (1) (b) unless the number of the members of the organization falls below 60% of the number of persons who are employees in that industry by virtue of sub-section 4 (7).”.

Prescribed offences

23. Section 132f of the Principal Act is amended—

(a) by omitting paragraph (1) (b) and substituting the following paragraph:

“(b) an offence under section 46, 158m, 160, 166, 169, 169a, 170a or 171 or an offence under regulation 146as of the Conciliation and Arbitration Regulations;”;

(b) by omitting from paragraph (1) (d) “or reckless” (wherever occurring); and

(c) by inserting after sub-section (2) the following sub-section:

“(2a) A reference in section 132b, 132c, 132d or 132e to a person being convicted of a prescribed offence does not include a reference to a person being convicted of an offence referred to in paragraph (1) (d) unless the person has served, or is serving, a sentence of imprisonment in respect of the offence.”.

Rules to provide for elections, secret ballots and certain other matters

24. Section 133 of the Principal Act is amended—

(a) by omitting from sub-section (1) “organizations” (third occurring) and substituting “organization”;

(b) by omitting from sub-paragraph (1) (a) (ii) “an office the duties of which are of a full-time nature” and substituting “a full-time office”;

(c) by adding at the end of paragraph (1) (db) “, except in accordance with provisions made in pursuance of sub-section (4e)”;

(d) by inserting after sub-section (4d) the following sub-sections:

“(4e) The rules of an association or organization may include provisions to the effect that, where a person elected to a full-time office will attain the retirement age within 12 months after the expiration of the period for which he is elected, he may hold that office, without being re-elected, until he retires.

“(4f) Where the rules of an association or organization include provisions of the kind referred to in sub-section (4e), the rules—

(a) shall include provisions to the effect that, where a candidate duly nominated for election to a full-time office is a person who, if elected, will hold that office in the circumstances mentioned in that sub-section, the ballot papers for the election shall indicate the maximum period for which, if elected, he may so hold office; and

(b) may include provisions to the effect that, where a person holding a full-time office immediately before the commencement of this sub-section will attain the retirement age within 12 months after the expiration of his current period of office, he may hold that office, without being re-elected, until he retires.”; and

(e) by adding at the end thereof the following sub-section:

“(7) In this section—

‘full-time office’ means an office the duties of which are of a full-time nature;

‘retirement age’, in relation to a person, in relation to an office, means the retirement age applicable to that person, in relation to that office, under the rules of the association or organization concerned or, where the rules provide for a minimum retirement age and a maximum retirement age, that maximum retirement age.”.

25. After section 133a of the Principal Act the following section is inserted:

Casual vacancies

“133ab. (1) This section has effect notwithstanding any other provision of this Act.

“(2) Subject to this section, the rules of an organization may provide for the filling of a casual vacancy in an office in such manner as is provided in the rules.

“(3) Rules made in pursuance of sub-section (2) shall include provision to the effect that a casual vacancy may be filled—

(a) where the total period of office in respect of which the person who held the office immediately before the vacancy was elected or appointed (in this sub-section referred to as the ‘original period’) does not exceed 12 months—for the unexpired part of the original period; or

(b) in any other case—for so much of the unexpired part of the original period as does not exceed three-quarters of the original period.

“(4) Where a vacancy in an office is filled by virtue of rules made in pursuance of sub-section (2), the person so filling the vacancy shall be taken, for the purposes of the provisions of this Act (other than this section) and the provisions of the rules of the organization (other than the first-mentioned rules), to have been elected to that office in accordance with those provisions.

“(5) Where—

(a) a vacancy in an office in an organization is filled by a person by virtue of rules made in pursuance of sub-section (2);

(b) the rules of the organization provide for a collegiate electoral system under which the holders of certain offices are entitled to be members of a particular electoral college in the manner described in sub-section 4 (5); and

(c) as a result of his so filling the vacancy—

(i) he is a member of that electoral college; and

(ii) he is elected by and from that college to one of those offices,

his holding of the last-mentioned office by reason of that election does not entitle him to be further elected by and from that electoral college to any of those offices (including that last-mentioned office).

“(6) In this section—

‘electoral college’ means a body of persons by and from whom persons are elected at any stage of a collegiate electoral system subsequent to the first stage;

‘organization’ includes an association applying for registration as an organization.”.

Rules to provide conditions for loans, grants and donations by organizations

26. Section 133b of the Principal Act is amended by inserting after sub-section (1) the following sub-sections:

“(1a) Notwithstanding sub-section (1), the rules of an association or organization, or of any branch, as the case may be, may provide for a person authorized by the rules to make a loan, grant or donation of an amount not exceeding $3,000 to a member of the association, organization or branch, if the loan, grant or donation—

(a) is for the purpose of relieving the member or any of his dependants from severe financial hardship; and

(b) is subject to a condition to the effect that, if the committee of management of the association or organization, or the branch, as the case may be, at the next meeting of the committee, does not approve the loan, grant or donation, it shall be repaid as determined by the committee.

“(1b) In considering whether to approve a loan, grant or donation made under sub-section (1a), the committee of management of the association or organization, or of the branch, as the case may be, shall have regard to—

(a) whether the loan, grant or donation was made in accordance with the rules of the association or organization, or of the branch, as the case may be; and

(b) in the case of a loan—

(i) whether the security, if any, given for the repayment of the loan is satisfactory; and

(ii) whether the arrangements for the repayment of the loan are satisfactory.”.

Alteration of name or rules of organization

27. Section 139 of the Principal Act is amended by adding at the end thereof the following sub-sections:

“(7) The regulations may make provision for enabling the rules of an organization to provide for the alteration of the rules by the committee of management of the organization.

“(8) Regulations made in pursuance of sub-section (7)—

(a) shall include provisions for the purpose of ensuring that, where rules of an organization are made in pursuance of the regulations, the rules of the organization shall provide at all times for adequate control of the committee of management of the organization by the members of the organization; and

(b) may, in relation to any rules, specified rules, or rules included in specified classes of rules, made at any time, or at a specified time or specified times, before the making of the regulations, include provisions—

(i) for giving the rules effect, and deeming them to have had effect at all times, as if they had been made in accordance with the regulations; and

(ii) for consequential and transitional matters.”.

Interpretation

28. Section 158aa of the Principal Act is amended by adding “and is a competent person within the meaning of section 158ae” at the end of paragraph (b) of the definition of “auditor”.

Application of Part with respect to organizations divided into branches

29. Section 158aaa of the Principal Act is amended—

(a) by omitting from sub-section (1) “this sub-section” (wherever occurring) and substituting “this section and sub-section 158ag (4)”; and

(b) by adding at the end thereof the following sub-sections:

“(3) If, upon application by an organization divided into branches, the Registrar is satisfied—

(a) that the committee of management of the organization has, by the rules of the organization, or by established practice not inconsistent with the rules, the management and control of the assets of the organization (including assets of the branches of the organization) or otherwise has effective control over the financial management of the organization; and

(b) that, if sub-sections (1) and (2) did not apply in relation to the organization, it would be able to comply with the requirements of this Part,

he may issue to the organization a certificate to that effect, and, unless and until the certificate is revoked under sub-section (4), sub-sections (1) and (2) do not apply in relation to the organization.

“(4) The Registrar may at any time, by notice in writing, revoke a certificate issued to an organization under sub-section (3) if he ceases to be satisfied, in relation to the organization, as to the matters referred to in that sub-section.”.

Organization to keep proper accounting records

30. Section 158ac of the Principal Act is amended by inserting after sub-section (1a) the following sub-section:

“(1b) If an organization keeps the accounting records referred to in sub-section (1) on an accrual basis, it may, if it so wishes, keep the accounting records for its membership subscriptions separately on a cash basis.”.

Auditors of organizations

31. Section 158ae of the Principal Act is amended—

(a) by omitting from sub-section (1a) “all the members of which are competent persons” and substituting “at least one of whose members is a competent person”;

(b) by omitting from sub-section (1b) “each” and substituting “a”; and

(c) by omitting from sub-section (1d) “, or becomes aware that another member of the firm has ceased to be, a competent person” and substituting “a competent person and he becomes aware that no other member of the firm is a competent person”.

Removal of auditor from office

32. Section 158afb of the Principal Act is amended—

(a) by omitting “his term of appointment unless his removal is effected” and substituting “the term of appointment of the auditor except”; and

(b) by omitting “he” (wherever occurring) and substituting “the auditor”.

Copies of report and audited accounts to be supplied to members and presented to meetings

33. Section 158ag of the Principal Act is amended—

(a) by omitting from sub-section (1) “28 days” and substituting “56 days”;

(b) by inserting after sub-section (1) the following sub-section:

“(1a) If in accordance with the rules of an organization, the committee of management of the organization resolves to supply to the members of the organization a summary of the report, accounts and statements referred to in sub-section (1), the organization may comply with sub-section (1) by supplying free of charge to the members of the organization a copy of such a summary, if—

(a) the organization has filed with the Registrar a copy of the summary;

(b) the auditor has certified that the summary is, in his opinion, a fair and accurate summary of the report, accounts and statements;

(c) the summary contains a statement to the effect that the organization will supply free of charge a copy of the report, accounts and statements to any member who so requests; and

(d) where particulars of a deficiency, failure or shortcoming in respect of a matter referred to in sub-section 158af (5) are set out in the report—the summary contains those particulars.”;

(c) by inserting in sub-section (2) “, or with a request made by a member of an organization in pursuance of paragraph (1a) (c),” after “sub-section (1)”;

(d) by adding at the end of sub-section (3) “, or the summary referred to in sub-section (1a)”; and

(e) by omitting sub-section (4) and substituting the following sub sections

“(4) Where a branch of an organization publishes a journal of the branch that is available to the members of the branch free of charge, the organization may comply with sub-section (1) in respect of those members by publishing in the journal the report, accounts and statements referred to in that sub-section or the summary referred to in sub-section (1a).

“(4a) Subject to sub-section (4b), an organization shall cause the report, accounts and statements referred to in sub-section (1) to be presented—

(a) within the period (in this sub-section referred to as the ‘relevant period’) commencing on the eighth day after the report, accounts and statements are supplied to the members and ending on the expiration of the period of 28 days (or such longer period as the Registrar allows) after the expiration of the period referred to in sub-section (1)—to a general meeting of the members of the organization or a meeting of the committee of management of the organization; or

(b) if such a meeting is not due to be held within the relevant period—to the next meeting of the committee of management held after the relevant period.

“(4b) Where—

(a) the report of an auditor to an organization sets out particulars of a deficiency, failure or shortcoming in respect of a matter referred to in sub-section 158af (5); and

(b) neither a general meeting of the members of the organization nor a meeting of the committee of management of the organization is due to be held within the relevant period referred to in paragraph (4a) (a),

the organization shall, within that period, cause the report, accounts and statements referred to in sub-section (1) to be presented to a meeting of the committee of management of the organization convened for the purpose.”;

(f) by omitting from sub-section (5) “(4)” and substituting “(4a) or (4b), whichever is applicable,”; and

(g) by inserting in sub-section (6) “, or in the summary referred to in sub-section (1a)” after “sub-section (1)”.

Copies of reports, &c, to be filed with Registrar

34. Section 158ah of the Principal Act is amended—

(a) by omitting from sub-section (1) “the meeting referred to in sub-section (4) of section 158ag” and substituting “the relevant meeting referred to in sub-section 158ag (4a) or (4b), whichever is applicable”;

(b) by omitting from sub-section (3) “Where” and substituting “Subject to sub-section (3a), where”; and

(c) by inserting after sub-section (3) the following sub-section:

“(3a) The Registrar is not required by sub-section (3) to investigate a deficiency, failure or shortcoming referred to in paragraph (3) (a) if—

(a) it consists solely of the fact that the organization has kept accounting records for its membership subscriptions separately on a cash basis as provided in sub-section 158ac (1b); or

(b) after consultation with the organization and the auditor, he is satisfied that the deficiency, failure or shortcoming is trivial or will be remedied in the succeeding financial year.”.

Auditor entitled to attend meetings at which report presented

35. Section 158ak of the Principal Act is amended by omitting sub-sections (1) and (2) and substituting the following sub-section:

“(1) An auditor or a person authorized by him for the purposes of this section is entitled to attend, and to be heard at, any part of a meeting of an organization, or of the committee of management of an organization, at which—

(a) the report of the auditor, or any accounts or statements to which the report relates, are to be presented or considered; or

(b) any other business of the meeting that concerns the auditor or person in his capacity as auditor or as a person authorized by the auditor, as the case may be, is to be conducted.”.

Offences in relation to obstruction, &c, of auditors

36. Section 158al of the Principal Act is amended—

(a) by inserting in sub-section (3) “a part of” after “attending”;

(b) by inserting in paragraph (4) (a) “a part of” after “attends”; and

(c) by inserting in paragraph (4) (b) “part of a” after “in the course of that”.

Applications for inquiries respecting elections

37. Section 159 of the Principal Act is amended—

(a) by omitting from sub-section (4) “conducted under section 170” and substituting “referred to in sub-section (3)”;

(b) by omitting from paragraph (4) (c) “the inquiry” and substituting “an inquiry into an election conducted under section 170”; and

(c) by omitting from sub-section (6) “sub-section (4) of section 168” and substituting “sub-section 170a (4)”.

Registrar to conduct elections upon request

38. Section 170 of the Principal Act is amended—

(a) by inserting in sub-section (1) “or a Deputy Industrial Registrar” after “Registrar”;

(b) by omitting sub-section (3) and substituting the following sub-sections:

“(3) The regulations may make provision with respect to the times at which, and the manner in which, requests may be made under this section.

“(3a) The limitations imposed by paragraph 198 (1) (e) on the penalties that may be prescribed by the regulations do not prevent regulations made for the purposes of sub-section (3) from requiring a person to make a statutory declaration.”;

(c) by inserting in sub-section (4) “or Deputy Industrial Registrar, as the case may be,” after “Registrar”;

(d) by inserting in sub-section (5) “or Deputy Industrial Registrar, as the case may be,” after “Registrar” (first occurring); and

(e) by omitting from sub-section (5) “a Deputy Industrial Registrar or other officer” and substituting “an officer”.

Variation of agreement to conform with common rule

39. Section 179 of the Principal Act is amended by inserting “or employment to which Division 1a of Part III applies” after “Territory”.

Repeal of Public Service Arbitration Act

40. The Acts specified in Schedule 1 are repealed.

Consequential amendments

41. The Acts specified in Schedule 2 are amended as set out in that Schedule.

Formal amendments

42. The Principal Act is amended as set out in Schedule 3.

Transitional

43. (1) In this section—

“determination” has the meaning given to that expression by sub-section 3 (1) of the previous law, and includes an interpretation of a determination;

“prescribed date” means the date of commencement of this section; “previous law” means the Public Service Arbitration Act 1920.

(2) Notwithstanding the repeal of the previous law by this Act—

(a) a determination in force under the previous law immediately before the prescribed date continues in effect, and a determination made by virtue of paragraph (b) has effect, as if it were an award made under Division 1a of Part III of the Principal Act;

(b) a claim, application, appeal or other matter that was pending under the previous law immediately before the prescribed date may be dealt with as if the previous law had not been repealed;

(c) a conference in respect of which directions had been given under section 12e of the previous law and which had not been held or completed before the prescribed date may be held or completed, and those directions have effect, as if the previous law had not been repealed; and

(d) in relation to a determination made before the prescribed date by virtue of sub-section 22 (2) of the previous law, section 22 of that law continues to apply as if that law had not been repealed.

(3) In relation to proceedings before the Commission by virtue of sub-section (2), sections 37 and 44a of the Principal Act have effect as if the amendments of those sections made by this Act had not been made.

—————

SCHEDULE 1 Section 40

ACTS REPEALED

Arbitration (Public Service) Act 1920

Arbitration (Public Service) Act 1928

Arbitration (Public Service) Act 1929

Public Service Arbitration Act 1952

Public Service Arbitration Act 1955

Public Service Arbitration Act 1956

Public Service Arbitration Act (No. 2) 1956

Public Service Arbitration Act 1959

Public Service Arbitration Act 1969

Public Service Arbitration Act 1972

Public Service Arbitration Amendment Act 1978

—————

SCHEDULE 2 Section 41

CONSEQUENTIAL AMENDMENTS

SCHEDULE 2—continued

——————

SCHEDULE 3 Section 42

FORMAL AMENDMENTS

SCHEDULE 3—continued

SCHEDULE 3—continued

SCHEDULE 3—continued

SCHEDULE 3—continued

SCHEDULE 3—continued

SCHEDULE 3—continued

SCHEDULE 3—continued

SCHEDULE 3—continued