Industrial Relations Legislation Amendment Act (No. 2) 1992

No. 215 of 1992

TABLE OF PROVISIONS

PART 1—PRELIMINARY

TABLE OF PROVISIONS—continued

Industrial Relations Legislation Amendment Act (No. 2) 1992

No. 215 of 1992

An Act to amend the law about industrial relations, and for other purposes

[Assented to 24 December 1992]

The Parliament of Australia enacts:

PART 1—PRELIMINARY

Short title

1. This Act may be cited as the Industrial Relations Legislation Amendment Act (No. 2) 1992.

Commencement

2.(1) Parts 1 and 3 commence on the day on which this Act receives the Royal Assent.

(2)     Parts 9, 10 and 11 are taken to have commenced on 18 February 1991.

(3)     The remaining provisions commence on the 28th day after the day on which this Act receives the Royal Assent.

PART 2—AMENDMENTS OF THE INDUSTRIAL RELATIONS ACT 1988

Principal Act

3. In this Part, “Principal Act” means the Industrial Relations Act 19881.

Objects of Act

4. Section 3 of the Principal Act is amended by inserting after paragraph (b) the following paragraph:

Particular powers of Commission

5. Section 111 of the Principal Act is amended:

(b)    by inserting after subsection (1) the following subsections:

“(1A) Subparagraph (1)(g)(iii) does not apply to proceedings so far as they may affect terms and conditions of employment of a particular kind that are applicable to a particular class of employees, if:

(b)     terms and conditions of that kind and application:

(iii) are not regulated by an award under this Act.

In this subsection:

‘employment agreement’ means an agreement that:

(a)     was entered into under a State law; and

“(1B) In considering whether to make an award (other than an interim or provisional award) under subsection (1) regulating terms and conditions of employment of a kind and application to which subsection (1A) applies, the Commission:

“(1C) Subsection (1B) does not prevent the Commission from taking account of the views of the employees ascertained in any other way.”;

(c) by adding at the end the following subsection:

“(4) In this section:

‘compulsory arbitration’ means the power to regulate terms and conditions of employment by arbitration:

‘State arbitrator’ means a State industrial authority that has, or at the relevant time had, the power, or powers that include the power, to regulate terms and conditions of employment by compulsory arbitration.”.

6.(1) Section 202 of the Principal Act is repealed and the following section is substituted:

Agreement between organisation and State union

“202.(1) The rules of an organisation of employees may authorise the organisation to enter into agreements in the prescribed form with State unions to the effect that members of the State union concerned who are ineligible State members are eligible to become members of the organisation under the agreement.

“(2) If, under rules made under subsection (1), an organisation enters into an agreement with a State union, the organisation must lodge a copy of the agreement in the Industrial Registry.

“(3) The agreement does not come into force unless and until the Industrial Registrar enters particulars of the agreement in the register kept under paragraph 63(1)(a).

“(4) The Industrial Registrar must not enter particulars of the agreement in that register unless he or she has been directed by a designated Presidential Member to do so.

“(5) A designated Presidential Member must not give such a direction to the Industrial Registrar unless the Presidential Member is satisfied that the agreement:

(a) is not contrary to:

(i) any object of this Act; or

(b) was entered into only for the purpose of:

“(6) An organisation is not entitled to represent under this Act the industrial interests of persons who are eligible for membership of the organisation only under an agreement entered into under rules made under subsection (1).

“(7) If a person who became a member of an organisation under an agreement entered into under rules made under subsection (1) later becomes eligible for membership of the organisation under its eligibility rules, the organisation is not entitled to represent the industrial interests of the person until a record of the person’s eligibility is entered in the register kept under paragraph 268(1)(a).

“(8) If it appears to a designated Presidential Member:

(a)     on his or her own initiative; or

(b)     on application by an interested person;

that an agreement entered into under rules made under subsection (1) may no longer be operating for a purpose mentioned in subparagraph (5)(b)(i) or (ii), the Presidential Member must give to the parties to the agreement an opportunity to make oral or written submissions as to whether the agreement is still operating for such a purpose.

“(9) If, after considering any such submissions and, in the case of an application under paragraph (8)(b), the matters raised by the applicant, the designated Presidential Member is satisfied that the agreement is no longer operating for such a purpose, the Presidential Member may, by writing signed by him or her, terminate the agreement.

“(10) The Industrial Registrar must as soon as practicable:

“(11) If an organisation and a State union agree, in writing, to terminate an agreement entered into under rules made under subsection (1):

“(12) The termination of an agreement takes effect when particulars of the termination are entered in the register as mentioned in paragraph (10)(b) or (11)(b) and, when the termination takes effect, persons who became members of the organisation under the agreement (other than a person whose eligibility for membership of the organisation under its eligibility rules is recorded as mentioned in subsection (7)) cease to be members of the organisation.

“(13) In this section:

‘ineligible State members’, in relation to an organisation, means the members of a State union who, under the eligibility rules of the organisation, are not eligible to be members of the organisation;

‘State Act’ means:

(a)     the Industrial Relations Act 1991 of New South Wales; or

(b)     the Industrial Relations Act 1990 of Queensland; or

(c)     the Industrial Relations Act 1979 of Western Australia; or

(d)     the Industrial Relations Act (S.A.) 1972 of South Australia;

‘State union’, in relation to an organisation, means:

and which is composed substantially of persons who, under the eligibility rules of the organisation, are eligible to be members of the organisation.”.

(2)     Any rules of an organisation of employees that were made under subsection 202(1) of the Principal Act and were in force immediately before the commencement of this section are taken to have been made under subsection 202(1) of the Principal Act as amended by this section.

(3)     If an agreement was entered into before the commencement of this section by an organisation of employees with a State union under rules referred to in subsection (2), the agreement is taken to have been entered into under those rules as they have effect under that subsection and:

7. After section 253T of the Principal Act the following section is inserted:

Effect of amalgamation on agreement under section 202

“253TA.(1) Unless the scheme of a proposed amalgamation otherwise provides, an agreement in force under section 202 to which a de-registered organisation was a party continues in force on and from the amalgamation day as if references in the agreement to the de-registered organisation were references to the amalgamated organisation.

“(2) The Industrial Registrar must enter in the register kept under paragraph 63(1)(a) particulars of the effect of the amalgamation on the agreement.”.

Offences in relation to Commission

8. Section 299 of the Principal Act is amended:

(a)     by adding “or” at the end of paragraphs (1)(a) and (b);

PART 3—AMENDMENT OF THE INDUSTRIAL RELATIONS LEGISLATION AMENDMENT ACT 1992

Principal Act

9. In this Part, “Principal Act” means the Industrial Relations Legislation Amendment Act 19922.

Interpretation

10. Section 4 of the Principal Act is amended by omitting paragraph (d).

PART 4—AMENDMENTS OF THE LONG SERVICE LEAVE (COMMONWEALTH EMPLOYEES) ACT 1976

Principal Act

11. In this Part, “Principal Act” means the Long Service Leave (Commonwealth Employees) Act 19763.

Interpretation

12. Section 4 of the Principal Act is amended:

(a) by omitting from paragraph (e) of the definition of “approving

authority” in subsection (1) “Public Service Board” and substituting “Secretary to the Department”;

13. Section 9 of the Principal Act is repealed and the following sections are substituted:

Delegation by Secretary

“9.(1) The Secretary to the Department (‘the Secretary’) may, by writing signed by the Secretary, delegate to an officer of or person employed in the Department, to the Secretary of another Department or to the chief executive officer of a public authority of the Commonwealth, any of the Secretary’s functions or powers under this Act.

“(2) A delegation of a function or power under subsection (1):

“(3) If the Secretary has delegated a function or power under subsection (1), the Secretary may issue guidelines to the delegate with respect to the performance of the function or the exercise of the power.

Sub-delegation by delegate of Secretary

“9A.(1) If the Secretary to the Department (‘the Secretary’) delegates a function or power under section 9 to the Secretary of another Department, the delegate may, unless the instrument of delegation prohibits it, sub-delegate the function or power, by writing signed by the delegate, to an officer of or person employed in that Department.

“(2) If the Secretary delegates a function or power under section 9 to the chief executive officer of a public authority of the Commonwealth, that chief executive officer may, unless the instrument of delegation prohibits it, sub-delegate the function or power, by writing signed by the delegate, to an officer or employee of the authority.

“(3) A function or power sub-delegated under subsection (1) or (2), when performed or exercised by the sub-delegate, is taken for the purposes of this Act to have been performed or exercised by the Secretary.

“(4) A sub-delegation of a function or power under subsection (1) or (2):

(b) subject to paragraph (c), continues in force even though:

“(5) If:

(b)     the delegate has sub-delegated the function or power; the delegate:

(c)     must issue corresponding guidelines to the sub-delegate; and

“(6) Subject to the preceding provisions of this section, sections 34AA, 34AB and 34A of the Acts Interpretation Act 1901 apply to a power to sub-delegate under this section, and to a sub-delegation given under such a power, in the same way as they would apply if the power were a power to delegate and the sub-delegation were a delegation.”.

Continuity of service

14. Section 12 of the Principal Act is amended by omitting from subparagraph (3)(a)(i) “Public Service Board” and substituting “Secretary to the Department”.

PART 5—AMENDMENTS OF THE MATERNITY LEAVE (COMMONWEALTH EMPLOYEES) ACT 1973

Principal Act

15. In this Part, “Principal Act” means the Maternity Leave (Commonwealth Employees) Act 19734.

Absence from duty in relation to childbirth

16. Section 6 of the Principal Act is amended by omitting from subsections (4C) and (4F) “the Board” and substituting “the Secretary to the Department”.

Other applications to resume duty

17. Section 7A of the Principal Act is amended:

Officers of the Public Service on maternity leave

18. Section 8 of the Principal Act is amended:

(b)    by omitting subsection (3).

19. Section 11 of the Principal Act is repealed and the following sections are substituted:

Delegation by Secretary

“11.(1) The Secretary to the Department (‘the Secretary’) may, by writing signed by the Secretary, delegate to an officer of or person employed in the Department, to the Secretary of another Department or to the chief executive officer of a prescribed authority, any of the Secretary’s functions or powers under this Act.

“(2) A delegation of a function or power under subsection (1):

“(3) If the Secretary has delegated a function or power under subsection (1), the Secretary may issue guidelines to the delegate with respect to the performance of the function or the exercise of the power.

Sub-delegation by delegate of Secretary

“ 12.(1) If the Secretary to the Department (‘the Secretary’) delegates a function or power under section 11 to the Secretary of another Department, the delegate may, unless the instrument of delegation prohibits it, sub-delegate the function or power, by writing signed by the delegate, to an officer of or person employed in that Department.

“(2) If the Secretary delegates a function or power under section 11 to the chief executive officer of a prescribed authority, that chief executive officer may, unless the instrument of delegation prohibits it, sub-delegate the function or power, by writing signed by the delegate, to an officer or employee of the authority.

“(3) A function or power sub-delegated under subsection (1) or (2), when performed or exercised by the sub-delegate, is taken for the purposes of this Act to have been performed or exercised by the Secretary.

“(4) A sub-delegation of a function or power under subsection (1) or (2):

(b)     subject to paragraph (c), continues in force even though:

“(5) If:

(b)     the delegate has sub-delegated the function or power; the delegate:

(c)     must issue corresponding guidelines to the sub-delegate; and

“(6) Subject to the preceding provisions of this section, sections 34AA, 34AB and 34A of the Acts Interpretation Act 1901 apply to a power to sub-delegate under this section, and to a sub-delegation given under such a power, in the same way as they would apply if the power were a power to delegate and the sub-delegation were a delegation.”.

PART 6—AMENDMENTS OF THE NATIONAL OCCUPATIONAL HEALTH AND SAFETY COMMISSION ACT 1985

Principal Act

20.     In this Part, “Principal Act” means the National Occupational Health and Safety Commission Act 19855.

21.     Section 12 of the Principal Act is repealed and the following section is substituted:

Leave of absence

“12.(1) Subject to section 87E of the Public Service Act 1922, the Chief Executive Officer has such recreation leave entitlements as are determined by the Remuneration Tribunal.

“(2) The Minister may grant the Chief Executive Officer leave of absence, other than recreation leave, on such terms and conditions as to remuneration or otherwise as the Minister determines.

“(3) The Minister may grant leave to a part-time member to be absent from a meeting of the Commission upon such conditions as the Minister thinks fit.”.

Termination of appointments

22. Section 14 of the Principal Act is amended by inserting in paragraph (4)(b) “recreation leave or” after “except on”.

National standards and codes of practice

23. Section 38 of the Principal Act is amended:

“(3) When the Commission declares a national standard or code of practice, the Commission must publish, in accordance with the regulations, the title and objective of the standard or code and information as to how interested persons may obtain a copy of the terms of the standard or code.”;

PART 7—AMENDMENTS OF THE PUBLIC SERVICE ACT 1922

Principal Act

24. In this Part, “Principal Act” means the Public Service Act 19226.

Delegations

25. Section 18 of the Principal Act is amended by adding at the end the following subsections:

“(9) If:

(a)     the Commissioner gives a delegation under subsection (1); and

(b)     the delegation is expressed to be given to persons each of whom

occupies or performs the duties of an office of a kind described in the delegation;

the delegation extends to any person who occupies, or performs the duties of, an office of the kind described in the delegation, even though the office does not come into existence until after the delegation is given.

“(10) Subsection (9) only applies to a delegation that is expressed to be made in reliance on that subsection.”.

Notification of vacancies in SES offices

26. Section 33AA of the Principal Act is amended by omitting from subsection (2) “or (b)” and substituting “, (b) or (ba)”.

Transfer of SES officers

27. Section 49 of the Principal Act is amended:

(a) by inserting after paragraph (1B)(b) the following paragraph:

Day on which transfer takes effect

28. Section 49D of the Principal Act is amended by omitting subsection (1) and substituting the following subsection:

“(1) The transfer of an officer under section 49 takes effect on the prescribed day, and salary at the rate applicable to the office concerned is payable to the officer on and from that day.”.

Application of subdivision D

29. Section 49E of the Principal Act is amended by omitting “, 51A and 52” and substituting “and 51A”.

Redeployment and retirement of SES officers

30. Section 76L of the Principal Act is amended:

(a) by inserting after subsection (1) the following subsections:

“(1A) The Commissioner must not make a decision for the purposes of subsection (1) unless:

(c)     the specified period has expired.

“(1B) The period to be specified in a notice under subsection (1A) is a period of 14 days commencing on a specified day not earlier than the day on which the notice is given.

“(1C) A notice under subsection (1A) may be given by post.”;

(c) by inserting after subsection (3A) the following subsections:

“(3B) Where subsection (1) applies in relation to an officer, the Commissioner may give written notice to the officer that the Commissioner is considering giving the officer notice under subsection (3) and specifying the effect of the proposed notice.

“(3C) A notice under subsection (3B) must invite the officer to whom it is given to give to the Commissioner his or her views in relation to the proposed notice under subsection (3) within a specified period.

“(3D) The period to be specified for the purposes of subsection (3C) is a period of 14 days commencing on a specified day not earlier than the day on which the invitation under that subsection is given to the officer.

“(3E) The Commissioner must not give notice under subsection (3) unless he or she has given the officer concerned

notice under subsection (3B) and the period specified in the notice has expired.

“(3F) A notice under subsection (3B) may be given by post.”;

Transitional Provision

31. If, before the commencement of this Part, a Secretary has made a recommendation to the Commissioner under section 49AA of the Principal Act, in relation to the transfer of an SES officer the Principal Act, as in force immediately before the commencement of this section, continues to apply to the recommendation and the making of any transfer giving effect to the recommendation.

PART 8—AMENDMENT OF THE REMUNERATION TRIBUNAL ACT 1973

Principal Act

32. In this Part, “Principal Act” means the Remuneration Tribunal Act 19737.

Establishment of Remuneration Tribunal

33. Section 4 of the Principal Act is amended by omitting from subsection (4) “, or has been during the immediately preceding period of 12 months”.

PART 9—AMENDMENT OF THE STEVEDORING INDUSTRY FINANCE COMMITTEE ACT 1977

Principal Act

34. In this Part, “Principal Act” means the Stevedoring Industry Finance Committee Act 19778.

Payments to employers in respect of satisfaction of award obligations

35. Section 8 of the Principal Act is amended by omitting from the definition of “relevant award obligation” in subsection (4) “Australian Conciliation Arbitration Commission” and substituting “Australian Conciliation and Arbitration Commission”.

PART 10—AMENDMENTS OF THE STEVEDORING INDUSTRY LEGISLATION AMENDMENT ACT 1990

Principal Act

36. In this Part, “Principal Act” means the Stevedoring Industry Legislation Amendment Act 19909.

Application of moneys of Committee

37. Section 10 of the Principal Act is amended by omitting “paragraph (a)” and substituting “paragraph (1)(a)”.

Schedule 3

38. Schedule 3 to the Principal Act is amended by omitting from the amendments made to subsection 6(2):

“(a) Omit ‘man-hours’ (wherever occurring), substitute ‘worker-hours’;”.

PART 11—AMENDMENT OF THE STEVEDORING INDUSTRY LEVY COLLECTION ACT 1977

Principal Act

39. In this Part, “Principal Act” means the Stevedoring Industry Levy Collection Act 197710.

Returns by employers

40. Section 6 of the Principal Act is amended by omitting from subsection (1) “man-hours” (wherever occurring) and substituting “worker-hours”.

NOTES

1. No. 86, 1988, as amended. For previous amendments, see No. 109, 1988; No. 153, 1989; Nos. 37, 71 and 108, 1990; Nos. 19, 62 and 122, 1991; and Nos. 52, 92, 94 and 109, 1992.
2.   No. 109, 1992.
3. No. 192, 1976, as amended. For previous amendments, see No. 9, 1978; Nos. 52 and 155, 1979; Nos. 6 and 61, 1981; No. 141, 1983; No. 63, 1984; No. 166, 1985; Nos. 6, 87, 109 and 123, 1988; No. 108, 1990; and No. 7, 1992.
4. No. 72, 1973, as amended. For previous amendments, see No. 168, 1978; No. 155, 1979; Nos. 109 and 129, 1988; and No. 199, 1991.
5. No. 35, 1985, as amended. For previous amendments, see Nos. 4 and 129, 1989; No. 108. 1990; and Nos. 122 and 199, 1991.

9.      No. 9, 1991.